Partly allowed

The Branch Manager Hdfc Ergo Genl Ins. Co. Ltd. v. Vithendra

Karnataka HC15 Jun 2022MFA/1482/2021

Case brief

AI extract

What is this about?

This judgment reviews compensation awarded in a motor vehicle accident claim. The High Court reduced the Claimant's compensation from Rs. 13,62,771 to Rs. 6,81,071 by assessing lower disability and adjusting income loss calculations. It also lowered interest from 8% to 6%.

What did the court decide?

Compensation reduced to Rs. 6,81,071 with interest at 6% per annum.

The Branch Manager Hdfc Ergo Genl Ins. Co. Ltd. Vs Vithendra — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF JUNE 2022

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BEFORE

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THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD

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MFA No.7020 OF 2021(MV) C/W MFA No.1482 OF 2021(MV)

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IN MFA 7020/2021

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BETWEEN:

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SHRI VITHENDRA S/O LATE RAMESH ACHARI AGED ABOUT 24 YEARS R/O MAKODU VILLAGE AVATHI HOBLI CHIKKAMAGALURU TALUK AND DISTRICT - 573 201.

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...APPELLANT

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(BY SRI.GIRISH B BALADARE, ADV.)

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AND:

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1 . ANIL @ ANIL S CHOWHAN S/O SHEIK AGED ABOUT 29 YEARS R/O INDIRANAGARA BASAVANA BAGAGEVADI TALUK VIJAYAPURA DISTRICT - 586 101.

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2 . K S RAJU S/O SANNEGOWDA AGED ABOUT 43 YEARS R/O UNDEDASARAHALLI

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CHIKKAMAGALURU CITY - 577 101.

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3 . THE MANAGER HDFC ERGO GENL INS. CO LTD., BRANCH OFFICE, 2ND FLOOR ESSEL CENTER, M G ROAD MANGALORE - 575 002.

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4 . SANTHOSH A L AGED ABOUT 32 YEARS S/O LOKASHETTY R/O ALAGODU (V) BALEHOLE PC, MUDIGERE TALUK CHIKKAMAGALURU DISTRICT - 577 101.

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5 . VISHWANATHA

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S/O VENAKTESH H SHETTY AGED ABOUT 43 YEARS R/O RAGHAVENDRA SWAMY MUTT ROAD BASAVANAHALLI

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CHIKKAMAGALURU DISTRICT - 577 101.

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6 . THE MANAGER NATIONAL INSURANCE CO LTD., YASHORAM CHAMBERS R G ROAD CHIKKAMAGALURU DISTRICT - 577 101.

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…RESPONDENTS

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(BY SRI.B.PRADEEP, ADV. FOR R3: SMT. GEETHA RAJ, ADV. FOR R6: NOTICE TO R1,2, 4 & 5 IS DISPENSED WITH)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:07.01.2021 PASSED IN MVC NO.525/2018 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MACT, CHIKKAMAGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA 1482/2021 BETWEEN:

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THE BRANCH MANAGER HDFC ERGO GENL INS. CO LTD., BRANCH OFFICE, 2ND FLOOR ESSEL CENTER, M G ROAD MANGALORE - 575 002. NOW REP BY ITS THE MANAGER HDFC ERGO GIC. LTD., NO.25/1, 2^ND FLOOR, BUILDING NO.2, SHANKARANARAYANA BUILDING M.G. ROAD, BANGALORE-56001.

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...APPELLANT

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(BY SRI.PRADEEP B., ADV.)

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AND:

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1 . VITHENDRA S/O LATE RAMESH ACHARI AGED ABOUT 24 YEARS R/O MAKODU VILLAGE AVATHI HOBLI CHIKKAMAGALURU TALUK AND DISTRICT - 573 201.

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ANIL @ ANIL S CHOWHAN S/O SHEIK AGED ABOUT 29 YEARS R/O INDIRANAGARA BASAVANA BAGAGEVADI TALUK VIJAYAPURA DISTRICT - 586 101.

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3 . K S RAJU S/O SANNEGOWDA

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AGED ABOUT 43 YEARS R/O UNDEDASARAHALLI CHIKKAMAGALURU CITY.

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4 . SANTHOSH A L AGED ABOUT 32 YEARS S/O LOKASHETTY R/O ALAGODU (V) BALEHOLE PC, MUDIGERE TALUK CHIKKAMAGALURU DISTRICT.

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5 . VISHWANATHA S/O VENAKTESH H SHETTY AGED ABOUT 43 YEARS R/O RAGHAVENDRA SWAMY MUTT ROAD BASAVANAHALLI CHIKKAMAGALURU CITY.

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6 . THE MANAGER NATIONAL INSURANCE CO LTD., YASHORAM CHAMBERS R G ROAD CHIKKAMAGALURU.

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…RESPONDENTS

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(BY SRI. GIRISH B BALADARE, ADV. FOR R1: SMT. GEETHA RAJ, ADV. FOR R6: NOTICE TO R2,3 & 5 IS DISPENSED WITH NOTICE TO R4 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:07.01.2021 PASSED IN MVC NO.525/2018 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MACT, CHIKKAMAGALURU AWARDING COMPENSATION OF RS.13,62,771/- WITH INTEREST AT 8 PERCENT P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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THESE MFAs COMING ON FOR ADMISSIONS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.7020/2021 has been filed by the

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Insurance Company and MFA No.1482/2021 has been filed by the claimant under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) being aggrieved by the judgment and decree dated 07.01.2021 passed by the II Additional Senior Civil Judge and MACT, Chikkamagluru in MVC No.525/2018.

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Facts giving rise to the filing of the appeals briefly stated are that on 12.05.2018 at about 04.00 P.M., the claimant was riding the motor cycle Suzuki bearing Registration No.KA-18-W-6994 as a pillion rider and his maternal uncle was riding the said vehicle in a moderate speed by observing all the traffic rules in order to go to Avathi while so riding the

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said vehicle near Makodu Bus stand, Makodu Village, Avathi Hobli, Chikkamagaluru Taluk, the driver of the Tipper Lorry bearing Registration No.KA-18-C-1152 in a rash and negligent manner with excessive speed dashed against the motorcycle in which the claimant riding as a pillion rider. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.

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On service of notice, the respondent Nos.2,

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3 and 6 have appeared through counsel and only

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respondent Nos.3 and 6 have filed written statement in which the averments made in the petition were denied.

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It was pleaded by respondent No.3 that the petition itself is false and frivolous in the eye of law. It was further pleaded that both rider of the motorcycle and the driver of the offending vehicle did not have valid driving licence as on the date of the accident. The liability is subject to terms and conditions of the policy. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant.

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Hence, he sought for dismissal of the petition.

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It was pleaded by respondent No.6 that the petition itself is false and frivolous in the eye of law. It was further pleaded that both rider of the motorcycle and the driver of the offending vehicle did not have

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valid driving licence as on the date of the accident and they are not qualified for holding or obtaining such driving license. Hence, he sought for dismissal of the petition.

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The petition against respondent No.4 to 6 is dismissed. The respondent Nos.1 and 5 did not appear before the Tribunal inspite of service of notice and were placed ex-parte.

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5. On the basis of the pleadings of the parties,

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the Claims Tribunal framed the issues and thereafter

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recorded the evidence. The claimant himself was examined as PW-1 and another witness was examined as PW-2 and Dr.D.K.Raghuveer Adiga was examined as CW-1 and got exhibited documents namely Ex.P1 to Ex.P28 and Ex.C1 to Ex.C6. On behalf of the respondents, neither examined any witness nor exhibited any documents on their behalf. The Claims Tribunal, by the impugned judgment, inter alia, held

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that the accident took place on account of rash and negligent driving of the offending vehicle 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 Rs.13,62,771/- along with interest at the rate of 8% p.a. and directed the respondent No.3/Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.

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Sri B. Pradeep, the learned counsel for the Insurance Company has raised following counter contentions:

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Firstly, even though the claimant claims that he was earning Rs.15,000/per month by doing agricultural work and coolie and he has examined his employer as PW-2, he has not produced any documents to establish his income. Therefore, the

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notional income of the claimant assessed by the Tribunal as Rs.15,000/- is on higher side.

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Secondly, CW-1, the doctor has stated in his evidence that the claimant has suffered permanent physical disability at 35%. The whole body disability assessed by the Tribunal 35% is on higher side.

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Thirdly, the injuries suffered by the clamant are minor in nature. He was inpatient in the hospital only for a period of 23 days. Considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the overall compensation awarded by the Tribunal is on higher side. Hence, he sought for reduction of compensation.

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Lastly, in view of judgment of the Division Bench of this Court in the case of MS.JOYEETA BOSE AND

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OTHERS vs. VENKATESHAN.V AND OTHERS (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the claimants are entitled for 6% interest

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but the Tribunal has granted 8% interest is on the higher side. Hence, he sought for allowing the appeal filed by the Insurance Company.

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Per contra, Sri Girish B. Baladare, learned counsel for the claimant has raised the following contentions:

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Firstly, the claimant claims that he was doing agricultural work and coolie and earning Rs.15,000/per month. To prove the same, he has examined his employer as PW-2. In his evidence, he has categorically stated that the claimant was paid monthly income of Rs.15,000/-. To that effect, the claimant has also produced Certificate as per Ex.P26. Therefore, Tribunal has rightly taken the monthly income of the claimant as Rs.15,000/-.

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Secondly, CW-1, the doctor has stated in his evidence that the claimant has suffered permanent physical disability at 35% and he was aged about 21

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years. The Tribunal considering the same, has rightly assessed the whole body disability at 35%.

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Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 23 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment. Considering the same, the compensation granted by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other heads are on the lower side. Hence, he sought for enhancement of compensation.

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Smt. Geetha Raj, learned counsel

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appearing for respondent No.6/National Insurance Company has contended that there is no liability fastened on the respondent No.6/National Insurance Company and it is only a formal party.

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9. Heard the learned counsel for the parties

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and perused the judgment and award.

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It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver.

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The claimant claims that he was earning Rs.15,000/- per month and he has examined his employer as PW-2, who has categorically deposed that he was paying Rs.500/- per day to the claimant and he has also produced Certificate as per Ex.P26. Considering the same, the Tribunal is justified in assessing the monthly income of the claimant as Rs.15,000/-.

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Due to accident, the claimant has sustained deforming and selling right knee joint, type 2 open communities surgery, fracture of right femur, injury

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on right knee joint 5X10 cms., trauma consequences of the injuries and pecuniary damages. CW-1, the doctor has stated in his evidence that the claimant has suffered permanent physical disability at 35% but he has not assessed the whole body disability. Therefore, taking into consideration the deposition of the doctor, CW-1 and injuries suffered by the claimant, I am of the opinion that the whole body disability can be assessed at 12%. The claimant is aged about 21 years at the time of the accident and multiplier applicable to his age group is ‘18’. Thus, the claimant is entitled for compensation of Rs.3,88,800/(Rs.15,0001218*12%) on account of 'loss of future income'.

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The nature of injuries suggests that the claimant must have been under rest and treatment for a period of 03 months. Therefore, the claimant is entitled for

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compensation of Rs.45,000/- (Rs.15,000*3 months) under the head ‘loss of income during laid up period’.

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Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He was treated as inpatient for more than 23 days. He has suffered lot of pain during treatment and he has to suffer with the disability stated by the doctor throughout his life. Considering the same, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'loss of amenities and injuries' from Rs.50,000/- to Rs.60,000/- and ‘pain and suffering’ from Rs.30,000/- to Rs.50,000/-.

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Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the following compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	30,000	50,000
Medical expenses	1,12,771	1,12,771
Food, nourishment, conveyance and attendant charges	24,500	24,500
Loss of income during laid up period	11,500	45,000
Loss of amenities and injuries	50,000	60,000
Loss of future income	11,34,000	3,88,800
Total	13,62,771	6,81,071

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In the result, the appeals are disposed of. The judgment of the Claims Tribunal is modified.

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The claimant is entitled to a total compensation

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of Rs.6,81,071/- as against * Rs.13,62,771/- awarded by the Tribunal.

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In view of judgment of the Division Bench of this Court in the case of ‘MS.JOYEETA BOSE’, the interest awarded by the Tribunal 8% is scale down to 6%.

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The Insurance Company is directed to deposit the compensation amount along with interest @ 6%

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*Corrected vide Chamber order dated: 13.07.2023

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p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.

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The amount in deposit shall be transmitted to the Tribunal.

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If there is any excess amount deposited by the Insurance Company, the same may be refunded to the Insurance Company after due verification.

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Sd/JUDGE

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HA/-

The Branch Manager Hdfc Ergo Genl Ins. Co. Ltd. v. Vithendra

Case brief

What is this about?

What did the court decide?

The Branch Manager Hdfc Ergo Genl Ins. Co. Ltd. v. Vithendra

Case brief

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