The High Court allowed the appeal partly, modifying the Motor Accident Claims Tribunal's award by enhancing compensation to Rs.5,57,100/- based on assessed disability of 20% and notional income.
Compensation enhanced to Rs.5,57,100/- with interest at 6% per annum from petition date except on future medical expenses.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2022
BEFORE
THE HON’BLE MR.JUSTICE M.G.S. KAMAL
MFA NO. 4852 OF 2019(MV)
BETWEEN :
SRI. GAVIYAPPA H.K., S/O KALINGAIAH AGED ABOUT 45 YEARS R/AT HOSUR VILLAGE & POST BIDADI HOBLI RAMANAGARA DISTRICT - 562 109.
...APPELLANT
(BY SRI. GIRIMALLAIAH, ADVOCATE)
AND:
2
BIDADI HOBLI
RAMANAGARA DISTRICT - 562 109.
….RESPONDENTS
(BY SRI. O. MAHESH, ADVOCATE FOR R1(V/C) NOTICE TO R2 IS D/W)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 04.02.2019 PASSED IN MVC NO.7583/2017, ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT, BENGALURU (SCCH-15), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal in MFA.4852/2019 is filed by the appellant/claimant under Section 173(1) of the Motor Vehicles Act, 1988 (for short 'M.V. Act') against the judgment and award dated 04.02.2019 passed in MVC No.7583/2017 on the file of the Motor Accident Claims Tribunal, Bengaluru (SCCH-15) (for short 'Tribunal').
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Activa Honda motorcycle bearing Reg.No.KA-02/HW-8576. When he reached near Chikkiraiah Estate, Bidadi Hobli, Byramangala-Hosur road, Ramanagara district, another motorcycle bearing Reg.No.KA-42/W-4080 (hereinafter referred to as 'the offending vehicle') ridden by its rider in a rash and negligent manner from opposite direction dashed against the motorcycle of the claimant. Due to the impact, the claimant was thrown on the road and sustained grievous injuries. Claimant was taken to Sanjay Gandhi Hospital, Bengaluru for treatment. A case in Crime No.487/2017 was registered.
20,00,000/- on the ground that he was aged about 43 years, was doing agricultural and contract work and was earning a sum of 30,000/- per month and that the accident was caused due to rash and negligent riding of the offending vehicle by its rider, resulting in grievous injuries to him and due to the same, he is not able to carry4
out his regular work as he was doing earlier, thereby reducing his earning ability. That the accident was caused on account of negligent riding of the motorcycle by respondent No.2 and said motorcycle was insured with respondent No.1. As such, respondent Nos.1 and 2 were liable to pay the compensation to the claimant.
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claimant examined himself as PW.1 and one doctor namely, Prakashappa T.H. has been examined as PW.2. Eleven documents were exhibited as Exs.P1 to P11. On behalf of respondent No.1-insurance company, one Sri Nagendra R has been examined as RW.1 and copy of policy has been exhibited as Ex.R1.
| Pain and suffering | `40,000/- |
|---|---|
| Loss of laid up period | `16,000/- |
| (8,000x2=16,000) | |
| Medical expenses | `9,500/- |
| Future medical expenditure |
`10,000/- |
| Loss of future income | `1,88,500/- |
| Diet & conveyance | `10,000/- |
| Loss of emenities | `30,000/- |
| Total | `3,04,000/- |
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perused the records.
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14 %. He further submits that the compensation awarded by the Tribunal under other heads are on lower side. Referring to requirement of future medical expenses, learned counsel submits that the Doctor-PW.2 in his evidence has specifically stated that the appellant/claimant need one more surgery for removal of implant, the cost of which would be around Rs.18,000/- to Rs.20,000/-, but the Tribunal erred in awarding only a sum of Rs.10,000/which is on lower side. Hence, sought for enhancement of compensation by allowing the appeal.
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Authority, there should be some material on record regarding avocation of the appellant/claimant and only then the national income as per the chart could be taken into consideration. In the instant case, he submits, that since the claimant has not produced any material evidence, even recourse of the chart cannot be made. Further referring to the disability and the requirement of future medical expenses, learned counsel for the insurance company submits that the assessment of the disability at 20% made by the Doctor-PW.2 cannot be countenanced as no certificate in this regard has been furnished. Therefore, the disability assessed by the Tribunal at 14% is just and proper. He also contended that the accident is of the year 2017, we are in the year 2022 if at all the surgery was required, the same could have been done by now, since there is no material supporting requiring the surgery, the claimant is not entitled any future medical expenses. That the appellant/ claimant has not made out any ground for enhancement of the compensation. Hence, sought for dismissal of the appeal.
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11. On thoughtful consideration of the submissions
made by the learned counsel for the parties, the only point that arises for consideration is:
"Whether the appellant/claimant has made out a case for enhancement of the compensation?"
"i) Swelling, tenderness, crepitus, deformity-X-Ray shows, Compound fracture both bones of (L) leg".
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the documents such as X-rays, clinical and radiological examination carried out by him. Based on the said material and examination, he has assessed the disability, as per the guidelines issued by Ministry of Social Justice and Empowerment, Government of India. Paragraphs 2, 3, 4 and 5 of his affidavit provide details of the injuries and the extent of disability in the nature of movement of distal end and foot has been taken into consideration. On the basis of these details PW.2 has assessed the disability of the appellant/claimant at 20%. He has also deposed hat the appellant/claimant has to undergo one more surgery for removal of implant, involving cost of Rs.18,000/- to Rs.20,000/- in his hospital. In the cross examination, except the answer that as per the X-ray fracture is reunited, nothing has been elicited discrediting the assessment of disability made by the said witness. In that light of the matter, the Tribunal ought to have relied upon the assessment of the disability at 20% instead of reassessing it at 14%. Thus, the assessment made by the Tribunal at 14% requires to be modified and enhanced at
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20% as made by the Doctor-PW.2, who is an repeat in the filed.
appellant/claimant, though it is claimed that he was earning Rs.30,000/- per month from his agriculture and contract activities, no material evidence in this regard has been produced. This Court in the absence of any material evidence with regard to the income of the victims of a Road Traffic Accident, invariably takes into consideration the chart prepared by the Karnataka State Legal Services Authority. As per the chart, the notional income of the victim, of the road traffic accident for the year 2017 has been notionally fixed at 11,000/- and the same is taken into consideration in the present case instead 8,000/- per month as taken by the Tribunal. Thus, considering the age of the claimant being 43 years at the time of accident, applicable multiplier is '14'. Thus the loss of future income of the appellant/claimant would be `3,69,600/(11,000x12x14x20%).
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40,000/- under the head of pain and suffering. Considering the nature of injuries being compound fracture of both bones of left leg, an additional sum of 20,000/- is awarded enhancing the compensation to Rs.60,000/- instead `40,000/- awarded by the Tribunal.13
future medical expenses. Considering the evidence of the Doctor who has stated the requirement of surgery involving removal of implant and the approximate cost being Rs.18,000/- to Rs.20,000/-, a sum of Rs.15,000/- is awarded under the said head instead of Rs.10,000/-. The Tribunal has awarded Rs.10,000/- towards diet and conveyance, the said amount is enhanced to Rs.20,000/by adding Rs.10,000/-. Under the head of loss of amenities Rs.30,000/- has been awarded by the Tribunal, the said amount is enhanced to Rs.50,000/- by adding Rs.20,000/- under the said head.
compensation of Rs.5,57,100/- as follows:
| Heads | By Tribunal | By this Court |
|---|---|---|
| Pain and suffering |
`40,000/- | `60,000/- |
| Loss of laid up period |
`16,000/- | `33,000/- |
| Medical expenses |
`9,500/- | `9,500/- |
| Future medical | `10,000/- | `15,000/- |
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| expenses | ||
|---|---|---|
| Loss of future income |
`1,88,500/- | `3,69,600/- |
| Towards diet and conveyance |
`10,000/- | `20,000/- |
| Loss of amenities |
`30,000/- | `50,000/- |
| Total | `3,04,000/- | `5,57,100/- |
ORDER
a. The MFA.No.4852/2019 filed by the appellant/claimant is allowed-in-part and the judgment and order of the Tribunal in MVC No.7583/2017 is modified.
b. The appellant/claimant is held entitled for enhanced compensation of
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5,57,100/- instead 3,04,000/- awarded by the Tribunal together with interest at 6% per annum from the date of petition till its realization. However, the appellant/claimant shall not be entitled any interest on the award of compensation under the head of future medical expenses.
c. The respondent No.1 - insurance company is directed to pay the compensation within eight weeks from the date of receipt of a certified copy of this judgment.
Sd/JUDGE
mkm
2 issues framed by the court
Whether the appellant has made out a case for enhancement of compensation awarded by the tribunal?
Whether the tribunal erred in assessing disability at 14% instead of 20% and income at Rs.8,000 instead of notional Rs.11,000?
1 provisions across 1 enactments
Sri. Gaviyappa H.K.
Tata AIG General Insurance Company Ltd.
Mr. Shivakumar H.T
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court