Partly allowed

Sri Mariyanna @ Mariyappa v. M/S Hdfc Ergo General Insurance Co. Ltd.

Karnataka HC23 Nov 2022MFA/1756/2014

Case brief

AI extract

What is this about?

The High Court allowed a motor accident appeal filed for enhancement of compensation. The Court found the Tribunal underestimated the claimant's income and injury severity. Consequently, amounts under future loss of income, pain and suffering, loss of amenities, and attendant charges were enhanced, while the award for disability and disfigurement was quashed.

What did the court decide?

Modified compensation award to Rs.1,62,490/- with 8% interest from the date of petition till deposit, and directed to be paid by the Insurance Company within six weeks.

Sri Mariyanna @ Mariyappa Vs M/S Hdfc Ergo General Insurance Co… — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.1756/2014 (MV-I)

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BETWEEN:

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SRI MARIYANNA @ MARIYAPPA, S/O LATE BAJJAIAH, AGED ABOUT 58 YEARS, R/AT NO.21, KANNASANDRA VILLAGE, MAGADI TALUK, BANGALORE RURAL DIST. ...APPELLANT

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(BY SRI H.B. SOMAPUR, ADVOCATE)

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AND:

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M/S HDFC ERGO GENERAL INSURANCE CO. LTD., BY ITS REGIONAL MANAGER, NO.14, H.M. GENEVA HOUSE, 1^ST FLOOR, CUNNINGHAM ROAD, BANGALORE-560001

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SRI GEETHA K. MAJOR, W/O NAGARAJU G, R/AT NO.5, LAKSHMINARASIMHASWAMY NILAYA, 4^TH CROSS, ASWATHKATE WARD, M.SANDRA, T.D.HALLI, BANGALORE-560057. ...RESPONDENTS

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(BY SRI O. MAHESH, ADVOCATE FOR R1, NOTICE TO R2 IS DISPENSED WITH VIDE ORDER DATED 25.01.2016)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD 16.9.2013 PASSED IN MVC NO.4871/2011 ON THE FILE OF THE X ASCJ AND 35^TH ACMM, BANGALORE, (SCCH.NO.16), 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, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Heard the learned counsel for the appellant and the learned counsel for respondent No.1.

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This appeal is filed challenging the judgment and award dated 16.09.2013, passed in M.V.C.No.4871/2011, on the file of the X Additional Senior Civil Judge and 35^th ACMM, Bengaluru (‘the Tribunal’ for short).

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The factual matrix of the case is that the claimant is

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aged about 75 years, but in the claim petition he contended that he was aged about 55 years and made the claim that he met with an accident and suffered fracture of left leg and other injuries and injury No.1 is simple in nature and other injuries are grievous in nature and he was an inpatient for a period of 14 days. The doctor assessed the disability of 41.48% to the

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particular limb and 20.74% to the whole body and the Tribunal considering 1/3^rd taken the disability to the extent of 14%.

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The learned counsel for the appellant would vehemently contend that the Tribunal taking the income of Rs.5,000/- per month assessed the future loss of income and loss of income during the laid up period and hence it requires interference of this Court.

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The learned counsel for respondent No.1 submits that the claimant was aged about 75 years as on the date of the accident, hence the question of awarding any amount under the head loss of earning capacity does not arise. The Tribunal taken the multiplier of ‘5’ and awarded just and reasonable compensation and hence it does not require any interference of this Court.

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Having heard the respective learned counsel and also on perusal of the material available on record, the wound certificate which is marked as Ex.P.4 discloses that he had suffered fracture of lower end i.e., type I compound fracture of left femur middle 1/3^rd and he was an inpatient for a period of

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14 days and he was also subjected to surgery and internal fixation was done and was discharged with an advice to attend follow-up treatment. On perusal of the wound certificate he has suffered six injuries and injury No.1 is simple in nature and injury Nos.3 to 6 are grievous in nature. The doctor assessed disability of 41.48% to particular limb and 20.74% to the whole body and Tribunal rightly taken 1/3^rd and assessed the disability of 14%.

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The Tribunal awarded an amount of Rs.20,000/under the head pain and suffering. Having taken note of the nature of injuries, the same is very meagre and hence the same is enhanced to Rs.40,000/-.

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The Tribunal awarded an amount of Rs.15,000/under the head loss of income during the laid up period taking the income of Rs.5,000/- per month and laid up period as three months. It was an accident of the year 2011 and the notional income for the said year would be Rs.6,500/- per month. Hence, the claimant is entitled for an amount of Rs.19,500/- (Rs.6,500/- x 3) as against Rs.15,000/-.

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The Tribunal awarded an amount of Rs.42,000/-

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under the head future loss of income taking the income of Rs.5,000/- per month. Now taking the income of Rs.6,500/- per month as assessed by this Court and applying the relevant multiplier of ‘5’ and taking the disability of 14%, the future loss of income comes to Rs.54,600/- (Rs.6,500/- x 12 x 5 x 14%) as against Rs.42,000/-.

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The Tribunal awarded an amount of Rs.20,000/under the head loss of amenities and having considered the age of the claimant and disability of 14%, it is appropriate to enhance the same to Rs.30,000/-.

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The Tribunal awarded an amount of Rs.3,390/-

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under the head medical expenses and the same is based on documentary evidence and hence it does not require any interference.

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The Tribunal committed an error in awarding the compensation under the head disability and disfigurement. When the Tribunal has awarded compensation under the head future loss of income, the question of awarding any

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compensation under the head disability and disfigurement does not arise.

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The Tribunal awarded an amount of Rs.8,000/-

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under the head attendant charges, food and nourishment. The claimant was an inpatient for a period of 14 days and hence an amount of Rs.15,000/- is awarded as against Rs.8,000/-.

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14 In all, the claimant is entitled for compensation of

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Rs.1,62,490/- as against Rs.1,18,390/-.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The impugned judgment and award of the Tribunal dated 16.09.2013, passed in M.V.C.No.4871/2011, is modified granting compensation of Rs.1,62,490/- as against Rs.1,18,390/- with interest at 8% per annum from the date of petition till deposit.

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(iii) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.

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(iv) The Tribunal is directed to release the entire compensation amount in favour of the claimant since he is a senior citizen.

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(v) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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Sri Mariyanna @ Mariyappa v. M/S Hdfc Ergo General Insurance Co. Ltd.

Case brief

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Sri Mariyanna @ Mariyappa v. M/S Hdfc Ergo General Insurance Co. Ltd.

Case brief

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