Partly allowed

Sri Rangaswamy v. Sri Srinivasa

Karnataka HC22 Nov 2023MFA/1378/2021

Case brief

AI extract

What is this about?

The High Court allowed the MFA filed under Section 173(1) of the MV Act by a motor accident victim. The single judge enhanced the compensation awarded by the Tribunal from Rs. 9.11 lakhs to Rs. 13.95 lakhs by recalculating future income loss and increasing awards for amenities and future medical costs, while reducing the interest rate to 6%. The insurance company was directed to deposit 85% of the

What did the court decide?

The appeal was allowed in part. Compensation increased to Rs. 16,41,550; insurer to deposit 85% (Rs. 13,95,318) plus 6% interest.

Sri Rangaswamy Vs Sri Srinivasa — Insurance | Karnataka HC (2023)

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1 - NC: 2023:KHC:42014 MFA No. 1378 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 1378 OF 2021 (MV)

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BETWEEN:

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SRI RANGASWAMY S/O LATE PUTTRANGASHETTY AGED ABOUT 51 YEARS R/AT C/O RAJU, ALLAPATANA VILLAGE SRIRANGAPATNA TALUK MANDYA DISTRICT 571401.

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…APPELLANT

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(BY SRI. MANJUNATH N D., ADVOCATE)

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AND:

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SRI SRINIVASA

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Digitally signed by DHANALAKSHMI MURTHY Location: High Court of Karnataka

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S/O SWAMYGOWDA AGED ABOUT 45 YEARS R/AT NO.10/1, DODDAVADARAGUDI (BOMMANAHALI) K.R.NAGARA TALUK MYSORE DISTRICT,LAKSHAR MOHALLA MYSORE 57001.

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HDFC ERGO GENERAL INSURANCE COMPANY LTD., 1ST FLOOR, H.M. JINEVA HOUSE NO.14, CUNNINGHAM ROAD BANGALORE 560001.

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…RESPONDENTS

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(BY SRI.MALLIKARJUNA REDDY N.A., ADVOCATE FOR SRI. B. PRADEEP B., ADVOCATE FOR R2: NOTICE TO R1 IS D/W V/O DATED: 25.11.2022)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 26.11.2019,

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PASSED IN MVC NO.139/2018, ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT, SRIRANGAPATANA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal under Section 173(1) of Motor Vehicles

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Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant being aggrieved by the judgment dated 26.11.2019 passed by MACT, Srirangapatana in MVC No.139/2018.

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Facts giving rise to the filing of the appeal briefly stated are that on 31.08.2017 at about 08.00 p.m., the claimant was riding the motor bike bearing Registration No.KA-45-R-2014 in a slow and cautious manner on the left side of the road and when he reached near Patadalamma Temple, on Hassan-Mysuru road, Sugganahalli Village, at that time, the driver of the Tata Ace Magic Vehicle bearing Registration No.KA-45-7700 drove the same in a rash and negligent manner and

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dashed to the claimant’s motor bike. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance charges, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.

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On service of notice, the respondent No.2 appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent driving of the vehicle by the claimant himself. The driver of the offending vehicle did not have valid driving licence as on the date of the accident. The liability is subject to terms and conditions of

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the policy. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.

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The respondent No.1 did not appear before the Tribunal inspite of service of notice and was placed exparte.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1

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and Dr.Ravindranath K was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P12. On behalf of the respondents, one witness was examined as RW-1 and got exhibited documents namely Ex.R1 to Ex.R6. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a

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result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.9,11,000/- along with interest at the rate of 9% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, the present appeal has been filed.

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The learned counsel for the claimant has raised the following contentions:

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a) Firstly, even though the claimant claims that he was doing agricultural work and dairying and earning Rs.20,000/- per month, but the Tribunal has taken the notional income as merely as Rs.6,000/- p.m. b) Secondly, the claimant has examined the doctor as PW-2. The doctor in his evidence has stated that the claimant’s right leg below the knee was amputated and he further stated that the claimant has suffered disability of 25.5% to right upper limb and 66% to the right lower limb. Due to the said disability, the claimant is unable to do his day to day work. The Tribunal instead assessing the

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functional disability to an extent of 100%, has assessed the whole body disability at 59% which is on the lower side.

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c) Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 4 ½ months. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment. Considering the same, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings', future medical expenses and other incidental expenses are on the lower side. Hence, he sought for allowing the appeal.

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On the other hand, the learned counsel for the Insurance Company has raised following counter contentions:

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a) Firstly, even though the claimant claims that he was earning Rs.20,000/- per month, he has not produced any documents to establish his income. In the absence of proof

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of income, the Tribunal has rightly assessed the income of the claimant notionally.

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b) Secondly, even though the claimant’s right leg below the knee was amputated, the Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 59%.

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c) Thirdly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings', future medical expenses and other incidental expenses are just and reasonable and it does not call for interference.

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d) Lastly, in view of the Division Bench decision of this Court in the case of Ms.Joyeeta Bose and others –vVenkateshan.V and others (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the rate of interest awarded by the Tribunal at 9% p.a. on the compensation amount is on the higher side. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties and

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perused the judgment and award of the Tribunal.

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It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 31.08.2017 due to rash and negligent driving of the offending vehicle by its driver.

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The claimant claims that he was earning Rs.20,000/per month. He has not produced any documents to prove his income. Therefore, in the absence of proof of income, notional income has to be assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken place in the year 2017, the notional income has to be taken at Rs.11,000/- p.m.

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As per wound certificate, the claimant has sustained suture wound over occipital region of scalp measuring 3x5 cm, fracture of lower 3^rd of ulna with fracture of 3^rd and 4^th

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metacarpal bone, the gloving crush injuries to right foot and amputation was done above the knee joint. The doctor in his evidence has stated that the claimant’s right leg below the knee was amputated and he further stated that the claimant has suffered disability of 25.5% to right upper limb and 66% to the right lower limb. The Tribunal after considering the evidence of the doctor, injuries suffered by the claimant, has rightly assessed the whole body disability at 59%. Due to amputation of his right leg below the knee, the claimant is unable to do his day to day work and it affects his agricultural activities. Therefore, considering the evidence of the doctor, injuries suffered by the claimant, age and avocation of the claimant and in view of judgment of the, judgment of the Hon’ble Apex Court in the cases of PAPPU DEO YADAV vs. NARESH KUMAR AND OTHERS’ 2020 SCC Online SC 752 and ‘ERUDHAYA PRIYA vs. STATE EXPRESS TRANSPORT CORPORATION LTD. 2020’ SCC Online SC 601, the claimant is entitled for future prospects. Since the claimant was aged about 48 years 25% has to be added

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on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157 . Thus, the monthly income comes to Rs.13,750/-. The claimant is aged about 48 years at the time of the accident and multiplier applicable to his age group is ‘13’. Thus, the claimant is entitled for compensation of Rs.12,65,550/- (Rs.13,7501213*59%) on account of 'loss of future income'.

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The nature of injuries suggests that the claimant must have been under rest and treatment for a period of 5 months. Therefore, the claimant is entitled for compensation of Rs.55,000/- (Rs.11,000*5 months) under the head ‘loss of income during laid up period’.

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Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He was treated as inpatient for more than 4 ½ months in the

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hospital. He has suffered lot of pain during treatment and he has to suffer with the disability stated by the doctor throughout his life. Considering the same, I am inclined to enhance the compensation awarded by the Tribunal under the head of loss of amenities' from Rs.40,000/- to Rs.55,000/- and under the head of 'future medical expenses’ from Rs.15,000/- to Rs.20,000/- which does not carry any interest.

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Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the following compensation:

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Compensation under different Heads	As awarded by the Tribunal	As awarded by this Court
	(Rs.)	(Rs.)
Pain and sufferings	75,000	75,000

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Medical expenses	1,56,000	1,56,000
Food, nourishment, conveyance and attendant charges	15,000	15,000
Loss of income during laid up period	35,000	55,000
Loss of amenities	40,000	55,000
Loss of future income	7,36,000	12,65,550
Future medical expenses	15,000	20,000
Total	10,72,000	16,41,550
Less 15% contributory negligence of claimant	1,60,800	2,46,232
Total 85%	9,11,200	13,95,318
Tribunal has rounded of the from Rs.9,11,200/- to Rs,9	compensation ,11,000/-	amount

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In respect of negligence is concerned, the Tribunal after considering the material available on record, has rightly held that the claimant has also contributed negligence to an extent of 15% to the accident.

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17. Therefore, I pass the following order:

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ORDER

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a) The appeal is allowed in part .

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b) The judgment of the Claims Tribunal is modified.

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c) The claimant is entitled to a total compensation of Rs.16,41,550/-.

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d) In view of judgment of the Division Bench

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of this Court in the case of ‘MS.JOYEETA BOSE’ (supra) , the enhanced compensation shall carry interest at 6% per annum.

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e) The Insurance Company is directed to deposit 85% of the total compensation amount of Rs.16,41,550/- i.e. Rs.13,95,318/- along

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with interest from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment excluding interest on the

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14 -

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enhanced compensation awarded under the head

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of 'future medical expenses'.

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Sd/JUDGE

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HA List No.: 3 Sl No.: 51

Sri Rangaswamy v. Sri Srinivasa

Case brief

What is this about?

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Sri Rangaswamy v. Sri Srinivasa

Case brief

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