Partly allowed

Sri S.N.Narasimha Murthy @ Murthy v. Shriram General Insurance Company Ltd.

Karnataka HC19 Jul 2021MFA.CROB/8/2015

Case brief

AI extract

What is this about?

In this first appeal, the High Court enhanced motor accident compensation awarded to a claimant suffering from amputation. The court applied legal standards for future prospects and disability quantum while denying interest on the enhanced portion due to the claimant's delay in clubbing appeals.

What did the court decide?

Compensation enhanced to Rs.14,32,560. Interest on enhanced amount from 08/08/2018 to date denied.

Sri S.N.Narasimha Murthy @ Murthy Vs Shriram General… — 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 19^TH DAY OF JULY, 2021

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PRESENT

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THE HON’BLE MRS. JUSTICE S. SUJATHA

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AND

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THE HON’BLE MR. JUSTICE E.S. INDIRESH

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MISCELLANEOUS FIRST APPEAL CROB NO.8 OF 2015

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BETWEEN

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Sri S N Narasimha Murthy @ Murthy S/o Narayanaswamy Age 35 years R/at Siddepalli Village Gudimallelahalli Post Chintamani Taluk Chikkaballapur District.

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….Cross-objector

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(By Shri N. Gopalkrishna, Advocate )

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AND

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Shriram General Insurance Company Ltd. No.S-5, III Floor Monarch Chambers Infantry Road Bangalore. Represented by Shriram General III Floor, S & S Corner Building Opp:Bowring & Lady Curzon Hospital, Shivajinagar Bengaluru-560 001.

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Smt. Stellamary W/o Patric Babu Major in age R/at No.152-2 Arogyaswamy Mutt House, T C Palya K R Puram Bengaluru-560 036.

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Manging Director Andhra Pradesh State Road Transport Corporation Musheerabad Hyderabad Andhra Pradesh-517 501.

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O Srikanth Reddy S/o O Venkatareddy Major in age R/at No.1-5-547 Balaji Colony, Tirupathi Chittor District Andhra Pradesh.

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HDFC ERGO Gen. Insurance Co. Ltd I Floor, H M Geneva House No.14, Cunningham Road Bengaluru-560 052. Represented by its Manager.

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…Respondents

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(By Shri A N Krishnaswamy, Advocate for R1; Sri H S Lingaraju, Advocate for R5 Notice to R2 to 4 are dispensed with)

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This MFA Crob No.8 of 2015 is filed in MFA No.1591 of 2014 under Order XLI Rule 22 of the CPC. 173(1) of Motor Vehicles Act, against the judgment and award dated 07.11.2013 passed in MVC No.8154 of 2010 on the file of the XII Additional Small Causes Judge, Member, Motor Accident Claims Tribunal,

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Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.

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This Miscellaneous First appeal Crob. coming on for admission, this day, INDIRESH J., delivered the following:

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J U D G M E N T

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This Cross-objection is filed by the claimant in MFA No.1591 of 2014 challenging the judgment and award dated 07^th November, 2013 passed in MVC No.8154 of 2010 on the file of the Motor Accident Claims Tribunal, Bangalore (for short, hereinafter referred to as 'the Tribunal’.

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The Insurance Company has challenged the impugned judgment and award in MFA No.1591 of 2014 on liability and this Court by judgment dated 08^th August, 2018. disposed of the appeal apportioning the liability between the appellant No.1 in the Cross-objection, i.e. Insurer of the lorry bearing registration No.KA-03-5297 and the insurer of the APSRTC bus bearing registration No.AP-03/Y-2773 in the ratio of 70:30 respectively. The present cross-objection is filed by the claimant seeking enhancement of compensation.

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For the sake of convenience, the parties in this appeal are referred to with their status and rank before the Tribunal.

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It is the case of the claimant that he was proceeding in

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a lorry bearing registration No.KA-53-5297 along with others on 24^th June, 2010 and the said lorry met with accident with the APSRTC Contract Bus bearing registration No.AP-03/Y-2773 and as a result of the same, the claimant has sustained injuries and immediately he was shifted to RL Jalappa Hospital, Kolar for first aid treatment and thereafter, shifted to Abhaya Hospital, Bengaluru for further treatment. Hence, the claimant filed MVC No.8154 of 2010 before the Tribunal seeking compensation. The respondents entered appearance and filed detailed written statement denying the averments made in the claim petition. In order to prove his case, claimant was examined as PW2 and has examined the Doctor as PW4 and produced documents in support of his evidence. The respondents adduced evidence as RW1 and produced copy of the policy marked as Exhibit R1. The Tribunal, after considering the material on record, by its judgment and award dated 07^th November, 2013 awarded

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compensation of Rs.8,65,600/- with interest at the rate of 6% per annum from the date of claim petition till realisation and apportioned the liability on both the vehicles in question, in the ratio of 70:30. Being not satisfied with the compensation awarded by the Tribunal, claimant has preferred this crossobjection in MFA No.1591 of 2014.

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We have heard Sri N. Gopalkrishna, learned counsel appearing for the cross-objector and Sri A.N. Krishnaswamy and Sri H.S. Lingaraju, learned counsel appearing for the respondent-Insurance Companies.

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Sri N Gopalkrishna, learned counsel appearing for the cross-objector argued that the claimant has sustained amputation to left leg above knee and therefore, the compensation awarded by the Tribunal is inadequate and requires to be enhanced.

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Per contra, learned counsel appearing for the Insurance

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Companies, argued that the compensation awarded by the Tribunal is based on the medical records and therefore no interference is required to disturb the quantum of compensation.

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We have given our anxious consideration to the submission made by the learned counsel appearing for the parties and examined the material on record. It is not in dispute that the claimant sustained grievous injuries on account of the accident occurred on 24^th June, 2010. This Court, in MFA No.1591 of 2014 has dismissed the appeal preferred by the Insurance Companies with regard to liability and the same has reached finality.

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Insofar as quantum of compensation is concerned, it is the case of the claimant that he was working as a cleaner in the lorry and on account of the said accident, he suffered permanent disablement. In order to prove the permanent disablement, claimant has examined PW4-Doctor, who deposed that the claimant sustained crush injury to the left leg and amputation of the same above knee and as such, PW4-Doctor opined that claimant sustained permanent disability to an extent of 80% to the whole body. Taking into account the injury sustained by the claimant, i.e. amputation of left leg above knee which would come in the way of his earning capacity so also, in view of the

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said disablement he cannot continue his occupation as a cleaner in the lorry; and in the light of the judgment of the Hon'ble Supreme Court in the case of PAPPU DEO YADAV v. NARESH KUMAR AND OTHERS reported in AIR 2020 SC 4424, we are of the considered opinion that there is no evidence adduced by the claimant to prove that he is fully disabled from continuing with any other alternative occupation and therefore, the contention raised by the claimant to accept the disablement at 100% is ruled out. However, the claimant is entitled for future prospects at 40% in terms of the law declared by Hon'ble Supreme Court in the case of PAPPU DEO YADVA (supra) and in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in 2017 ACJ 2700. The Tribunal, has assessed the disability at 70% based on the evidence of PW4 and the medical records and same is accepted in this appeal also. In order to assess the actual income of the deceased, claimant has not proved his income and therefore, taking into consideration the year of accident which is 2010, as per Lok Adalat chart, the notional income that is being assessed is at Rs.5,500/- per month. Medical records show the age of the

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claimant as 30 years and in terms of the law declared by the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in 2009 ACJ 1298, the appropriate multiplier would be 17. Hence, the loss of future income due to disability is Rs.10,99,560/- (Rs.7,700% x 12 x 17 x 70/100). Taking into consideration the injury sustained by the claimant, Rs.50,000/is awarded towards loss of amenities. Award of Rs.20,000/Conveyance, attendant charges, food and nourishment; Rs.1,00,000/- towards pain and suffering and Rs.63,000/- is unaltered. Since, the claimant has sustained amputation of left leg above knee, Rs.1,00,000/- is awarded towards artificial limb. In total, the claimant is entitled for compensation as follows:

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Sl.No.	Head of compensation	Amount (in Rs.)
1.	Loss of future income due to disability	10,99,560
2.	Loss of amenities in life, happiness and frustration	50,000
3.	Conveyance, attendant charges, food and nourishment	20,000
4.	Pain and suffering	1,00,000
5.	Medical expenses	63,000
6.	Artificial limb	1,00,000
	Total	14,32,560

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It is discernable that MFA No.1591 of 2014 filed by the insurer challenging the judgment and award passed in MVC No.8154 of 2010 came to be disposed of on 08^th August, 2018, modifying the negligence aspect without disturbing quantum of compensation. However, no effective steps were taken by the cross objector immediately after filing of the appeal on 09^th February, 2015 to keep the matter ready for admission or requested for clubbing of this matter along with the pending Miscellaneous First Appeals which shows the negligence on the part of the claimant for which the insurance company should not be burdened with the penalty of paying interest for the negligence of the claimant. Hence, we deem it appropriate to deny the interest from the date of disposal of the MFA No.1591 of 2014 on 08^th August, 2018 till date on the entire enhanced compensation of Rs.5,66,960/-.

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Hence, the following:

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O R D E R

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i) Cross Objection filed by the claimant is allowed in part;

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ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.14,32,560/- (Rupees Fourteen lakh thirty two thousand five hundred sixty only) as against Rs.8,65,600/- with interest at 6% p.a. However, interest on the enhanced compensation from 08^th August, 2018 to till date is denied;

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iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact;

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iv) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order;

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