Partly allowed

Srinivasan. M v. M/S. Tata Aig Insurance Co. Ltd.

Karnataka HC23 Nov 2022MFA/4791/2019

Case brief

AI extract

What is this about?

In an appeal against a Motor Accident Claims Tribunal award, the High Court enhanced the compensation awarded to an appellant injured in a vehicular collision. While rejecting claims for future loss of income, the Court increased awards for pain, suffering, and loss of amenities, directing the insurer to deposit the enhanced amount with interest.

What did the court decide?

Compensation enhanced by Rs. 1,45,000 with 6% interest, and the impugned judgment and award dated 18.03.2019 were modified.

Srinivasan. M Vs M/S. Tata Aig Insurance Co. Ltd. — Medical Negligence | Karnataka HC (2022)

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MFA No. 4791 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF NOVEMBER, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 4791 OF 2019 (MV-I)

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BETWEEN:

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SRINIVASAN M S/O MANICKAM, AGED ABOUT 42 YEARS R/AT # 3/571, LAKSHMI NARASIMMANAGAR, DINNUR, HOSUR KRISHNAGIRI- 635 109.

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Digitally

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signed by T S NAGARATHNA Location: High Court of Karnataka

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(BY SRI. SRIDHAR D S.,ADVOCATE)

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AND:

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…APPELLANT

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M/S. TATA AIG INSURANCE CO.LTD., R/BY ITS MANAGER, 5TH FLOOR WEST ENTRANCE KHANIJA BHAVAN RACE COURCE ROAD BENGALURU - 560 001.

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ANANDAN A S/O ANDIYAPPA, MAJOR R/O MAAYISANDRA VILLAGE, ATTIBELE HOBLI,

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MFA No. 4791 of 2019

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ANEKAL TALUK BENGALURU URBAN - 560 100.

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…RESPONDENTS

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(BY SRI B. PRADEEP, ADVOCATE FOR R-1; NOTICE TO R2 IS DISPENSED WITH V/O DATED 27-5-2022)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.03.2019 PASSED IN MVC NO. 2476/2017 ON THE FILE OF XXII ADDL. SMALL CAUSES JUDGE & XX A.C.M.M. & MEMBER , M.A.C.T. , BENGALURU, SCCH 24 PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY C.M.JOSHI J., DELIVERED THE FOLLOWING:

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JUDGMENT

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By consent of the learned counsel for both the parties, the matter is taken up for final disposal though it is listed for admission.

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Aggrieved by the judgment and award dated 18 . 03.2019 passed in MVC No.2476/2017 by the learned XXII Additional Small Causes Judge and XX ACMM and Member, MACT, Bengaluru, SCCH24, partly allowing the petition awarding compensation of Rs.2,53,480/-, petitioner/appellant has approached this Court in appeal by urging various grounds.

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MFA No. 4791 of 2019

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The parties are referred to as per their ranks before the

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Tribunal for the sake of convenience.

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The brief facts are as below:

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That on 11.10.2016 at about 9.15 p.m. the petitioner was traveling in a Tempo Traveller bearing Reg.No.KA-03-AA-3962, from Hosur towards Bengaluru City, on NH-7 Road, when he reached near BIOCON Company, Hebbagodi, a TATA-407 Lorry bearing Reg. No.KA-03-D-6291, came towards Hosur Road, driven by its driver with high speed, in rash and negligent manner, lost control over the vehicle and went on the centre divider and dashed to Tempo Traveller, which was coming on the opposite road from the wrong side. Due to impact, petitioner sustained grievous injuries all over the body and the inmates of Tempo Traveller were also injured. Immediately, petitioner was shifted to Sparsh Hospital, Bengaluru, wherein he took treatment as an inpatient from 11-10-2016 to 21-10-2016 and further he was admitted to the said hospital on 27.10.2016, during the course of treatment he undergone several clinical and radiological examinations and was undergone surgeries and after necessary treatment he was discharged with an advice to regular follow-up treatment. He spent

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MFA No. 4791 of 2019

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substantial amount towards his treatment and other incidental expenses. Inspite of best and available treatment he is still under treatment and due to accidental injuries he lost his right eye sight and due to the fractures of humerus of both right and left hand, facial injuries and head injuries have caused him permanent disablement.

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It is the further case of the petitioner that, prior to the accident, he was hale and healthy, aged about 40 years, working as Technician at MOOG Controls (India) Pvt.Ltd., and was earning Rs.32,000/- p.m. Due to accidental injuries, he is unable to do his earlier work and has suffered financial problems & also lost his earning capacity. The disability sustained has affected his future career, thereby his life has become dark. Therefore, he sought for compensation of Rs.60,00,000/- from the respondent No.1 & 2 who are the RC owner & insurer of the offending vehicle.

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On issuance of notice by the Tribunal, 1st respondentInsurance Company appeared through its counsel and filed objections and 2nd respondent remained absent and he has been placed exparte.

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MFA No. 4791 of 2019

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1st respondent -Insurance Company denied all the

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averments made in the petition and specifically denied the age avocation and income of the petitioner. However, admitted the issuance of Insurance policy in respect of the Tempo bearing Reg No.KA-03-D-6291.But contended that, the driver of the offending Tempo Traveller did not possess valid and effective DL to drive the class of vehicle and the said vehicle also not possessed valid Permit and FC, on the date of accident. The compensation claimed by the petitioner is highly excessive and exorbitant. For all these reasons sought to dismiss the petition.

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On the basis of the above pleadings, the Tribunal has framed necessary issues for its consideration and after hearing the learned counsel for both the parties and considering the oral evidence of PWs 1 to 3 and documentary evidence of Exs.P1 to P25 on behalf of the petitioner, allowed the petition in part and awarded the compensation of Rs.2,53,500/- under different heads as below:

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MFA No. 4791 of 2019

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Pain and sufferings	Rs. 80,000/-
Food and Nourishment conveyance and attendant charges	Rs. 40,000/-
Medical Expenses	Rs. 33,480/-
Loss ofamenities of life and disability	Rs.1,00,000/-
Total	Rs.2,53,480/-
Rounded offtoRs.2,53,500/-

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Aggrieved by the said judgment and award, the petitioner

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is before this Court seeking enhancement.

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Respondent No.1- insurance company has appeared in pursuant to the notice issued by this Court and notice to respondent No.2 is dispensed with.

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We have heard learned counsel Sri. Sridhar D.S., appearing for the appellant and the learned counsel Sri. B. Pradeep, appearing for the Insurance Company.

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The fact that there was an accident involving the tempo traveller and 407 lorry bearing No.KA.03.D.6291 is not in dispute and that the chargesheet was laid against the driver of 407 lorry is also not in dispute. Obviously, the said 407 lorry crossed the divider due to negligent driving and crashing on to the other side of the divider hitting tempo traveller and as a result the petitioner who was the passenger of tempo traveller sustained the injury.

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MFA No. 4791 of 2019

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Therefore, it is only the quantum which needs to be considered by the Court.

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The petitioner/appellant had sustained globe avulsion injury to the right eye, communited fracture maxilla with mid palate split, soft tissue injury of face involving the left upper lid, fore head and upper and lower lip. He also suffered bilateral humerus mid shaft communited fracture, for which he under went surgery with ORIF and maxilla repair with treatment for soft tissue injuries. The medical records produced at Exs.P6 and P8 discloses the same. It is also pertinent to note that when both humurus of both upper limbs had sustained fractures, there is bound to be inconvenience and disability. However, the records reveal that the entire hospitalization bills on three occasions were borne by his employer and Bajaj Allianz General Insurance Company Limited. On these grounds, the Tribunal has added the health insurance premium also to the medical expenses and arrived at compensation of Rs.33,480/-. Therefore, we are unable to appreciate that enhancement is need in this regard. The Tribunal has also rejected the taxi bills amounting to a sum of Rs.18,637/- on the ground that the total kilometers are not mentioned. However, the same is

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MFA No. 4791 of 2019

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included in the global compensation of Rs.40,000/- awarded towards food nourishment and conveyance expenses.

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Sofar as the compensation under the head of pain and suffering is concerned, the Tribunal has awarded a sum of Rs.80,000/-. Considering the avulsion injury to the right eye and fracture of humurus of both the upper limbs, we are of the considered view that a sum of Rs.1,00,000/- should have been awarded by the Tribunal instead of Rs.80,000/-. Hence, an enhancement of Rs.20,000/- is to be allowed.

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Coming to the question regarding future loss of income, the records reveal that the petitioner was working as a Technician at MOOG Controls (India) Private Limited and was earning Rs.32,000/- per month. Though it is contended that he had lost earning capacity, the documents produced at Exs.P10 to P12 and Ex.P18 disclose that he has not been removed from the service. No document is forthcoming to show that there was reduction in his income and the Tribunal presumed that the employer had paid the salaries during his treatment period also. In order to establish disability, the PW2 who is an Orthopedic Surgeon who had not treated the petitioner was examined and he stated that there is a

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MFA No. 4791 of 2019

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disability of 45% and 49% to the upper limbs respectively and visual disability of 30%. In view of the fact that, there is no loss of income, the Tribunal has not awarded any compensation under the head of loss of earning capacity. In addition to that, the petitioner had examined PW3 who stated that petitioner had sustained right eye traumatic avulsion of globe and there is no possibility salvaging the right eye and the petitioner had undergone right eye enucleation at Sparsh Hospital. Considering these aspects, we find that there is insufficient evidence to establish that the petitioner had any reduction in the earning capacity and he has continued his service with MOOG Controls (India) Private Limited. Therefore, it is not possible to assess the compensation under the head of future loss of income. However, the loss of amenities of life are clearly impaired and the petitioner has lost an eye. Hence, we propose to award a sum of Rs.2,25,000/- under the head of loss of amenities in life.

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Under these circumstances, the compensation is reworked out as below:

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10 -

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MFA No. 4791 of 2019

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Pain and sufferings	Rs.1,00,000/-
Food and Nourishment conveyance and attendant charges	Rs. 40,000/-
Medical Expenses	Rs. 33,480/-
Loss of amenities of life and disability	Rs.2,25,000/-
Total	Rs.3,98,480/-
Less: Awarded by Tribunal	Rs.2,53,480/-
Enhancement	Rs.1,45,000

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Thus, we propose to award the compensation by a sum of Rs.1,45,000/- in addition to what has been awarded by the Tribunal. Hence, we pass the following:

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ORDER

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(i) Appeal is allowed in part

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(ii) The impugned judgment and award dated

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18.03.2019 passed in MVC No.2476/2017 by the Tribunal is modified by enhancing the compensation of Rs.1,45,000/- together with interest at 6% p.a. from the date of petition till realization.

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(iii) Insurance company is directed to deposit the compensation amount together with interest within a

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MFA No. 4791 of 2019

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period of 4 weeks from the date of receipt of the copy of

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this order.

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(iv) The conditions of apportionment and deposit as

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ordered by the Tribunal remain unaltered.

Sd/JUDGE

Sd/JUDGE

tsn*

List No.: 2 Sl No.: 17

Srinivasan. M v. M/S. Tata Aig Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Srinivasan. M v. M/S. Tata Aig Insurance 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

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