Sri Chikkanna Vs Tata Aig General Insurance Company Ltd.

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^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.1697 OF 2019(MV)

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BETWEEN:

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SRI.CHIKKANNA, S/O SAMBEGOWDA, AGED ABOUT 62 YEARS, R/O MARALEBEKUPPE VILLAGE & POST, HUYAMABLLI HOBLI, KANAKAPURA TALUK – 562 117. RAMANAGARA DISTRICT.

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…APPELLANT

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(BY SRI.GIRIMALLAIAH., ADVOCATE)

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AND:

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TATA AIG GENERAL INSURANCE COMPANY LTD., NO.69, 3^RD FLOOR, J.P.& DEVI, JAMBUKESHWARA ARCADE, MILLERS ROAD, BENGALURU – 560 052.

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MR. MANJUNATHA.M.C., S/O CHIKKA MARIGOWDA, MAJOR (AGE NOT KNOWN TO APPELLANT) B.K.G.LAYOUT, ADICHUNCHANAGIRI, OPP:KALLAHALLI POST, KASABA HOBLI,

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KANAKAPURA TALUK – 562 117 RAMANAGARA DISTRICT.

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…RESPONDENTS

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(BY SRI.JANARDHAN REDDY, ADVOCATE FOR R1; NOTICE TO R2 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST JUDGMENT AND AWARD DATED 29.09.2018 PASSED IN MVC NO.2744/2017, ON THE FILE OF XXII ASCJ & XX ACMM, & MEMBER, MACT, BENGALURU (SCCH24), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 173(1) of Motor

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Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant being aggrieved by the judgment and decree dated 29.09.2018 passed by the XXII ASCJ & XX ACMM & Member MACT, Bengaluru in MVC No.2744/2017.

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Facts giving rise to the filing of the appeal

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briefly stated are that on 30.03.2017 at about 12.30 P.M., the claimant along with another were going by

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the side of the M.G.Road at Panduranga Temple, Near S.B.M., ATM, Kanakapura Town, at that time, the rider of the motor cycle bearing Registration No.KA-42-S3979 came at high speed, in rash and negligent manner and dashed against the claimant. 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.1

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and 2 being the insurer and owner of the offending vehicle have appeared through counsel and filed

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written statement in which the averments made in the petition were denied.

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It was pleaded by the insurer that the petition itself is false and frivolous in the eye of law. The rider 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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It was pleaded by the owner that the petition itself is false and frivolous in the eye of law. It was further pleaded that the offending vehicle was insured with Insurance Company and the policy was in force as on the date of the accident. Hence, the Insurance Company is liable to pay the compensation. Hence, he sought for dismissal of the petition.

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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 recorded the evidence. The claimant himself was examined as PW-1 and Dr. Avinash Parthasarathy was examined as PW-3/4 and examined another witness as PW-5 and got exhibited documents namely Ex.P1 to Ex.P19. On behalf of the respondents, neither examined any witness nor exhibited any document on their behalf. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the offending vehicle 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.1,57,600/- along with interest at the rate of 8% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.

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6. Sri Girimallaiah, learned counsel for the

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claimant has raised the following contentions:

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Firstly, even though the claimant claims that he was doing agriculture and earning Rs.12,000/- per month, but the Tribunal has taken the notional income as merely as Rs.5,000/- per month.

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Secondly, due to the accident, the claimant has sustained grievous injuries. He has examined the doctor. He has deposed that the claimant has suffered 18% disability to the whole body. But whole body disability assessed by the Tribunal 10% is on lower side. He was treated as inpatient for a period of 29 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 'pain and sufferings' and other heads are on the lower side. The Tribunal has failed to

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grant the compensation under the head of 'loss of amenities'. Hence, he sought for allowing the appeal.

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Per contra, Sri Janardhan Reddy, 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.12,000/- per month, he has not produced any documents to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally.

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Secondly, the injuries suffered by the clamant are minor in nature. Even though the doctor has deposed that the claimant suffered 18% disability to the whole body, but he has not assessed the limb disability to assess the whole body. Therefore, the Tribunal has rightly assessed the whole body disability at 10%.

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Thirdly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the overall compensation awarded by the Tribunal is just and reasonable 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 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 but the Tribunal has granted 8% interest is on the higher side. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties

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and perused the original records.

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It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred

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due to rash and negligent riding of the offending vehicle by its rider.

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The claimant claims that he was earning Rs.12,000/- per month. He has not produced any documents to prove his income. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2017., the notional income has to be taken at Rs.11,000/- p.m.

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As per wound certificate, the claimant has sustained swelling, tenderness, deformity present left thigh CLW 3X3cm and X-ray shows that segmental fracture left femur. PW-3/4, the doctor has stated in his evidence that the claimant has suffered 18% to whole body but he has not assessed the limb disability. Therefore, taking into consideration the deposition of the doctor and injuries mentioned in the

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wound certificate, I am of the opinion that that the whole body disability can be assessed 12%. The claimant is aged about 64 years at the time of the accident and multiplier applicable to his age group is ‘7’. Thus, the claimant is entitled for compensation of Rs.1,10,880/- (Rs.11,000127*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 3 months. Therefore, the claimant is entitled for compensation of Rs.33,000/- (Rs.11,000*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 29 days in the hospital. 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

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of the opinion that the claimant is entitled for 'loss of amenities' Rs.40,000/-.

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Considering the nature of injuries, the

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compensation awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the

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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	50,000	50,000
Medical expenses	20,590	20,590
Food, nourishment, conveyance and attendant charges	20,000	20,000
Loss of income during laid up period	15,000	33,000
Loss of amenities	0	40,000
Loss of future income	42,000	1,10,880
Future medical expenses	10,000	10,000
Total	1,57,590	2,84,470

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In the result, the appeal is allowed in part . The judgment of the Claims Tribunal is modified.

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The claimant is entitled to a total compensation of Rs.2,84,470/- as against Rs.1,57,590/- 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 enhanced compensation shall carry interest at 6% per annum.

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The Insurance Company is directed to deposit the compensation amount along with interest @ 8% p.a. (enhanced compensation shall carry interest at 6% per annum) 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 excluding interest for the compensation awarded under the head of 'future medical expenses'.

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Sd/JUDGE

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HA/-

Sri Chikkanna v. Tata Aig General Insurance Company Ltd.

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Sri Chikkanna v. Tata Aig General Insurance Company Ltd.

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