Partly allowed

Dr Banakar a B @ Banakar v. Iffco Tokio General Ins.Co.Ltd

Karnataka HC8 Aug 2022MFA/1987/2019

Case brief

AI extract

What is this about?

In this motor accident compensation appeal, the High Court enhanced the awarded compensation from Rs.14.68 lakh to Rs.17.68 lakh. The Court upheld liability but reduced loss of earning claims, increasing pain, suffering, and amenity damages based on 45% permanent disability.

What did the court decide?

Appeal allowed in part; compensation enhanced to Rs.17,68,318/-; Respondent No.2 to deposit enhanced amount of Rs.3,00,000/- with interest.

Dr Banakar a B @ Banakar Vs Iffco Tokio General… — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 08^th DAY OF AUGUST, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE Mrs. JUSTICE K.S. HEMALEKHA

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MISCELLANEOUS FIRST APPEAL No.1987/2019 (MV-I)

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BETWEEN:

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DR. BANAKAR A.B. @ BANAKAR AGED ABOUT 54 YEARS, R/O. PRASHANATHA NAGARA, CHITRADURGA CITY – 577 501. ... APPELLANT

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(BY SRI SPOORTHY HEGDE NAGARAJA, ADVOCATE)

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AND:

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IIFCO TOKIO GENERAL INS. CO. LTD., REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE,NO.7/432, PCR & RD BUILDING, LAWYERS ROAD, KUVEMPU NAGAR, DAVANAGERE – 577 001.

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SRI V.S. PRASANNA S/O. V. SEETHRAMA REDDY, AGED ABPIT 50 YEARS, OWNER OF BAJAJ PULSAR 150, MOTOR CYCLE BEARING REG. NO.KA-16-L-4884, R/O SRI GURUKRUPA, 2^ND CROSS, 3^RD MAIN, MUNICIPAL COLONY, CHITRADURGA – 577 501.

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... RESPONDENTS

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(BY SRI B.C. SHIVANNEGOWDA, ADVOCATE FOR R-1; V/O. DATED 19.11.2021 NOTICE TO R-2 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.12.2018 PASSED IN MVC NO.1128/2017 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & CJM, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL HEARING THIS DAY, K.S.HEMALEKHA J. , DELIVERED THE FOLLOWING:

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J U D G M E N T

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The injured/claimant has preferred the present miscellaneous first appeal assailing the judgment and award dated 31/12/2018, passed in MVC.No.1128/2017, by the Prl. Senior Civil Judge & CJM, Chitradurga (hereinafter referred to as “the Tribunal” for short), whereby the Tribunal has awarded compensation of Rs.14,68,300/- with interest at the rate of 9% per annum from the date of petition till the date of realisation.

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The injured/claimant, filed the claim

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petition under Section 166 of the Motor Vehicles Act, 1988 (“the Act” for short), seeking compensation of

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Rs.20,00,000/- with interest at 18% p.a., on account of injuries sustained by him in a road traffic accident that occurred on 10/08/2016 when the

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injured/claimant was proceeding on his Honda Activa bearing registration No.KA-16/U-2789 from his house towards Government Science College, Chitradurga, on the extreme left side of the road, at that time the rider of Bajaj Pulser motorcycle bearing registration No.KA-16/L-4884 came in a rash and negligent manner and dashed against the hind portion of the claimant’s motorcycle, due to which the claimant sustained grievous injuries and is suffering from permanent disability and has lost his earning. It is further contended by that the claimant was aged about 52 years and was hale and healthy at the time of accident and was working as Associate Professor in Botany at Government Science College, Chitradurga. It is specifically stated that the accident occurred due

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to the rash and negligent riding of the Bajaj Pulsar and sought to allow the claim petition.

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Pursuant to the notice issued by the

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Tribunal, respondent Nos.1 and 2 appeared through their respective counsel and filed their statement of objections separately.

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Respondent No.1/owner of the offending vehicle contended that the risk of the claimant is covered by the policy and the entire compensation needs to be fastened upon the insurance company alone and sought for dismissal of the claim petition.

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Respondent No.2/insurance company

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contended that the policy was in force as on the date of accident and the policy conditions have been violated by respondent No.1/owner of Bajaj Pulsar. It is contended that the accident occurred due to the rash and negligent riding of the claimant himself as he

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was proceeding in the wrong side in a high speed and there is no negligence on the part of the rider of the rider of the offending vehicle and thus sought to absolve the liability and dismiss the claim petition.

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On the basis of the pleadings of the parties,

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the Tribunal framed following issues:

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ISSUES

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(i) Whether the petitioner proves that, he had sustained injuries in a road traffic accident occurred on 10/08/2016 at about 9.10 p.m. in front of Government Science College, Chitradurga, due to rash and negligent rider of the motorcycle bearing Reg. No.KA-16/L-4884 by its rider?

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(ii) Whether the petitioner is entitled for compensation? If so, at what quantum and from whom?

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7. In order to substantiate his contention, the

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claimant examined himself as PW.1 and the doctor

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was examined as PW.2 and got marked documents at

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Exs.P-1 to P-80. On the other hand, respondent

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No.2/insurance company did not let-in any evidence. However, got marked Ex.R-1 insurance policy issued by respondent No.2/insurance company.

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The Tribunal, on the basis of the pleadings,

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oral and documentary evidence as well as the material on record, held that the accident occurred due to rash and negligent riding of the rider of the motorcycle bearing registration No.KA-16/L-4884 and fastened the liability upon respondent No.2/insurance company awarding compensation of Rs.14,68,300/with interest at 9% per annum from the date of petition till the date of realization.

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Being unsatisfied with the quantum of compensation awarded by the Tribunal, the

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injured/claimant has preferred the present appeal seeking enhancement of compensation. The insurance

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company has not preferred any appeal against the

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judgment and award of the Tribunal.

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Heard learned counsel for the parties to the

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lis .

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Sri Spoorthy Hegde Nagaaraja, learned

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counsel for the injured/claimant would contend that the award of compensation of Rs.14,68,300/-by the Tribunal is without considering the fact that the injured/claimant was earning Rs.1,38,576/- per month as he was an Associate Professor in Botany in Government Science College at Chitradurga and due to the injuries suffered, there is a permanent disability and thus the claimant is unable to attend the work as he was doing before the accident and due to which the income of the injured/claimant has been reduced substantially. It is further contended that the Tribunal has awarded very meager compensation under the

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head pain and suffering, conveyance, food, nourishment and attendant charges and also under the head loss of amenities and happiness. It is further contended that the Tribunal has not taken the injuries suffered by the claimant as well as the permanent disability to the extent of 45% to the lower limb, by which the award of compensation by the Tribunal needs to be enhanced. It is further contended that the relevant documents at Ex.P-26 Medical Board Certificate, Ex.P-27 disability certificate and Ex.P-79 endorsement issued by BDO Challakere, the leave take by the wife to attend the injured by which there is loss of income to the wife also is not considered by the Tribunal in proper perspective and the same needs to be enhanced and sought to allow the appeal.

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Per contra, Sri B.C.Shivanne Gowda,

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learned counsel appearing for respondent No.1 would contend that the compensation awarded by the

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Tribunal is just and proper and does not call for any interference at the hands of this Court. On the other hand, it is contended that the compensation awarded is exorbitant for the injuries suffered by the claimant. It is further stated that the claimant is not entitled for loss of future income as contended by the learned counsel for the claimant as there is no loss suffered by the claimant rather he is in a better position than he was at the time of accident and thus contended that the claimant is not entitled for any compensation under the head loss of future income. It is further contended that the award of compensation under various heads is just and proper and no compensation as sought for by the claimant needs to be enhanced and thus sought for dismissal of the appeal.

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Having heard learned counsel for the parties and on perusal of the material on record, the only point that arises for our consideration is:

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“Whether the injured/claimant has made out a case for enhancement of compensation in the facts and circumstances of the case?”

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We have given our thoughtful consideration

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to the arguments addressed by the learned counsel for the parties and perused the material available on record. The date, time and occurrence of accident on 10/08/2016are not in dispute. It is also not in dispute that the accident occurred due to the rash and negligent riding of the motorcycle bearing registration No.KA-16/L-4884 as is evident from Exs.P-1 FIR and P-7 charge sheet leveled against the rider of the offending vehicle which are the public documents prepared in the official capacity and the same is not challenged by the insurance company. This being so, the accident occurred due to the negligence on the part of the rider of the offending vehicle is not

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disputed. The only dispute is with regard to the quantum of compensation awarded by the Tribunal.

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It is contended by the learned counsel for

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the appellant that the claimant has sustained grievous injuries and the same is evident from Ex.P-8 the referral card, which depicts that the injuries suffered by the claimant are crushed injuries over the right leg with expose of muscles, tendon and fracture bone of tibia with loss of bone and other bodily injuries. Exs.P9 to P-13 are discharge summaries of HOSMAT Hospital which reveal that the claimant had taken treatment therein for about ten days and underwent surgery and treated for six days and he took further treatment for about 29 days totally and also underwent bone grafting. Ex.P-14 progress card of HOSMAT Hospital, which reveals that the claimant took treatment from 10/09/2016 till 16/05/2018, Ex.P-26 medical board certificate shows that the

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claimant was continued to take treatment for nonunion of right tibia with bone grafting and external fixation. The claimant is not able to walk without support and difficulty in travelling and standing for long time and Ex.P-27 disability certificate reveals that claimant sustained 45% permanent physical imperilment. This being so, the Tribunal is not justified in awarding compensation under the head pain and suffering to the extent of Rs.60,000/- only. It is also relevant to state that though the learned counsel for the appellant/claimant contended that there was loss of future income is not acceptable for the reason that the injured/claimant is working as an Associate Professor in Botany at Government Science College, Chitradurga, and is earning around Rs.1,38,576/per month as stated by the

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injured/claimant in the claim petition. It is also not the case of the claimant that due to the accident, the

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claimant has lost his job or the income has been reduced. On the other hand, having not produced any document to the effect that there is any reduction in the salary or having lost job, we are of the considered view that the claimant has not suffered any loss of earning due to the accident. Thus, the contention of the learned counsel that there is loss of future earning is not acceptable. The another contention of learned counsel for the claimant is that there is loss of pay to wife as she had taken leave to take care of the husband, however the no material are forth coming to this effect. Thus, we are of considered view that loss of pay to wife during the said period cannot be considered.

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However, the award of compensation by the Tribunal under the head pain and suffering, loss of amenities and happiness and conveyance, food, nourishment and attendant charges are on the lower

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side needs to be enhanced. Looking into the documents as per Exs.P-26, P-27 and P-9 which clearly establish the fact that the injuries suffered by the claimant are grievous in nature and there has been permanent disability to the extent of 45%. Accordingly, the point framed for consideration is answered partly in the affirmative holding that the claimant has made out a case for enhancement of compensation. In the peculiar facts and circumstances of the case, the claimant is entitled for just and fair compensation as under:

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Sl. No.	Head of Compensation	Amount/Rs.
1	Painand suffering	1,50,000.00
2	Medical expenses (as awarded by the Tribunal against the bills)	9,17,437.00
3	Conveyance, food nourishment and attendant charges	1,50,000.00
4	Loss of earned leave (as awarded by the Tribunal)	3,90,881.00
5	Loss of amenities and unhappiness	1,60,000.00
	TOTAL	17,68,318.00

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Thus, the injured/claimant is entitled for compensation of Rs.17,68,318/- as against Rs.14,68,318/- awarded by the Tribunal. Deducting Rs.14,68,318/- from Rs.17,68,318/-, the claimant is entitled for enhanced compensation of Rs.3,00,000/-

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with interest at the rate of 6% per annum from the date of claim petition till the date of realization. In the result, we pass the 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 is hereby modified. The injured/claimant is entitled for compensation of Rs.17,68,318/- as against Rs.14,68,318/- awarded by the Tribunal. The injured/claimant is entitled for enhanced compensation of Rs.3,00,000/- with interest at

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the rate of 6% per annum from the date of claim petition till the date of realization.

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(iii) Respondent No.2/insurance company is directed to deposit the enhanced compensation amount of Rs.3,00,000/- within a period of six weeks from the date of receipt of a copy of this order with proportionate interest. On such deposit, the injured/claimant is entitled to withdraw the amount.

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No order as to costs.

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Sd/JUDGE

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Sd/JUDGE

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Dr Banakar a B @ Banakar v. Iffco Tokio General Ins.Co.Ltd

Case brief

What is this about?

What did the court decide?

Dr Banakar a B @ Banakar v. Iffco Tokio General Ins.Co.Ltd

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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