Partly allowed

Sri. Ramesh v. Sri. Rajesh

Karnataka HC14 Nov 2022MFA/9828/2018

Case brief

AI extract

What is this about?

Appeals filed by the insurance company challenging the compensation quantum and by the claimant seeking enhancement. The High Court recalcuated future earning capacity based on professional avocation and slightly lower notional income. The award was enhanced from Rs. 6.30 lakhs to Rs. 5.54 lakhs and affirmed as final.

What did the court decide?

The impugned judgment and award were modified; the appellant claimant awarded Rs. 5,54,236/-. The insurance company directed to deposit the amount within eight weeks.

Sri. Ramesh Vs Sri. Rajesh — Motor Accident Claims | Karnataka HC (2022)

¶1

MFA NO.7270/2018 A/W MFA NO.9828/2018

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 14^TH DAY OF NOVEMBER, 2022

¶5

BEFORE

¶6

THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

¶7

M.F.A.NO.7270/2018 (MV-I) A/W

¶8

M.F.A.NO.9828/2018 (MV-I)

¶9

IN M.F.A.NO.7270/2018

¶10

BETWEEN:

¶11

THE MANAGER

¶12

THE ORIENTAL INSURANCE COMPANY LIMITED, REGIONAL OFFICE NO.44/45,

¶13

LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE-560025. REPRESENTED BY ITS REGIONAL MANAGER.

¶14

... APPELLANT

¶15

(BY SRI.B S UMESH, ADVOCATE)

¶16

AND

¶17

1 . SRI RAMESH

¶18

S/O MOTEGOWDA, RESIDING AT 4^TH CROSS, PAMPA EXTENSIO, KEMPAPAURA HEBBAL, BENGALURU NORTH, BENGALURU-560 024.

¶19

SRI. RAJESH S/O NAGARAJU, AGED MAJOR, EXACT NOT KNOWN TO APPELLANT, RESIDING AT GOLLARHALLI,

¶20

MFA NO.7270/2018 A/W MFA NO.9828/2018

¶21

¶22

HALAGUDU POST, MALAVALLI TALUK, MANDYA DISTRICT-571121.

¶23

…. RESPONDENTS

¶24

(BY SRI. SURESH M. LATUR, ADVOCATE FOR R1, R2NOTICE DISPENSED WITH V/O DTD:12/10/2018)

¶25

THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:14.06.2018 PASSED IN MVC NO.974/2017 ON THE FILE OF THE 21ST ADDITIONAL SMALL CAUSE JUDGE AND THE MACT, (SCCH-23), BENGALURU, AWARDING COMPENSATION OF RS.6,30,236/- WITH INTEREST AT 6% P.A. FORM THE DATE OF PETITION TILL THE DEPOSIT.

¶26

IN MFA NO.9828/2018

¶27

BETWEEN

¶28

SRI. RAMESH S/O MOTEGOWDA, OCC: LORRY CLEANER, R/AT 4TH CROSS, PAMPA EXTENSION, KEMPAPURA HEBBAL, BENGALURU NORTH, BENGALURU-560024.

¶29

...APPELLANT

¶30

(BY SRI. SURESH M LATUR, ADVOCATE)

¶31

AND

¶32

1 . SRI. RAJESH S/O NAGARAJU, GOLLARAHALLI, HALAGUR POST, MALAVALLI TALUK MANDYA DISTRICT.

¶33

MFA NO.7270/2018 A/W MFA NO.9828/2018

¶34

¶35

2 . THE MANAGER THE ORIENTAL INSURANCE COMPANY LTD., NO.44/45, LEO COMPLEX, RESIDENCE ROAD, BENGALURU-560 025.

¶36

…. RESPONDENTS

¶37

(BY SRI. B.S.UMESH, ADVOCATE FOR R2, R1-NOTICE DISPENSED WITH V/O DATED 06/12/2019)

¶38

THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14/06/2018, PASSED IN MVC NO.974/2017, ON THE FILE OF THE XXI ADDITIONAL SMALL CAUSES JUDGE & XIX ACMM., MEMBER, MACT, BENGALURU (SCCH-23), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶39

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

¶40

J U D G M E N T

¶41

These appeals are filed under Section-173(1) of

¶42

the Motor Vehicles Act 1988 (hereinafter referred to as ‘MV Act’ for brevity) challenging the judgment and award dated 14.06.2018, passed in M.V.C.No.974/2017, on the file of the XXI Additional Small Causes Judge and the MACT (SSCH-23), at

¶43

4 MFA NO.7270/2018 A/W MFA NO.9828/2018

¶44

Bengaluru, (hereinafter referred to as ‘the Tribunal’ for brevity).

¶45

MFA No.7270/2018 is filed by the appellantInsurance Company calling in question the quantum of compensation awarded by the Tribunal.

¶46

MFA No.9828/2018 is filed by the appellantclaimant seeking enhancement of the compensation awarded by the Tribunal.

¶47

Brief facts:

¶48

On 15.01.2017, at about 7.00 p.m., near

¶49

Bamboo Bazar, Shivajinagar, Bengaluru, when the driver of the lorry bearing registration No.KA-11-A5355 belonging to respondent No.1, drove the same in a rash and negligent manner towards reverse side and dashed against the claimant, who was giving signal to the driver for taking lorry towards reverse. As a result

¶50

MFA NO.7270/2018 A/W MFA NO.9828/2018

¶51

¶52

of which, the claimant fell down and sustained multiple fracture injuries as showing the

¶53

Hence, a claim petition was filed by the claimant 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.6,30,236/- along with interest at 6% per annum from the date of petition till the date of deposit. The Tribunal held respondent – insurance company liable to pay the compensation.

¶54

Heard arguments of the learned counsel for

¶55

the parties and perused the materials on record.

¶56

The learned counsel for the appellantclaimant submitted that the quantum of compensation awarded under various heads is on lesser side. Therefore, seeks for enhancement of the compensation.

¶57

MFA NO.7270/2018 A/W MFA NO.9828/2018

¶58

¶59

6. On the other hand, the learned counsel

¶60

appearing for the respondent - insurance company submitted that the quantum of compensation awarded by the Tribunal is not justified and that there are no grounds for enhancement.

¶61

7. The compensation awarded by the Tribunal

¶62

is as follows:

¶63

Pain and Sufferings	:	Rs.	60,000/-
Loss of Future Earnings	:	Rs.	4,53,600/-
Medical Expenses	:	Rs.	21,636/-
Future Medical Expenses	:	Rs.	20,000/-
Loss of Amenities in Life	:	Rs.	20,000/-
Conveyance, Nourishment and nutritious food	:	Rs.	30,000/-
Loss of earning during the laid up period	:	Rs.	25,000/-
TOTAL	:	Rs.	6,30,236/-

¶64

The Wound Certificate, at Exhibit-P8,

¶65

Discharge Summary at Exhibit-P9 and P10 and Case Sheets at Exhibit-P17 alongwith the evidence of Doctor, PW-2 proved the fact that the claimant had

¶66

7 MFA NO.7270/2018 A/W MFA NO.9828/2018

¶67

suffered fracture of tibia and fibula bones of right leg. PW-2, Doctor had stated that the claimant had suffered 58% of permanent physical disability to the right lower limb and 29% disability to the whole body. However, the Tribunal is not in coherence in holding that the claimant had suffered 16% physical permanent disability to the whole-body and 25% permanent functional disability. But the Tribunal while assessing and calculating the quantum under the head ‘Loss Of Future Earning Capacity Due To Disability’ it is held as 30% functional disability to the whole-body. Therefore, the Tribunal is not having any coherence in application of mind while determining the permanent physical disability and functional disability of the claimant.

¶68

But upon considering the nature of injuries

¶69

sustained, that the claimant has sustained fracture of tibia and fibula and tibia is the bone is weight bearing bone and the claimant being a cleaner by profession

¶70

MFA NO.7270/2018 A/W MFA NO.9828/2018

¶71

¶72

and therefore the evidence of PW-2 Doctor is to be considered, wherein the PW-2 Doctor has stated that the claimant has suffered 58% disability towards right lower limb and assessed 29% of permanent disability to the whole-body. The Doctor could only state an opinion regarding permanent physical disability. The criteria for calculating functional disability is elaborately discussed by the Hon’ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another¹ Therefore, considering the principles laid down by the Hon’ble Supreme Court stated supra, and the injuries suffered by the appellant and the avocation of the appellant-claimant being cleaner, certainly the disability will affect his earning capacity. Accordingly, 20% permanent disability is taken to the whole-body.

¶73

The accident in question has occurred

¶74

during the year 2017. The Tribunal has held the

¶75

1 (2011) 1 SCC 343

¶76

MFA NO.7270/2018 A/W MFA NO.9828/2018

¶77

¶78

income of the claimant at Rs.9,000/- per month, which is on lesser side. Therefore, as per Chart of notional income recognized by the Karnataka State Legal Services Authority, a sum of Rs.11,000/- per month is to be taken as notional monthly income of the claimant. The claimant was aged 43 years at the time of the 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 Another² is ‘14’. Therefore, the compensation under the head ‘Loss Of Earning Capacity Due to Disability’ is recalculated and quantified as follows:

¶79

Rs.11,000/- x 20% x 14 x 12 = Rs.3,69,600/-

¶80

Accordingly, awarded.

¶81

In view of the accidental injuries, the claimant would have taken rest for atleast for a period

¶82

2 AIR 2009 SC 3104

¶83

MFA NO.7270/2018 A/W MFA NO.9828/2018

¶84

¶85

of Three months. Therefore, by taking income at Rs.11,000/- per month and calculating the laid up period for Three months, the claimant is entitled for a sum of Rs.33,000/- (Rs.11,000 x 3 months) , under the head ‘Loss Of Earning During Laid Up Period’ .

¶86

The compensation awarded by the Tribunal under various other heads are found to be just and proper and therefore they are Kept In Tact .

¶87

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

¶88

Pain and Sufferings	:	Rs.	60,000/-	Kept in tact
Loss of Future Earnings Due to Disability (Rs.11,000 x 20% x 14 x 12)	:	Rs.	3,69,600/-
Medical Expenses	:	Rs.	21,636/-	Kept in tact
Future Medical Expenses	:	Rs.	20,000/-	Kept in tact
Loss of Amenities in Life	:	Rs.	20,000/-	Kept in tact
Conveyance, Nourishment and nutritious food	:	Rs.	30,000/-	Kept in tact
Loss of earning during	:	Rs.	33,000/-

¶89

MFA NO.7270/2018 A/W MFA NO.9828/2018

¶90

¶91

the laid up period (Rs.11,000 x 3 months) TOTAL : Rs. 5,54,236/-

¶92

Therefore, the appellant is awarded a total

¶93

compensation of Rs.5,54,236/- as against the compensation awarded by the Tribunal at Rs.6,30,236/-, along with interest at 6% per annum from the date of filing of the petition till the date of realisation. The respondent – insurance company shall deposit the aforesaid compensation amount within

¶94

Eight Weeks from the date of receipt of a copy of this order.

¶95

15. Accordingly, I pass the following:

¶96

ORDER

¶97

i. MFA No.7270/2018 filed by the appellantInsurance Company is allowed in part .

¶98

ii. MFA No.9828/2018 filed by the appellantclaimant is allowed in part .

¶99

iii. The impugned judgment and award dated 14.06.2018, passed in M.V.C.No.974/2017, on

¶100

12 MFA NO.7270/2018 A/W MFA NO.9828/2018

¶101

the file of the XXI Additional Small Causes Judge and the MACT (SSCH-23), at Bengaluru, is modified to the aforesaid extent.

¶102

iv. The appellant-claimant is entitled for a total compensation of Rs.5,54,236/- , along with interest at 6% per annum from the date of filing of the petition till the date of realization.

¶103

v. The respondent – insurance company shall deposit the aforesaid compensation amount within Eight Weeks from the date of receipt of a copy of this order.

¶104

vi. The amount in deposit shall be transferred to the Tribunal forthwith.

¶105

vii. 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.

¶106

MFA NO.7270/2018 A/W MFA NO.9828/2018

¶107

¶108

viii. Draw award accordingly.

¶109

ix. No order as to costs.

¶110

Sd/-

¶111

JUDGE

¶112