Partly allowed

Harshith.B v. Mr.K.Durgesh

Karnataka HC8 Jun 2022MFA/3530/2020

Case brief

AI extract

What is this about?

This bench clubbed three motor accident claims appeals and modified the Tribunal's award in one by enhancing compensation from Rs.9.71 lakhs to Rs.15.93 lakhs based on recalculated disability and notional income, while dismissing the insurer's attempts to reduce the award.

What did the court decide?

Enhanced compensation awarded to claimant Harshith.B from Rs.9,71,000 to Rs.15,93,800; appeals by insurers dismissed.

Harshith.B Vs Mr.K.Durgesh — 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 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.1053 OF 2021 (MV) C/W MFA No.3530 OF 2020 (MV), MFA No.1058 OF 2021 (MV)

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IN MFA NO.1053/2021:

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BETWEEN:

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The Reliance General Insurance Company Ltd., East Wing, 5^th Floor, No.28, Centenary Building, M.G.Road, Bengaluru – 560 001. Now represented by Manager Legal. … Appellant

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(By Sri.Ashok.N.Patil, Advocate)

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AND:

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Harshith.B, S/o Basavaraju M, Aged about 20 years, No.237/1, Kumblugodu Village, Kengeri Hobli, Bengaluru – 560 060.

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Durgesh.K, S/o.K.P.Krishanappa, Navagraha Temple Road, Megalabeedhi, Kanakapura Taluk,

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Ramanagara District – 562 117. ... Respondents

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(By Sri.C.Puttaswamy, Advocate for C/R1; Notice to R2 served but unrepresented)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 09.01.2020 passed in MVC No.3169/2018 on the file of the Chief Judge, Court of Small Causes, Member Principal M.A.C.T., Bengaluru (SCCH-1), awarding compensation of Rs.9,71,000/- with interest at 6 percent p.a., from the date of petition till realization.

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IN MFA NO.3530/2020:

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BETWEEN:

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Harshith.B, S/o Basavaraju M, Aged about 20 years, No.237/1, Kumblugodu Village, Kengeri Hobli, Bengaluru – 560 060. … Appellant

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(By Sri.Puttaswamy.C., Advocate)

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AND:

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Mr.K.Durgesh, S/o.K.P.Krishanappa, Navagraha Temple Road, Megalabeedhi, Kanakapura Taluk, Ramanagara District. (Represented through his counsel)

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Reliance General Insurance Co., Ltd., Legal Office, East Wing, 5^th Floor, Centenary Building, M.G.Road, Bengaluru – 560 001.

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(Represented by its Manager)

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... Respondents

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(By Sri.Ashok.N.Patil, Advocate for R2; Notice to R1 is dispensed with)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 09.01.2020 passed in MVC No.3168/2018 on the file of the Chief Judge, Court of Small causes, Member Principal Motor Accident Claims Tribunal, Bengaluru (SCCH-1), partly allowing the claim petition for compensation and seeking enhancement of compensation.

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IN MFA NO.1058/2021:

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BETWEEN:

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Reliance General Insurance Company Limited, East Wing, 5^th Floor, No.28, Centenary Building, M.G.Road, Bengaluru – 560 001. Now represented by Manager Legal. … Appellant

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(By Sri.Ashok.N.Patil., Advocate)

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AND:

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Divya.A.V W/o Late Venkatesh @ Puneeth, Aged about 23 years,

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Master Dhanush, S/o Late Venkatesh @ Puneeth, Aged about 06 years,

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Master Yashas, S/o Late Venkatesh @ Puneeth, Aged about 05 years,

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Jayamma, W/o Late Srinivasaiah, Aged about 62 years,

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All are resident of No.260/1, Kumblugodu Village, Kengeri Hobli, Bengaluru – 560 060.

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Since the 2^nd and 3^rd Respondents are Minors, represented by their Mother/ 1^st respondent Smt.Divya.A.V.

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Durgesh.K, S/o.K.P.Krishanappa, Navagraha Temple Road, Megalabeedhi, Kanakapura Taluk, Ramanagara District – 562 117. ... Respondents

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(By Sri.C.Puttaswamy, Advocate for C/R1 to R4; Notice to R5 is served but unrepresented)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 09.01.2021 passed in MVC No.3168/2018 on the file of the Member, Chief Judge, Court of Small causes, Prl. MACT, Bengaluru (SCCH-1), awarding compensation of Rs.31,33,000/- with interest at 6 percent p.a., from the date of petition till realization.

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These MFAs, coming on for Admission, this day, this Court, delivered the following:

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J U D G M E N T

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MFA Nos.1053/2021 and 1058/2021 are filed by

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the Insurance Company being aggrieved by the

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judgment and award dated 09.01.2020 passed by MACT, Bengaluru (SCCH-1) in MVC Nos.3168/2018 and 3169/2018 whereas MFA No.3530/2021 is filed by the claimant under Section 173(1) of the Motor Vehicles Act, (for short, ‘the Act’) being aggrieved by the judgment and award dated 09.01.2020 passed by the MACT, Bengaluru (SCCH-I) in MVC No.3169/2018. Since the challenge is to the same judgment, all the appeals are clubbed together, heard and common judgment is being passed.

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Facts giving rise to the filing of the appeals briefly stated are that on 06.04.2018 at about 5.30 p.m. the deceased Venkatesh @ Puneeth was proceeding on a scooter bearing registration No. KA02/JA-3712 along with a pillion rider. When they reached Devegere road, near Britannia Biscuits Factory, Kumbalagodu, Bangalore, at that time, a maxi cab bearing registration No.KA-02/B-4460 which

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was being driven in a rash and negligent manner, dashed against the vehicle of the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries on the next day and the pillion rider fell down,

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sustained injuries and was shifted to hospital.

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The claimants filed petitions under Section

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166 of the Act seeking compensation for the death of the deceased and for the injuries sustained by the claimant along with interest.

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On service of summons, the respondent Nos.1 and 2 appeared through counsel and filed separate written statements in which the averments made in the petition were denied. The age, occupation and income of the deceased as well as the injured are denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded by the respondent No.1 - owner of the maxicab that

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the accident was due to the rash and negligent riding of the motorcycle by the deceased himself. It was further pleaded that the offending vehicle is insured with respondent No.2 and respondent No.2 is liable to indemnify him.

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It was pleaded by respondent No.2 – Insurance Company that the driver of the offending vehicle did not possess valid driving licence as on the date of the accident. The liability is subject to terms and conditions of the policy. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, they sought for dismissal of the petition.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined in all 5 witnesses as PW1 to PW5 and got exhibited documents namely Ex.P1 to

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Ex.P41. On behalf of respondents, neither any witness was examined nor got exhibited documents. The Claims Tribunal, by the impugned judgment, inter alia, held 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 deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to compensation of Rs.31,33,000/- and Rs.9,71,000/-, respectively, along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amounts along with interest. Being aggrieved, these appeals have been filed.

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The learned counsel for the Insurance Company has raised the following contentions:

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Firstly, the accident has occurred due to rash and negligent riding of the rider of the scooter, i.e., the deceased himself.

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Secondly, since the accident occurred in a

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curved road, the driver of the maxi cab was driving the vehicle very slowly, after following all traffic rules and the rider of the scooter has come at a high speed and in a rash and negligent manner dashed against the maxi cab. It is evident from the IMV report – Ex.P16 that the entire front portion of the scooter was damaged and only right side of the maxi cab has been damaged. Therefore, it is very clear that the rider of the maxi cab was riding the same in a rash and negligent manner. Even though it was a curved road, since rider of the scooter has also contributed to the accident, the Tribunal has erred in holding that the driver of the maxi cab alone is rash and negligent in causing the accident.

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Re.quantum in MVC No.3168/2018:

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The monthly income assessed by the Tribunal

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is on the higher side. Except producing the salary

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certificate he has not examined the employer or the author of the document. Considering the age and avocation of the deceased, the overall compensation

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awarded by the Tribunal is on the higher side.

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Re.quantum in MVC No.3169/2018:

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Firstly, the claimant has examined the

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orthopedic surgeon as PW-3. In his cross-examination he has categorically deposed that he has not conducted any surgery, but he was also one of the doctors in the team. He has also admitted that the patient was recovering well and his condition was stable at the time of discharge from the hospital. Therefore, the whole body disability assessed by the doctor is on the higher side.

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Secondly, PW-5 General Surgeon deposed that the claimant has suffered 25% whole body disability. He has assessed the disability as per the American Medical Association Manual. The same has not been

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produced before the court. He has not assessed the disability on the basis of Indian Medical Reports. He has not assessed the disability as per the guidelines issued by the Medical Council of India.

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Thirdly, he has admitted that the patient was gradually improving and he has been shifted out of the ICU. In his cross-examination he has categorically admitted that colostomy of the petitioner will be closed. Under these circumstances, the whole body disability assessed by PW-5 is on the higher side. Therefore, the whole body disability assessed by the Tribunal at 20% is on the higher side.

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Fourthly, even though the claimant claims that he was earning Rs.20,000/- per month but he has not produced any document to establish the same. Under these circumstances, the notional income assessed by the Tribunal is on the higher side.

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Lastly, considering the evidence of the doctor and considering the injury suffered by the claimant, the compensation awarded by the Tribunal for 'pain and sufferings', 'loss of amenities' and other incidental expenses is on the higher side. Hence, he sought for allowing the appeals filed by the Insurance Company.

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On the other hand, learned counsel for the claimants has raised the following contentions:

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Firstly, the driver of the maxi cab was driving the vehicle at a high speed and in a rash and negligent manner and dashed against the scooter. He submitted that it is not a curved road but it is a straight road and the driver of the maxi cab has come to extreme right side after crossing middle line and dashed against the scooter.

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Secondly, PW-2 is an eyewitness. He has categorically stated that the accident has occurred due to the negligence of the driver of the maxi cab. To

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dispute the version of the respondents they have not examined any witness.

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Thirdly, the quantum of compensation awarded

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by the Tribunal in MFA No.3168/2018 is just and reasonable.

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Re.quantum in MVC No.3169/2018:

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Firstly, due to the accident the claimant has

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suffered grievous injuries, he was inpatient for a period of 56 days, he has examined the doctor as PW3, who is an orthopedic surgeon. He has categorically stated that the claimant has suffered disability of right lower limb at 50.79% and 25.39% at whole body. PW5 who is the general surgeon has categorically deposed that the claimant has suffered 25% disability for which he needs regular colostomy care and further surgery for anal sphincter repair and colostomy closure. The whole body disability cannot

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be reduced. Therefore, the Tribunal is not justified in reducing the whole body disability to 20%.

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Secondly, at the time of the accident the claimant was earning Rs.12,000/- per month. But the Tribunal is not justified in considering the monthly income of the claimant as Rs.10,000/-.

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Thirdly, due to the accident the claimant has suffered grievous injuries, he was inpatient for a period of 56 days. The compensation awarded by the Tribunal for 'pain and sufferings', 'loss of amenities' and other incidental expenses is on the lower side. Hence, he sought for enhancement of compensation.

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Heard the learned counsel appearing for the

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parties. Perused the judgment and award and the original records.

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The case of the claimant is that on 06.04.2018 at about 5.30 p.m. the deceased

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Venkatesh @ Puneeth was proceeding on a scooter bearing registration No. KA-02/JA-3712 along with a pillion rider. When they reached Devegere road, near Britannia Biscuits Factory, Kumbalagodu, Bangalore, at that time, a maxi cab bearing registration No.KA02/B-4460 which was being driven in a rash and negligent manner, dashed against the vehicle of the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries on the next day and the pillion rider fell down, sustained injuries and was shifted to hospital. The claimant No.1 examined herself as PW-1 and another claimant examined himself as PW-2. PW-1 in her evidence has reiterated the averments made in the claim petition. PW-2 has stated that the accident occurred due to the rash and negligent driving of the driver of the maxi cab and he has denied the suggestion made by the respondents that the accident

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occurred in a curve road. In fact spot sketch has been produced as Ex.P15. It is very clear from the sketch that the road in which the accident has occurred is a straight road and the driver of the maxi cab came to extreme right side after crossing the middle line and dashed against the scooter. Even the FIR is also lodged against the driver of the maxi cab and charge sheet has been filed. To disprove the version of the claimants the respondents have not examined any witness much less the driver of the maxi cab. Therefore, the Tribunal is not justified in holding that the accident occurred due to the rash and negligent driving of the driver of the maxi cab.

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Re.quantum in MVC No.3168/2018:

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Considering the age and aviation of the

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deceased and considering the judgments of the Hon’ble Apex Court in the cases of NATIONAL INSURANCE CO. LTD. vs. PRANAY SETHI AND

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OTHERS reported in AIR 2017 SC 5157 and MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM reported in 2018 ACJ 2782, the compensation awarded by the Tribunal is just and reasonable.

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Re.quantum in MVC No.3169/2018:

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The claimant claims that he was earning

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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 2018, the notional income has to be taken at Rs.12,500/- p.m. Since the claim of the claimant is Rs.12,000/-, the same may be considered as notional income. As per wound certificate, the claimant has sustained fracture neck of right femur and fracture shaft of right femur. PW-3, the doctor

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has stated in his evidence that the claimant has suffered disability of 50.79% to right flower limb and 25.39% to whole body. PW-3 has taken 50% of the right lower limb disability and deposed that 1/3^rd of 50.79% would be 16.93%.

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In respect of evidence of PW-5 General Surgeon, he has categorically stated that there is diversion colostomy with anal spinster injury with loss of anal spinster control. He has assessed the whole body disability at 25%. On the basis of the American Medical Association Manual, he has taken 1/3^rd of 25%, i.e., 8%. Therefore, the whole body disability has to be considered taking into account 25% + 16.93%. Considering the evidence of the doctor and considering the wound certificate I am of the opinion that the whole body disability can be assessed as 40%.

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The claimant was aged about 19 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.10,36,800/- (Rs.12,0001218* 40%) on account of 'loss of future income'.

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In view of raise in the notional income, the compensation awarded by the Tribunal has to be enhanced from Rs.90,000/to Rs.1,08,000/(Rs.12,000*9).

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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

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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	75,000	75,000
Medical expenses	2,69,000	2,69,000
Food, nourishment,	30,000	30,000

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conveyance and attendant charges
Loss of income during	90,000	1,08,000
laid up period
Loss of amenities	50,000	50,000
Loss of future income	4,32,000	10,36,800
Future medical expenses	25,000	25,000
Total	9,71,000	15,93,800

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The claimant is entitled to a total compensation of Rs.15,93,800/- as against Rs.9,71,000/- awarded by the Tribunal.

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In the result, MFA No.3530/2020 filed by the claimant is allowed in part. MFA Nos.1053/2021 and 1058/2021 filed by the Insurance Company are dismissed. The judgment of the Claims Tribunal is modified.

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

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transferred to the Tribunal forthwith.

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JUDGE

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Cm/-

Harshith.B v. Mr.K.Durgesh

Case brief

What is this about?

What did the court decide?

Harshith.B v. Mr.K.Durgesh

Case brief

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