Sri Sundhara Raj C v. M/S the New India Assurance Co. Ltd.

Karnataka HC11 Dec 2023MFA/1146/2018

Case brief

AI extract

What is this about?

Appeal against an Motor Accident Claims Tribunal award. The High Court held there was no contributory negligence on the appellant. The compensation was enhanced to Rs. 5,01,400/- by increasing medical and attendant expenses, adjusting lost income based on notional earnings, and recalculating future loss of income based on doctor's 15% disability assessment.

What did the court decide?

Compensation enhanced to Rs. 5,01,400/-, carrying 6% p.a. interest. Insurance Company jointly and severally liable.

Sri Sundhara Raj C Vs M/S the New India Assurance Co… — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:46319 MFA No. 1146 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 1146 OF 2018

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BETWEEN:

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SRI.SUNDHARA RAJ C., S/O RAMACHANDRA, AGED ABOUT 30 YEARS, R/O C- 22/12, DEVADODDI VILLAGE, BAIREDDY PALLI MANDAL, THOTAKANUMA, CHITTOR, ANDHRA PRADESH.

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PRESENTLY RESIDING OF C/O S.C. BASHA, NO.133, 16TH MAIN, 20TH CROSS, BTM LAYOUT, 2ND STAGE, BANGALORE - 76.

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Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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(BY SRI.A.B SOMAPUR.,ADVOCATE)

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AND:

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…APPELLANT

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M/S THE NEW INDIA ASSURANCE CO LTD, BY ITS REGIONAL MANAGER, REGIONAL OFFICE, THIRD PARTY HUB, NO 2-B, UNITY BUILDING ANNEXE, P.KALINGA RAO ROAD, BANGALORE - 560 027.

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NC: 2023:KHC:46319 MFA No. 1146 of 2018

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SRI.SHEJIMON, S/O GANGATHARAN, MAJOR, R/AT NO.10, S.S.S BUILDING, 1ST MAIN, A.V. ROAD, CHAMRAJAPET, BANGALORE - 18.

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…RESPONDENTS

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(BY SRI. K.NAGARAJAIAH.,ADVOCATE FOR R1) (VIDE ORDER DATED 01.07.2019 NOTICE TO R2 D/W)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11/09/2017, PASSED IN MVC NO.2506/2015, ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSES JUDGE & MACT, (SCCH-17), BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This is an appeal filed by the claimant aggrieved by the award passed in M.V.C.No.2506/2015, dated 11.09.2015, by the XIX Additional SCJ and MACT, seeking enhancement of the compensation as well as questioning the contributory negligence of fixed at 25% on the claimant.

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The claim petition was filed seeking compensation of an amount of Rs.20,00,000/- for the injuries sustained

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by the claimant in the road accident. It is the case of the

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claimant that on 15.05.2015 at about 1.00 p.m., he was riding the motor cycle, at that time, a tanker lorry came in

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a high speed and caused the accident by dashing the motor cycle, due to that impact he has fell down and sustained injuries. As per the wound certificate he had sustained 4 fractures and was in hospital for 20 days. According to the claimant he was working as an electrician and earning an amount of Rs.15,000/- per month. In that regard he had examined that employer-contractor that as per the contractor Ex.P8 is the salary certificate and examined Pw.2 who stated that he was paying Rs.500/per day. The Court had disbelieved the evidence of the Pw.2 observing that except making the self serving statement he had not adduced any other evidence to show that he was paying the salary of Rs.15,000/- and considered the salary at Rs.7,000/-. Then coming to the head of pain and suffering granted an amount of Rs.90,000/-, then attendant charges, extra nourishment and food and conveyance Rs.20,000/-, towards Medical expenses as no evidence is adduced, no amounts were

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granted. Then coming to the loss of earning during the laid up period considering three months period as laid up period and income at Rs.7,000/- granted Rs.21,000/-. Coming to the loss of future income, due to disability according to the doctor the claimant had sustained 19% disability to the whole body. Court had considered 15% disability but while calculating has taken the disability at 10% and the Court had granted an amount of Rs.1,42,800/- (7,000X12X17X10/100=1,42,800/-). Then coming to the loss of future amenities and happiness the Court below had granted an amount of Rs.20,000/-. Then future medical expenses, as there is no evidence of the doctor in this regard no amounts were granted. Altogether, compensation of an amount of Rs.2,93,800/was granted by the Tribunal.

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When it comes to the liability the Court has held

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that the accident had taken place at a curve towards right which shows that there is negligence on the part of both the lorry driver and rider of the motorcycle. In a curve it is

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the bounden duty of drivers to drive the vehicles slowly. More particularly, the drivers of heavy vehicle; because if they loss control chances of creating damages rather than the riders of two wheelers. Hence, the Court has apportioned the negligence on the lorry driver at 75% and rider of motorcycle at 25%. The Insurance Company was directed to pay 75% of the amount.

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The Learned counsel appearing for the claimant submits that immediately after the accident the brother of the injured has given a complaint wherein he has stated that in the process of overtaking a vehicle the lorry came and dashed the two wheeler and he sustained the injuries. It is submitted that the charge sheet is filed against the driver of the lorry. Though all the police record and the evidence of the claimant is consistent the Court without any basis had fixed on the contributory negligence on the claimant. He submits that when it is the case of the Insurance Company that there is a contributory negligence on the part of the rider of the vehicle it ought to have

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NC: 2023:KHC:46319 MFA No. 1146 of 2018

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adduced the evidence. Whereas in this case there is no such evidence adduced and without any basis the Court had come to such a conclusion and apportioned the negligence at contributory negligence at 25% and 75%.

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The Learned counsel submits that even on the compensation also the Court has not granted a reasonable compensation. According to the claimant, he is earning an amount of Rs.15,000/- per month. In that regard Ex.P8 is marked and he has examined Pw.3. The Court without considering the said evidence had taken an amount of Rs. 7,000/- as income. He submits that when he had sustained four fractures granting of an amount of Rs. 90,000/- under the head of pain and suffering and Rs. 20,000/- for the loss of amenities is on the lower side. It is submitted that he was working as an electrician and the disability would have an impact on his life. The Court ought not to have taken 10% as a disability. He had relied on the judgment of Hon’ble Apex Court in case of

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Nagarajappa -VsDivisional Manager Oriental

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Insurance Company Limited¹ . He submits that when injuries sustained by the claimant will have an impact on the future earning the disability as assessed by the doctor ought to be considered. He submits that the Court below had not considered the disability as per the evidence of the doctor. Further he submits that the Court having held that it is 15%. Again when it comes to the compensation had taken 10% which is on the lower side. He submits that he was in hospital for 20 days as inpatient and the multiple fractures he had sustained granting of only an amount of Rs.20,000/- under the head of attendant, transport and extra nourishment is on the lower side. It is submitted that the compensation that was granted was not a just and reasonable compensation.

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The Learned counsel appearing for the Insurance Company submits that the Court below had rightly considered the evidence and granted the compensation. Further the Court had rightly come to the conclusion about the contributory negligence. He submits that the granting 1 AIR 2011 SC 1785

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of 7% interest is on the higher side. It is submitted that, the Court below had rightly not believed the evidence and considered the income at Rs.7,000/-. He submits that no grounds are made out for enhancement of the compensation, the contributory negligence is rightly fixed at 25% on the claimant looking at the sketch map which is marked as Ex.P4.

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Having heard the learned counsels on either side, perused the entire material on record. First coming to the contributory negligence it is the case of the claimant and as per Ex.P1 the complaint which is immediately after the incident, it is stated that while in the process of overtaking a vehicle, the lorry came and dashed to the claimant. He fell down and sustained injury. The police have conducted a full-pledged investigation and filed the charge sheet. The Court has jumped to the conclusion without any basis and without any evidence adduced by the Respondent – Insurance Company that there is contributory negligence. The Court below ought not to have held that there is

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NC: 2023:KHC:46319 MFA No. 1146 of 2018

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contributory negligence on the part of the claimant. Accordingly, considering the complaint, spot sketch, charge-sheet and the evidence of Pw.1. This Court comes to the conclusion that there is no contributory negligence on the part of the claimant. The Insurance Company failed to prove that there is contributory negligence on the part of the claimant and the other evidence on record supports the case of the claimant that the driver of the offending vehicle is at fault.

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Coming to the compensation, the claimant had sustained four fractures the Court had granted an amount of Rs.90,000/- under the head of pain and suffering and this Court finds no reason to interfere. Coming to the

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attendant, extra nourishment and conveyance the

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Court had granted an amount of Rs.20,000/-. Considering the fact that he was in hospital for 20 days and the multiple fractures this Court is inclined to grant an amount of Rs.40,000/-. Then, under the head of medical expenses as no bills were filed. The Court below had not

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granted any compensation. Considering these multiple fracture he might of incurred some amount. This Court is inclined to grant an amount of

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Rs.10,000/- under the said head. Then, coming to the loss of income during the laid up period according to the claimant he is earning an amount of Rs.500/- per day i.e., 15,000/- per month. He has examined the employer, Pw.2 and marked as Ex.P8 – salary certificate. The Court had rightly not considered the same holding that except the self serving statement of Pw.2, he has not produced any document. However, as this accident is of the year 2015, this Court is inclined to take an amount of Rs.9,000/- as the notional income . Considering the injuries it would take four months for the claimant, hence an amount of Rs.36,000/- is granted under the head of loss of income during laid up period , towards loss of future income due to disability the doctor had opined 19% disability. The Court considering that fractures were united had taken 15% as disability, then on what basis it has calculated at 10% there is no discussion. Hence,

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considering 15% (9,000X12X17X15/100=2,75,400/-)

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claimant is entitled for an amount of Rs.2,75,400/-.

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Towards loss of amenities considering the occupation of electrician and the multiple fractures this Court is granting an amount of Rs.40,000/- under the head of amenities.

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In the light of the law laid down by the Hon'ble Supreme Court in the case of V. MEKALA -vs- M. MALATHI AND ANOTHER² , the claimant is entitled for an amount of Rs.10,000/- towards legal expenses. Altogether, the claimant is entitled for an amount of Rs.5,01,400/-.

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The claimant is entitled for compensation under the following heads:

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Sl.No.	Heads	Compensation awarded
1.	Pain and Suffering	90,000.00
2.	Loss of income during the laid up period 9000x4	36,000.00

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2 (2014) 11 SCC 178

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3.	Loss of income due to disability 9000x12x17x15/100	2,75,400.00
4.	Medical Expenses	10,000.00
5.	Conveyance, Nourishment and attendant charges	40,000.00
6.	Loss of amenities	40,000.00
7.	Legal Expenses	10,000.00
	Total	5,01,400.00

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Accordingly, the appeal of claimant is allowed in part , by enhancing the compensation amount from an amount of Rs.2,93,800/- to Rs.5,01,400/-.

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i) The enhanced amount shall carry interest at 6% p.a. from the date of the petition till the date of realization.

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ii) The Insurance Company and the owner of the vehicle jointly and severally liable to pay the compensation.

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iii) Respondent-Insurance Company shall deposit the enhanced compensation amount within a period of eight weeks from

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the date of receipt of copy of the judgment. On such deposit, the claimant is entitled to withdraw the same without furnishing the security.

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iv) The Registry is directed to return the Trial Court Record to the Tribunal along with the certified copy of the order passed by this Hon'ble Court forthwith without any delay.

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v) No Costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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SD/JUDGE

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RMS

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List No.: 1 Sl No.: 66

Sri Sundhara Raj C v. M/S the New India Assurance Co. Ltd.

Case brief

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Sri Sundhara Raj C v. M/S the New India Assurance Co. Ltd.

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