Partly allowed

National Insurance Com. Ltd., v. Venkateshappa

Karnataka HC7 Jun 2022MFA/7651/2017

Case brief

AI extract

What is this about?

High Court allowed two Motor Accident Appeals partly, modifying the Tribunal's awards by reducing notional income to Rs.9,000/month, accepting the whole body disability percentage, and adding heads for loss of amenities and laying up period.

What did the court decide?

Rewarded respondents with enhanced total compensation of Rs.9,80,890/- and Rs.5,46,745/- respectively, plus interest at 6% per annum.

National Insurance Com. Ltd., Vs Venkateshappa — Motor Accident Claims | Karnataka HC (2022)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 07^TH DAY OF JUNE, 2022

¶4

BEFORE

¶5

THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

¶6

M.F.A.NO.7651/2017 C/W M.F.A.NO.7650/2017 (MV)

¶7

IN MFA NO.7651/2017

¶8

BETWEEN:

¶9

NATIONAL INSURANCE COM. LTD., MOTOR CLAIMS HUB, NO.144, SUBHARAM COMPLEX, M.G.ROAD, BANGALORE, BANGALORE-560001. THE MANAGER

¶10

… APPELLANT

¶11

(BY SRI. L. SREEKANTA RAO, ADVOCATE APPEARING THROUGH V/C)

¶12

AND:

¶13

VENKATESHAPPA, S/O LATE JAYAPPA, AGED ABOUT 47 YEARS, R/AT DALAVAIHOSAHALLI VILLAGE, KATRIPURA POST, BANGARPET TALUK, KOLAR DISTRICT-563101.

¶14

SMT. UMAMAHESHWARI, W/O M. MEYALANGAN MBS, 1-13-9, OLD EDSAPPAID ROAD, SANKARI TALUK, SALEM DISTRICT, TAMIL NADU-574214.

¶15

... RESPONDENTS

¶16

¶17

(BY SRI. K.T. GURUDEVA PRASAD, ADVOCATE FOR R1, NOTICE TO R2 IS DISPENSED WITH V/O DTD:13/04/2018)

¶18

THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.07.2017 PASSED IN MVC NO.2776/2016 ON THE FILE OF THE 5^TH ADDITIONAL SMALL CAUSES JUDGE & 24^TH ACMM, MEMBER, MACT, BENGALURU, AWARDING COMPENSATION OF RS.6,57,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION AND ETC.,

¶19

IN MFA NO.7650/2017

¶20

BETWEEN

¶21

NATIONAL INSURANCE CO. LTD., MOTOR CLAIMS HUB, NO.144, SUBHARAM COMPLEX, M.G.ROAD, BANGALORE, BANGALORE-560001.

¶22

…APPELLANT

¶23

(BY SRI L. SREEKANTA RAO, ADVOCATE APPEARING THROUGH V/C)

¶24

AND :

¶25

SMT. RUKMINI, W/O VENKATESHAPPA, AGED ABOUT 43 YEARS, R/AT DALAVAIHOSHALLI VILLAGE, KATRIPURA POST, BANGAPET TALUK, KOLAR DISTRICT-563101.

¶26

SMT.UMAMAHESHWARI, W/O. M.MEYALANGAN MBBS, 1-13-9, OLD EDAPPAID ROAD, SANKARI TALUK, SALEM DISTRICT, TAMIL NADU-574212.

¶27

…RESPONDENTS

¶28

¶29

(BY SRI K.T. GURUDEVA PRASAD, ADVOCATE FOR R1, R2-SERVED & UNREPRESENTED)

¶30

THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.07.2017 PASSED IN MVC NO.2775/2016 ON THE FILE OF THE 5^TH ADDITIONAL SMALL CAUSES JUDGE & 24^TH ACMM, MEMBER, MACT, BENGALURU, AWARDING COMPENSATION OF RS.10,96,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION AND ETC.,

¶31

THIS M.F.As. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶32

J U D G M E N T

¶33

MFA No.7651/2017 is filed under Section-173(1) of the Motor Vehicles Act, 1988, (hereinafter referred to as ‘MV Act’ for brevity) by the appellant – insurance company challenging the judgment and award dated 17.07.2017, passed in MVC No.2776/2016, on the file of Motor Accident Claims Tribunal and Vth Additional Judge SCCH-20 Mayo Hall Unit, Bengaluru, (hereinafter referred to as ‘the Tribunal’ for brevity) questioning liability.

¶34

MFA No.7650/2017 is filed under Section-

¶35

173(1) of MV Act by the appellant – insurance company challenging the judgment and award dated 17.07.2017, passed in MVC No.2775/2016, on the file of Motor Accident

¶36

¶37

Claims Tribunal and Vth Additional Judge SCCH-20 Mayo Hall Unit, Bengaluru, (hereinafter referred to as ‘the Tribunal’ for brevity) questioning liability.

¶38

Brief facts:

¶39

On 05.03.2015, at about 4.00 p.m., while the respondents – claimants were traveling as rider and pillion rider in motor cycle bearing registration No.KA-08-S-3272 on NH-4 Road, near Kolathur Gate, Hosakote Taluk, Bengaluru Rural District at that time, a car bearing registration No.TN-27-R-9003 in rash and negligent manner, endangering to human life and dashed to the respondent’s motor cycle. Due to the said impact, both the rider and pillion rider fell down along with motor cycle, due to which they sustained grievous injuries.

¶40

Hence, a claim petition was filed by the respondents – claimants 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 in MVC No.2775/2016, allowed the petition in part, and awarded a compensation of Rs.10,96,000/- along with

¶41

¶42

interest at 9% per annum (excluding Future Medical Expenses) from the date of petition till the date of realisation. Further, the Tribunal on appreciating the materials on record in MVC No.2776/2016, allowed the petition in part, and awarded a compensation of Rs.6,57,000/- along with interest at 9% per annum (excluding Future Medical Expenses) from the date of petition till the date of realisation. The Tribunal held the insurance company-respondent No.1 and the owner of the offending car - Respondent No.2, are jointly and severally liable to pay the compensation.

¶43

MFA No.7650/2017 (MVC No.2775/2016) :

¶44

The learned counsel for the appellantinsurance company submitted that the notional income of Rs.12,000/- per month held by the Tribunal is not correct, in the absence of proof of income. Further, submitted that the percentage of disability held by the Tribunal in both the cases are at a higher rate while considering the functional disability, 1/3^rd of the permanent disability occurred to a particular limb is to be taken into consideration. But the

¶45

¶46

Tribunal has held 50% functional disability. Therefore, the percentage of disability can be reduced. Therefore, argued the Tribunal exorbitantly holding the notional income per month and also the percentage of functional disability has awarded compensation for which the claimants are not entitled. Therefore, prayed for reducing the compensation by modifying the judgment and award passed by the Tribunal.

¶47

6. The Tribunal has awarded compensation under

¶48

various heads as follows:

¶49

Pain, Injuries And Suffering	: Rs.	1,00,000/-
Medical Expenses	: Rs.	3,19,090/-
Loss of Future Income	: Rs.	6,26,400/-
Conveyance	: Rs.	10,000/-
Nourishment And Attendant	: Rs.	10,000/-
Charges
Future Medical Expenses	: Rs.	30,000/-
TOTAL	: Rs.	10,95,490/-

¶50

In the present case, the claimant is a woman who has suffered fracture of right humerus with wrist drop, fracture of left humerus, fracture of mandible with loss of two teeth and underwent surgery, from being admitted as inpatient from 05.03.2016 to 12.03.2016. Therefore,

¶51

¶52

considering the nature of injuries sustained and also medical expenses which are as per the medical records produced, the compensation is awarded which are found to be correct and needs no disturbance.

¶53

The claimant was examined PW-1 stated that she was working as coolie and was earning Rs.300/- per day. But the Tribunal has taken Rs.12,000/- as monthly income. Even if the claimant has stated that she is a coolie and was earning Rs.300/- per day, the monthly income ought to be taken at Rs.9,000/-. Therefore, the notional income at Rs.9,000/per month is taken for consideration. Further, the Doctor PW-3 had given evidence and also issued Disability Certificate that the claimant had sustained permanent disability of both upper limbs and mandible at 58% and that the whole body disability would be at 29%. The learned counsel for the insurance company submitted that the percentage of disability held by the Tribunal is higher side and normally 1/3^rd of the particular limb is to be taken into consideration. Functional disability is not a mathematical

¶54

¶55

calculation disability, it is to be considered keeping in mind the gender of the person, her contribution to the family, the nature of job and physical disability towards a particular limb / limbs. Therefore, considering the factures, the appellant had suffered fracture of right humerus with wrist drop, fracture of left humerus, fracture of mandible with loss of two teeth and underwent surgery. Therefore, the claimant had suffered fracture of both upper limbs. Therefore, considering this the functional disability taken by the Tribunal whole body disability at 29% which is correct and needs no interference.

¶56

Further, the age of the claimant was 40 years at the time of accident. 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 , the appropriate multiplier is ‘15’. Therefore, the compensation under the head ‘Loss Of Future Earning Capacity’ is recalculated and quantified as follows:

¶57

Rs.9,000 x 29/100 x 15 x 12 = Rs.4,69,800/-

¶58

¶59

Further, the Tribunal has not awarded compensation under the head ‘Loss of Amenities’ and ‘Loss Of Income During Laid Up Period’. Therefore, considering the injuries sustained by the claimant who is a woman and she may be facing difficult in doing normal day to day chores, loss of enjoyment in life, discomfort, inconvenience and mental agony, therefore a sum of Rs.15,000/- is awarded under the head ‘Loss of Amenities’.

¶60

Considering the monthly income of the claimant at Rs.9,000/- per month and if the laid up period is taken as three Months, the claimant is entitled for a sum of Rs.27,000/- (Rs.9,000 x 3 months) , under the head ‘Loss Of Earning During Laid Up Period’.

¶61

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

¶62

Pain, Injuries And Suffering : Rs. 1,00,000/(Kept in tact) Medical Expenses : Rs. 3,19,090/(Kept in tact) Loss Of Future Earning Capacity : Rs. 4,69,800/(Rs.9,000 x 29/100 x 15 x 12) Conveyance : Rs. 10,000/(Kept in tact) Nourishment And Attendant : Rs. 10,000/(Kept in tact) Charges

¶63

¶64

Future Medical Expenses	: Rs.	30,000/-
Loss of Amenities	: Rs.	15,000/-
Loss of income during laid up period (Rs.9,000 x 3)	: Rs.	27,000/-
TOTAL	: Rs.	9,80,890/-

¶65

Therefore, the claimant – respondent in MFA No.7651/2017 (MVC No.2775/2016) is awarded a total compensation of Rs.9,80,890/- (Rupees Nine Lakh

¶66

Eighty Thousand Eight Hundred and Ninety Only) as against the compensation awarded by the Tribunal at Rs.10,95,490/- along with interest at 6% per annum from the date of filing of the petition till deposit.

¶67

MFA No.7651/2017 (MVC No.2776/2016) :

¶68

The Tribunal has awarded compensation under various heads as follows:

¶69

Pain, Injuries And Suffering	: Rs.	1,00,000/-
Medical Expenses	: Rs.	1,07,985/-
Loss of Future Income	: Rs.	3,55,680/-
Conveyance	: Rs.	10,000/-
Nourishment And Attendant Charges	: Rs.	10,000/-
Future Medical Expenses	: Rs.	10,000/-
TOTAL	: Rs.	6,56,665/-

¶70

¶71

In the present case, the claimant-respondent has suffered fracture of both bones of left leg, and underwent surgery for left leg and internal fixation was done. Other injuries were treated conservatively. Therefore, considering the nature of injuries sustained and also medical expenses which are as per the medical records produced, the compensation is awarded which are found to be correct and needs no disturbance.

¶72

The claimant has stated that he owned a provision store and was earning Rs.500/- per day. However, the claimant has not produced any evidence in this regard. The Tribunal has taken Rs.12,000/- as monthly income, which is exorbitant. Therefore, the notional income of the claimant is held at Rs.9,000/- per month . Further, the Doctor PW-2 had given evidence and also issued Disability Certificate that the claimant had sustained permanent disability of left lower limb and assessed 38% disability to the particular limb and wholebody disability at 19%. The disability at 19% to the wholebody is accepted and needs no interference.

¶73

¶74

Further, the age of the claimant was 46 years at the time of accident. 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 , the appropriate multiplier is ‘13’. Therefore, the compensation under the head ‘Loss Of Future Earning Capacity’ is recalculated and quantified as follows:

¶75

Rs.9,000 x 19/100 x 13 x 12 = Rs.2,66,760/-

¶76

Further, the Tribunal has not awarded compensation under the head ‘Loss of Amenities’ and ‘Loss of Income during Laid up Period’. Therefore, considering the injuries sustained by the claimant, he may be facing difficult in doing normal day to day chores, loss of enjoyment in life, discomfort, inconvenience and mental agony. Therefore, a sum of Rs.15,000/- is awarded under the head ‘Loss of Amenities’.

¶77

Considering the monthly income of the claimant at Rs.9,000/- per month and if the laid up period

¶78

¶79

is taken as three Months, the claimant is entitled for a sum of Rs.27,000/- (Rs.9,000 x 3 months) , under the head ‘Loss Of Earning During Laid Up Period’.

¶80

Hence, the claimant is entitled for a total

¶81

enhanced compensation, under various heads as follows:

¶82

Pain, Injuries And Suffering	: Rs.	1,00,000/-	(Kept in tact)
Medical Expenses	: Rs.	1,07,985/-	(Kept in tact)
Loss Of Future Earning Capacity (Rs.9,000 x 19/100 x 13 x 12) Conveyance	: Rs. : Rs.	2,66,760/- 10,000/-	(Kept in tact)
Nourishment And Attendant Charges	: Rs.	10,000/-	(Kept in tact)
Future Medical Expenses	: Rs.	10,000/-	(Kept in tact)
Loss of Amenities	: Rs.	15,000/-
Loss of income during laid up period (Rs.9,000 x 3)	: Rs.	27,000/-
TOTAL	: Rs.	5,46,745/-

¶83

Therefore, the claimant – respondent in MFA No.7651/2017 (MVC No.2775/2016) is awarded a total compensation of Rs.5,46,745/- (Rupees Five Lakh Forty Six Thousand Seven Hundred and Forty Five Only) as against the compensation awarded by the Tribunal at Rs.6,57,000/- along with interest at 6% per annum from the date of filing of the petition till deposit.

¶84

¶85

22. Accordingly, I pass the following:

¶86

ORDER

¶87

i. MFA No.7651/2017 (MVC No.2775/2016) is allowed in part. The claimant is awarded a total compensation of Rs.9,80,890/- , along with interest at 6% per annum from the date of filing of the petition till deposit.

¶88

ii. MFA No.7651/2017 (MVC No.2775/2016) is allowed in part. The claimant is awarded a total compensation of Rs.5,46,745/- , along with interest at 6% per annum from the date of filing of the petition till deposit

¶89

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.

¶90

iv. Draw award accordingly.

¶91

Sd/-

¶92

JUDGE

¶93

National Insurance Com. Ltd., v. Venkateshappa

Case brief

What is this about?

What did the court decide?

National Insurance Com. Ltd., v. Venkateshappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The Divisional Manager, Vs R Chandrappa

The Divisional Manager, Vs Anjenappa

Sri Shankar Naik Vs Sri M Govindaraj

National Insurance Co. Ltd. Vs Smt Rukmini

The Asst. Executive Engineer Vs Smt. Kempamma

Rohit G.S Vs the Divisional Manager