Partly allowed

M Gopal v. Shekara

Karnataka HC2 Jun 2022MFA/5625/2012

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part, enhancing the accident compensation award to Rs.3,98,000/- considering functional disability and incidental expenses. It directed the insurance company to pay first under the pay and recovery principle before recovering from the vehicle owner.

What did the court decide?

Appellant awarded total compensation of Rs.3,98,000/- with 6% interest; insurance company directed to pay first and recover from owner.

M Gopal Vs Shekara — 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 02^ND DAY OF JUNE, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A.NO.5625/2012 (MV)

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BETWEEN:

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M. GOPAL, S/O M.MAHADEVA, AGED ABOUT 27 YEARS, R/AT. NO.435, EWS, 2^ND STAGE, CITB, HUDCO, KUVEMPUNAGAR, MYSORE.

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… APPELLANT

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(BY SMT. B.N. MANJULA, ADVOCATE FOR SRI. R.C. NAGARAJ, ADVOCATE)

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AND:

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SHEKARA, AGED ABOUT 29 YEARS, R/O THENKALAMOLE VILLAGE, SANTHEMARAHALLY HOBLI, CHAMARAJANAGARA TQ. & DIST., (DRIVER OF APE GOODS AUTO BEARING REG.NO.KA-10-2824)

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MAHADEVA SHETTY, S/O GOVINDA SHETTY, AGED ABOUT 46 YEARS, R/AT KUDERU VILLAGE, SNATHEMARAHALLY HOBLI, CHAMARAJANAGAR TQ. & DIST. OWNER OF THE VEHICLE)

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BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., NANJAMMA’S COMPLEX, METTUPALYAM ROAD, THUDIYALUR, COIMBATORE – 641 034. TAMILUNADU STATE. (POLICY NO.OG-09-1004-1803-00000204)

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THE MANAGER, NATIONAL INSURANCE CO. LTD., DIVISION OFFICER-7,(350700) SO JANPATH, NEW DELHI-110001. REPRESENTED BY ITS MANGAER, NATIONAL INSURANCE CO. LTD., 100 FEET ROAD, RAMASWAMY CIRCLE, MYSORE. (POLICY NO.007117144 VALID FROM 24.09.08 TO 23.09.09.

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... RESPONDENTS

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(BY SMT. H.R. RENUKA, ADVOCATE FOR R3, R1 & R2 SERVED, SRI SHIVARAJ PATIL, ADVOCATE FOR R4)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:24.11.2011 PASSED IN MVC NO.870/2011 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-II AND MEMBER ADDITIONAL MACT, MYSORE, 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 FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed under Section-173(1) of the Motor Vehicles Act, 1988, (hereinafter referred to as ‘MV Act’ for brevity) by the appellant-claimant challenging the

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judgment and award dated 24.11.2011, passed in MVC No.870/2011, on the file of the Fast Track Court-II and Additional Accident Claims Tribunal, Mysuru, (hereinafter referred to as ‘the Tribunal’ or brevity) seeking enhancement.

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Brief facts:

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On 04.01.2009, at about 11.45 a.m., the appellant was traveling along with his father on Hero Honda Motor Cycle bearing registration No.R-7603, 84482, BJD 500609 from Kasturu Village towards Mysuru. They were proceeding on left side of the road in a moderate speed. At that time, driver of Ape Goods auto coming from opposite side towards in a rash and negligent manner with high speed dashed against their bike. Due to the impact, appellant’s father and the appellant fell down on the road and both of them sustained severe injuries. As a result the appellant’s father succumbed to injuries. The appellant has sustained fracture to his right leg and multiple injuries on

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color bone and other parts of the body and he took treatment for 45 days as inpatient. The injured Gopala was

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aged 26 years at the time of accident and he was doing business in General Stores and earning Rs.15,000/- per month.

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Hence, a claim petition was filed by the appellant under Section-166 of the M.V. Act, claiming compensation for the injuries sustained in the accident. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.1,95,000/-, along with interest at 6% per annum from the date of petition till the date of deposit. The Tribunal held respondent Nos.1 and 2 therein, jointly and severally liable to pay the compensation.

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The learned counsel for the appellant – claimant submitted that the Tribunal has awarded compensation under each head is not sufficient. Further, submitted that the appellant had sustained permanent physical disability at 27% towards whole-body disability as per the Doctor’s evidence PW-3. But the Tribunal has not awarded compensation towards ‘loss of future capacity due

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to disability’ and also towards ‘Loss Of Income During LaidOff Period’ and also submitted that the compensation awarded towards various other heads are also on lower side and insufficient. Therefore, prays for enhancement of compensation.

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On the other hand, the learned counsel appearing for respondent No.3 – insurance company submitted that no interference is required. Further, in the absence of the income of the appellant, the notional income only has to be taken and not otherwise. Therefore, submitted that the compensation awarded under each head is correct and adequate. Therefore, prays for dismissal of the appeal.

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Heard arguments of the learned counsel for the appellant and the learned counsel for respondent No.3 – insurance company and perused the materials on record.

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The compensation awarded by the Tribunal is as follows:

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Pain, Injuries And Suffering	: Rs.	40,000/-
Medical Expenses	: Rs.	1,15,000/-
Incidental Expenses	: Rs.	5,000/-
Loss of amenities in future in life	: Rs.	35,000/-
TOTAL	: Rs.	1,95,000/-

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As per the wound Certificate at Exhihibit-P8,

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the appellant-claimant has suffered the following injuries:

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“i. Fracture of right femur at lower end, ii. Injury to right clavicle with haemothorces, iii. Fracture of right maxillary with right zygomatic arch and to left frontal sinus”

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The Tribunal has awarded a sum of

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Rs.40,000/- towards ‘Pain And Suffering’ and the same is appropriate and hence kept in tact.

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The Tribunal has awarded a compensation of

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Rs.1,15,000/- towards ‘Medical Expenses’. The same is as per the evidence on record. Therefore, the same needs no interference and is kept in tact.

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Further, the Tribunal has held compensation of

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Rs.5,000/- towards ‘Incidental Expenses’, which is meagre.

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Considering the fractures and surgery undergone, the appellant must have spent considerable expenses towards food, nourishment, conveyance, follow-up treatment, attendant charges, etc. Therefore, a sum of Rs.25,000/- is awarded towards ‘Incidental Expenses’.

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It is stated that the appellant was doing business in provision stores at Mysuru. The appellant has produced the statement of accounts for profit and loss for the year ending 31.03.2003 and income tax returns acknowledgments for the assessment year 2003-2004. However, the appellant has not produced any proof to substantiate the income and earning from the business he was doing in the year 2009. Therefore, a notional income of Rs.5,000/- per month , is taken as monthly income of the appellant, as per the chart of Karnataka State Legal Services Authorities, since the accident has occurred in the year 2009. PW-3, Doctor has assessed the physical disability at 27% relating to whole-body. In the crossexamination he has deposed that he has given treatment to the fracture of femur bone and not for the fracture of

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maxilla and zygomatic bone. He has further deposed that only 25 degree of restriction of the movement. Therefore, except the percentage of difficulty as stated by the Doctor, there is no other major difficulty which would affect him from doing his business. Hence, 15% of functional disability is to be taken into consideration, as per the principles laid down by the Hon’ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another, reported in (2011) 1 SCC 343, wherein it was held that the functional disability can be taken into consideration for calculating the compensation under the head ‘Loss Of Earning Capacity Due To Disability’. The appellant was ‘26’ years at the time of accident. Therefore, the appropriate multiplier applicable as per the judgment of the Hon’ble Supreme Court, in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another reported in AIR 2009 SC 3104 , is ‘17’. Therefore, the compensation under the head ‘Loss Of Future Earning Capacity’ is recalculated and quantified as follows:

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Rs.5,000 x 15/100 x 17 x 12 = Rs.1,53,000/-

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The Tribunal has awarded a compensation of Rs.35,000/- towards ‘loss of amenities in future life’ The appellant has suffered fracture of femur and clevical bone. Therefore, certainly it affects his enjoyment of life and would cause discomfort, inconvenience, mental agony etc. Therefore whatever compensation amount awarded by the Tribunal under this head is not sufficient. Accordingly, a sum of Rs.50,000/- is awarded towards ‘ Loss Of Amenities ’.

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The Tribunal has not awarded any sum towards ‘Loss Of Earning During Laid Up Period’ by taking income Rs.5,000/- per month and calculating the laid up period for three months, a sum of Rs.15,000/(Rs.5,000 x 3) is awarded towards ‘Loss Of Earning During Laid Up Period’.

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Hence, the appellant is entitled for a total enhanced compensation, under various heads as follows:

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Pain, Injuries And Suffering : Rs. 40,000/Incidental Expenses : Rs. 25,000/-

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Medical Expenses	: Rs.	1,15,000/-
Loss of earnings during laid of period (Rs.5,000 x 3 months)	: Rs.	15,000/-
Loss of future earning capacity	: Rs.	1,53,000/-
(Rs.5,000 x 15/100 x 17 x 12)
Loss of Amenities In Future Life	: Rs.	50,000/-
TOTAL	: Rs.	3,98,000/-

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Therefore, the appellant is awarded a total compensation of Rs.3,98,000/- as against the compensation awarded by the Tribunal at Rs.1,95,000/-. Hence, the appellant is entitled for an additional compensation of Rs.2,03,000/- (Rs.3,98,000– Rs.1,95,000), along with interest at 6% per annum from the date of filing of the petition till deposit.

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Further, in the present case it is submitted, that the driver of the Ape Goods Auto bearing registration NO.KA-10-2824, was not holding a valid Driving Licence. Therefore, as per the Section-147 of the M.V. Act, the Insurance Company has defence and also proved the defense. Therefore, under these circumstances, as per Section–147 of the MV Act, the third parties are to be

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satisfied by the insurance company, thereafter recover from the owner of the vehicle. In the connected case in MFA No.5623/2015, which is also arising out of connected MVC No.869/2011, this court by the judgment dated 15.01.2021 has ordered pay and recovery. Therefore, this Court also does not find any reason to deviate from the above stated judgment. Therefore even though, the third respondent-insurance company is not liable to be pay the compensation, but by way of applicability of principle of ‘pay and recovery’ the third respondent-insurance company has to pay the compensation first and then recover from the owner of the offending vehicle as per the principles laid down by this Court in the case of New India Assurance Company Limited vs . Yellavva And Another, reported in 2020 ACJ 2560(FB) , wherein it was held that the Third Party risk to be satisfied by the Insurance Company. Therefore, as per the dictum laid down by the this Court in the aforesaid judgment it is ordered for ‘pay and recovery’ is made. The third respondent – insurance company is directed to satisfy

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the compensation amount and then recover from the owner of the offending vehicle.

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Accordingly, I pass the following:

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ORDER

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i. The appeal is allowed in part . ii. The appellant is entitled for an additional compensation of Rs.2,03,000/(Rupees

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Two Lakh Three Thousand Only), along with interest at 6% per annum, from the date of filing of the petition till deposit, in addition to what has been awarded by the Tribunal.

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iii. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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iv. Draw award accordingly.

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Sd/JUDGE

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M Gopal v. Shekara

Case brief

What is this about?

What did the court decide?

M Gopal v. Shekara

Case brief

What is this about?

What did the court decide?

What the court decided

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