Partly allowed

Sri Jayarama v. Iffco Tokio General Insurance Co.Ltd.

Karnataka HC16 Jun 2021MFA/6988/2019

Case brief

AI extract

What is this about?

This is a Motor Accidents Appeal arising from a judgment awarding Rs. 22,92,000 to a motor accident claimant. The High Court, upholding the finding of 100% functional disability, enhanced the total compensation to Rs. 45,17,600. The enhancement covers increased future earnings, attendant charges, medical expenses, and non-pecuniary losses, aligning with Apex Court guidelines.

What did the court decide?

The compensation was enhanced to Rs. 45,17,600/- with interest at 6% per annum from the date of petition.

Sri Jayarama Vs Iffco Tokio General 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 16^TH DAY OF JUNE 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.6988 OF 2019 (MV-I)

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BETWEEN:

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SRI JAYARAMA S/O LATE G. GUNDAIAH @ G. GUNDAPPA AGED ABOUT 37 YEARS R/O. JYOTHINAGAR SIRA TOWN-572137 TUMAKURU DISTRICT.

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... APPELLANT

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(BY SRI V.B. SIDDARAMAIAH, ADVOCATE)

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AND:

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IFFCO-TOKIO GENERAL INSURANCE CO. LTD SRI SHANTHI TOWER NO.141 5TH FLOOR 3RD MAIN, EAST TO NGEF LAYOUT KASTHURI NAGAR BENGALURU-560 043 REPRESENTED BY ITS BRANCH MANAGER.

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SRI B. SATHYANARAYANA S/O SANJEEVAPPA AGED ABOUT 42 YEARS R/O. NO.5, KATARAYA NAGAR MAIN ROAD, MANJUNATHA NAGARA BENGALURU-560 073.

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...RESPONDENTS

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(BY SRI M.N. KESHAVA PRASHANTH, ADV. FOR R-1;

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NOTICE TO R-2 IS DISPENSED WITH VIDE ORDER DATED 23.12.2020)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 4.10.2018 PASSED IN MVC NO.288/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MACT, SIRA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. COMING ON FOR ADMISSION, 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

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Act, 1988 (hereinafter referred to as 'the Act' for short) is filed by the claimant seeking enhancement of the amount of compensation, against the judgment dated 4.10.2018 passed by the Senior Civil Judge and Additional Motor Accident Claims Tribunal, Sira in MVC No.288/2017.

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Facts leading to filing of this appeal briefly stated

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are that on 16.11.2016 at about 4.30 p.m., when the claimant was waiting for the bus at Kotta gate bus stand, at that time, the rider of motorcycle bearing registration No.KA04.HT.2909, rode the same in a rash and negligent manner and dashed against the claimant and due to the impact, the

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claimant fell down and sustained grievous injuries. Thereafter claimant was immediately admitted to Government Hospital for initial treatment and thereafter he was shifted to the NIMHANS Bengaluru for higher treatment, K.C. General Hospital, Bengaluru, Abhaya Hospital, Bengaluru and then to Hemavathi Hospital, Tumakuru for further treatment and incurred huge amount towards medical expenses.

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The claimant thereupon filed a petition under Section 166 of the Act inter alia on the ground that due to the injuries sustained by him he is not in a position to do his day to day work and has suffered physical and mental agony. He further stated that the accident occurred due to the rash and negligent riding by the rider of the motorcycle and sought for compensation of Rs. 50,00,000/-.

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It is pleaded that the claimant incurred huge amount towards medical and other incidental expenses. It was further pleaded that he was running a hotel by name and style as Nammora Dabha family restaurant and also doing agricultural work and was earning Rs.25,000/- p.m. and due to the injury sustained by him he is unable to

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perform his activities as he used to perform prior to the accident. It was further pleaded that the accident occurred only due to the rash and negligent riding by the rider of the motorbike i.e. respondent No.2. The claimant was aged 35 years at the time of the accident.

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The respondent No.2 though served with notice remained absent. The Insurer filed written statement contending that the motorcycle in question is falsely implicated in the accident by the claimant in collusion with the jurisdictional Police. The age, occupation, income and injuries sustained by the claimant was denied. It was also pleaded that liability of the insurance company to pay the compensation, if any, is subject to the terms and conditions of the policy. It was also pleaded that the rider of the motorcycle did not possess valid and effective driving license at the time of the accident. It was also stated that the compensation claimed by the claimant is highly excessive, speculative and exorbitant. Hence, sought for dismissal of the claim petition.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant, in order to prove his case, examined himself as PW-1 and Dr. Prasad Murugappa Gowda as (PW2) and got exhibited documents namely Ex.P1 to Ex.P17. The respondents neither examined any witness nor got exhibited any document. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the motorbike by its rider, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.22,92,000/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 Tribunal has grossly erred in assessing the income of the claimant as Rs.9,000/- per month and in any case, the same ought to have been taken as per the guidelines framed by the Karnataka State Legal Services Authority. It is further

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submitted that the claimant has sustained 100% functional disability and as such he is entitled for 40% of assessed income towards future prospects in view of the decision of the Apex Court in the case of PAPPU DEO YADAV V. NARESH KUMAR AIR 2020 SC 4424. It is further submitted that the compensation awarded under the other incidental heads are also on lower side. In support of his submission he has placed reliance on the decision of the Apex Court in the case of KAJAL Vs. JAGDISH CHAND AND OTHERS reported in AIR 2020 SC 776 . Hence, he seeks enhancement of compensation.

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On the other hand, learned counsel for the insurance company submitted that no evidence has been adduced by the claimants to prove the income and age of the claimant before the Tribunal and that the Tribunal has rightly taken the income of the claimant at Rs.9,000/- per month. It is further submitted that the disability assessed by the Tribunal and the amount of compensation awarded by the Tribunal under all the heads is just and proper and does not call for any interference.

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We have considered the submissions made by learned counsel for the parties and have perused the record. The only question which arises for our consideration in this appeal is with regard to the quantum of compensation. Admittedly, the claimant has not produced any evidence with regard to proof of his income. Since the accident is of the year 2016, notional income of the claimant is to be assessed as per the guidelines issued by the Karnataka Legal Services Authority, which comes to Rs.9,500/- per month. PW.2 Dr. Prasad Murugappa Gowda has stated in his evidence that the claimant has suffered functional disability to the extent of 100% to the whole body. The wound certificate at Ex.P.6 indicates that the claimant had suffered the following injuries:

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(1) D8-D9 Vertibrae fracture with paraplegia

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(2) Bed sore

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(3) Head Injury.

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The Tribunal after considering the medical evidence has assessed the functional disability of the claimant at 100%. The said finding has attained finality.

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The Tribunal while awarding compensation under the head 'loss of future earning capacity' has not added to the income of the claimant in order to award compensation towards future prospects. In view of the decision of the Apex Court in the case of PAPPU DEO YADAV V. NARESH KUMAR AIR 2020 SC 442, the claimant who was aged 35 years as on the date of the accident and suffered 100% functional disability is entitled for 40% of the assessed income towards loss of future prospects. Hence, the claimant is entitled for compensation of Rs.25,53,600/-(Rs.9,500+3,800 x 12 x 100 x 16/100) under the head 'loss of earning capacity'.

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The Apex Court in the case of Kajal supra has awarded compensation of Rs.21,60,000/- towards attendant charges, Rs.15,00,000/- towards "pain and sufferings' and "loss of amenities" and Rs.3,00,000/- towards loss of "marriage prospects" to the minor girl who was aged 12 years as on the date of the accident and suffered 100% disability due to accidental injuries. In the present case, the claimant was aged 35 years and married as on the date of the accident. Though the claimant is not entitled for

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compensation on par with the compensation awarded in the case of Kajal supra, he is entitled for enhancement of compensation. When compensation is paid in lumpsum, the Tribunal has to follow the multiplier system as t is used to balance out various factors. This system need not only be limited to the computation of loss of dependency or loss of future earnings. It can also be applied in respect of Attendant Charges. [SEE : KAJAL Vs. JAGDISH CHAND

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AND OTHERS 2020 SCC ONLINE SC 1271] . By considering the medical evidence on record the claimant will require an attendant so as to handle the claimant to carry out his day to day activities. Hence, by taking the notional income of the attendant at Rs.5,000/- per month, applying multiplier of '16', the claimant is entitled to a sum of Rs. 9,60,000/- (5,000 x 12 x 16) towards attendant charges.

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The Tribunal has awarded Rs.3,40,000/- towards medical expenses, conveyance, nutritious food and attendant charges, though the claimant has spent Rs.3,38,000/towards medical treatment which is evident from Ex.P.10 & Ex.P.11. The claimant was in-patient for a period of 51 days

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and he was initially treated at Government Hospital at Sira and thereafter on medical advice he was shifted to NIMHANS, Bengalulru and thereafter K.C. General Hospital, Bengaluru and thereafter Abhaya Hospital, Bengaluru. Hence, it would be appropriate to enhance the compensation to Rs.4,50,000/- towards medical expenses etc.

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The Tribunal has awarded compensation of Rs.20,000/- towards future medical expenses. However, considering the nature of disability sustained by the claimant, it would appropriate to enhance the same to Rs.50,000/-.

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The Tribunal has awarded Rs.1,00,000/- towards pain and sufferings and has failed to award any compensation towards loss of amenities. By considering the nature of injuries sustained by the claimant it would be appropriate to award a sum of Rs.2,00,000/- towards pain and sufferings and Rs.2,50,000/- towards loss of amenities and future happiness.

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Thus, the claimant is entitled to the modified compensation as under:

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Heads of compensation	Amount awarded by the Tribunal	Amount awarded by this Court
Loss of future income	17,28,000-00	25,53,600-00
Pain and Sufferings including mental agony	1,00,000-00	2,00,000-00
Loss of amenities and future happiness	-	2,50,000-00
Loss of earnings during the laid up period	54,000-00	54,000-00
Attendant charges	-	9,60,000-00
Medical expenses, conveyance & nutrition food	3,40,000-00	4,50,000-00
Future medical expenses	20,000-00	50,000-00
Total	22,92,000-00	45,17,600-00

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The claimant is entitled to a total compensation of Rs.45,17,600/- as against Rs.22,92,000/- awarded by the Tribunal, with interest at the rate of 6% per annum from the date of petition till realization. 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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Sri Jayarama v. Iffco Tokio General Insurance Co.Ltd.

Case brief

What is this about?

What did the court decide?

Sri Jayarama v. Iffco Tokio General Insurance Co.Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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