Partly allowed

Mr. Asib @ Asif v. United India Insurance Co.Ltd.

Karnataka HC9 Aug 2021MFA/5936/2017

Case brief

AI extract

What is this about?

The Division Bench enhanced compensation awarded to the appellant for a motor accident. Following Pappu Deo Yadav guidelines, the court modified the award for loss of future earning capacity and corrected the prosthesis costs based on documentary evidence, reducing the claims tribunal's amount.

What did the court decide?

Total compensation enhanced to Rs. 20,08,200 including Rs. 5,21,200 for enhanced future earning capacity and prosthesis costs, with interest at 6% p.a.

Mr. Asib @ Asif Vs United India Insurance Co.Ltd. — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9TH DAY OF AUGUST 2021

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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M.F.A. NO.5936 OF 2017 (MV-I)

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BETWEEN:

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MR. ASIB @ ASIF, S/O LATE UNHI BEARY, AGED ABOUT 40 YEARS, R/AT RUKYA MANZIL, D/NO.90/51, THADAMBAIL, SURATHKAL POST-574158 MANGALORE TALUK, D.K ...APPELLANT

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(BY SRI GURUDEVPRASAD B.R, ADVOCATE)

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AND:

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UNITED INDIA INSURANCE CO.LTD., SREE VITTAL MAIN ROAD, SURATHKAL, MANGALORE-574158 REPRESENTED BY ITS MANAGER.

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MR. PRASHANTH VEIGAS

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S/O SIRIL @ CYRIL VEIGAS, AGED ABOUT 32 YEARS, PERMANENT RESIDENT OF HOUSE NO.238/1 GARDADI,

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BELTHANGADY TALUK-574229. ...RESPONDENTS

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(BY SRI A RAVISHANKAR, ADVOCATE FOR R1, V/O/DTD 24.05.2021 NOTICE TO R2 IS D/W)

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THIS M.F.A. IS FILED UNDER SECTION 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.12.2016 PASSED IN MVC NO.1689/2014 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, & MACT-II, MANGALURU, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. COMING ON FOR FURTHER ORDERS, THIS DAY, HEMANT CHANDANGOUDAR J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) is filed against the judgment and award dated 6.12.2016 in MVC No.1689/2014 passed by the I Addl. District Judge and II Addl. Motor Accident Claims Tribunal, Mangaluru (DK) (hereinafter referred to as 'the Tribunal' for short).

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Facts leading to filing of this appeal briefly stated

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are that on 14.09.2014 at about 9.15 a.m., when the claimant was proceeding on his motorcycle from Mangaluru side towards his house i.e. Udupi side and when he reached near Municipal Office at Surathkal in Idya village of Mangaluru Taluk, at that time, a car driven by its driver in a rash and negligent manner came from opposite side i.e. from Udupi side towards Mangaluru and dashed against the motorcycle resulting in accidental injuries. Immediately, he

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was shifted to Unity Health Complex, Mangalore, wherein he took treatment as an inpatient from 14.9.2014 to 4.10.2014.

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The claimant thereupon filed a petition under Section 166 of the M.V. Act inter alia on the ground that the claimant after the accident is not able to stand on his own and do his work as before. It was also claimed that the claimant was aged about 37 years and earning Rs.30,000/per month by doing Real Estate Business. The claimant claimed compensation to the tune of Rs.35,00,000/- along with interest.

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After service of notice, respondent No.1 did not appear and he was placed exparte and respondent No.2 appeared through its counsel and filed written statement.

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The respondent No.2 filed written statement inter

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alia, in which, the mode and manner of the accident was denied. The age, occupation, income and injuries sustained by the claimant were denied. However, it admitted the existence of policy. It was also pleaded that liability of the Insurance Company to pay the compensation, if any, is

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subject to the terms and conditions of the policy. It was also pleaded that the driver of the offending vehicle did not possess valid and effective driving license as on the date of accident. It was pleaded that the claimant could not control his motor cycle and came on the wrong side of the road and dashed against the car and as such he is liable for contributory negligence. It was also stated that the compensation claimed by the claimant is highly excessive, speculative and exorbitant.

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On the basis of the pleadings of the parties, the Tribunal framed the issues and thereafter recorded the evidence. The claimant, in order to prove his case, examined himself as PW1 and one witness as PW2 and exhibited documents namely Ex.P1 to Ex.P13. The respondent No.2 produced the document as Ex.R1.

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The Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the car by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of

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Rs.14,87,000/- along with interest at the rate of 6% p.a. Being aggrieved, this appeal is filed by the claimant seeking enhancement of the amount of compensation.

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Learned counsel for the claimant submitted that

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the claimant suffered disability to the extent of 85% to the right lower limb and 10% to the left lower limb. He submitted that the said disability has to be considered at 100%. However, the Tribunal has erroneously taken the disability at 60%. It is further submitted that the Tribunal has erred in not making an addition to the tune of 40% to the income of the claimant on account of future prospects in view of the law laid down by the Supreme Court in PAPPU DEO YADAV V. NARESH KUMAR AIR 2020 SC 4424. He further submits that the compensation awarded under other conventional heads is on the lower side.

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On the other hand, learned counsel for the Insurance Company submitted that the compensation awarded by the Tribunal is just and proper and the same does not call of any interference.

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We have considered the submissions made by learned counsel for the parties and have perused the record.

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The only question which arises for our consideration in this appeal is with regard to the quantum of compensation.

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Admittedly, the claimant has not produced any evidence with regard to his income. Therefore, the notional income of the claimant is to be assessed as per the guidelines issued by the Karnataka Legal Services Authority. Since the accident is of the year 2014, notional income comes to Rs.8,500/- per month. The doctor who was examined as PW2 has stated in his evidence that the claimant has suffered the disability at 85% with respect to right lower limb and avulsed laceration measuring 10 x 8 cms. over the left foot and abrasion over skin and tenderness over the left side of the chest. Since PW2 is not the doctor who treated the claimant, the Tribunal has rightly assessed the functional disability at 60% to the whole body. In the absence of contrary evidence, the disability assessed

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by the Tribunal cannot be faulted with. The claimant was aged about 37 years as on the date of accident .

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In view of the decision of the Apex Court in the case of PAPPU DEO YADAV (supra), 40% of the assessed income should be added towards future prospects which comes to Rs.11,900/-. Hence, the claimant is entitled for compensation of Rs.12,85,200/- (Rs.11,900/- x 12 x 15 x 60/100) towards loss of future earning capacity.

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Ex.P12 is the invoice dated 13.1.2015 issued by the Endolite India Ltd. to show that the cost of prosthesis would be Rs.2,58,491.25 However, the Tribunal without any basis has come to the conclusion that it would be just and proper to award a sum of Rs.1,50,000/- towards expenses of prosthesis. In the absence of contrary evidence, it would be appropriate to award a sum of Rs.2,50,000/- towards cost of prosthesis as against Rs.1,50,000/- awarded by the Tribunal.

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The compensation amount awarded under other heads are just and proper and the same is maintained.

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Thus the claimant is entitled for total compensation of Rs.20,08,200/-. The enhanced compensation Rs.5,21,200/- shall carry interest at the rate of 6% p.a. from the date of filing of the petition till the date of realization of the amount. To the aforesaid extent, the judgment of the claims Tribunal is modified.

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Accordingly, the appeal is disposed of.

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Sd/JUDGE

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Sd/JUDGE

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bkm

Mr. Asib @ Asif v. United India Insurance Co.Ltd.

Case brief

What is this about?

What did the court decide?

Mr. Asib @ Asif v. United India Insurance Co.Ltd.

Case brief

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What did the court decide?

What the court decided

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