Partly allowed

Sri Prasanna v. Boregowda

Karnataka HC14 Jul 2023MFA/1618/2017

Case brief

AI extract

What is this about?

In an appeal against a motor accident award, the High Court affirmed the notional income standard but held the injury affected the appellant's professional efficiency. Consequently, the court enhanced compensation considering functional disability and increased awards for future loss of income, past loss of income, and pain and suffering, ordering the insurer to deposit the additional amount.

What did the court decide?

Enhancement of compensation by Rs. 93,340/- with interest at 6% p.a. awarded; insurer directed to deposit the amount.

Sri Prasanna Vs Boregowda — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:24565 MFA No. 1618 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI MISCELLANEOUS FIRST APPEAL NO. 1618 OF 2017 (MV-I)

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BETWEEN:

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SRI PRASANNA, S/O. LAKSHMEGOWDA, AGED ABOUT 33 YEARS, LORRY DRIVER, R/O HEDDANAHALLI VILLAGE, DUDDA HOBLI, HASSAN TALUK,

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…APPELLANT

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(BY SRI SHRIPAD V. SHASTRI, ADVOCATE)

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AND:

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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BOREGOWDA, S/O. MARIGOWDA, R/O. NO. 58, ANUGAVALLI VILALGE, HONNAVARA POST, DUDDA HOBLI, HASSAN TALUK. (OWNER OF HERO HONDA BIKE BEARING NO. KA.13.ED.4540)

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THE MANAGER, NATIONAL INSURANCE COMPANY LIMITED, HERO HONDA VERTICAL, 101, 106, B.M.C. HOUSE, KANNAGOT, NEW DELHI. REPRESENTED BY MANAGER, NATIONAL INSURANCE COMPANY LIMITED, MANJUNATHA COMPLEX, OLD BUS STAND ROAD, HASSAN. POLICY NO. 3901023114620985989 VALID FROM 5.9.2014 TO 4.9.2015

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…RESPONDENTS

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(BY SRI M. S. SRIRAM, ADVOCATE FOR R-2; V/O DATED 23.03.2018, NOTICE TO R-1 IS D/W)

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2 - NC: 2023:KHC:24565 MFA No. 1618 of 2017

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.09.2016 PASSED IN MVC NO.375/2015 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND M.A.C.T. HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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Heard the learned counsel appearing for the appellant and respondent No.2.

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Being aggrieved by the judgment and award passed in MVC.No.375/2015 by the learned II Additional Senior Civil Judge and MACT, Hassan dated 02.09.2016, the petitioner is before this Court in appeal seeking enhancement of the compensation.

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The petitioner contends that on 03.12.2014 at 8:30 P.M, while he was a pillion rider on the motorcycle, driven by the respondent No.1, met with an accident sustaining the injury of fracture of lateral condoyle of Tibia, tenderness over the pelvis and tenderness over the chest and as a result, he was taken to Janapriya Hospital, Hassan and underwent surgery by spending huge amount. It was contended that he was working as a driver on the lorry, earning Rs.20,000/- per month and due to the

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3 - NC: 2023:KHC:24565 MFA No. 1618 of 2017

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accidental injuries, he has suffered permanent disability and therefore, he is entitled for the just and reasonable compensation from the respondents.

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On issuance of notice, respondent Nos.1 and 2 appeared before the Tribunal and filed objections to the petition.

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The respondent No.1 denied the petition averments and contended that the compensation claimed is exorbitant and if at all the compensation is to be awarded, the liability be fixed upon the respondent No.2.

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Respondent No.2 contended that the terms and conditions of the policy are violated and any liability is subject to due compliance of the terms and conditions of the policy. Interalia , it also denied the age, income and occupation of the petitioner.

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Based on the pleadings of the parties, the Tribunal framed appropriate issues and the petitioner was examined as PW.1 and the Doctor who assessed the disability was examined as PW.2. Exs.P1 to P27 and Exs.C1 to C3 were marked in evidence. No evidence was lead on behalf of the respondents.

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NC: 2023:KHC:24565 MFA No. 1618 of 2017

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After hearing the arguments, the Tribunal awarded a

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sum of Rs.2,98,043/- to the petitioner under following heads:

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PARTICULARS	AMOUNT (IN RS.)
Pain and sufferings	35,000/-
Medical expenses incurred, future medical expenses, attendant, conveyance, nourishing food and other incidental expenses	1,04,363/-
Loss of income during laid-up period	30,000/-
Loss of future income on account of permanent disability	1,03,680/-
Loss of amenities, life comforts and expectancy of life	25,000/-
TOTAL	2,98,043/-

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Learned counsel appearing for the appellant contends

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that though the petitioner had produced the salary certificate showing his income to be Rs.25,000/-, the Tribunal has not believed the same and therefore, an adequate compensation has to be awarded. It is also submitted that the compensation awarded under the remaining heads is also not adequate and proper.

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Per contra , learned counsel for the respondent No.2 submit that the Tribunal is justified in awarding the compensation and there is no need for enhancement of compensation.

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NC: 2023:KHC:24565 MFA No. 1618 of 2017

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The perusal of the available records show that the petitioner claims that he was a driver of the lorry and in support of his contention, he has produced the Salary Certificate as per Ex.P22. Obviously, the petitioner has not proved Ex.P22 as required under law by examining the author of the document i.e., the employer. In the absence of such valid proof in support of Ex.P22, the Tribunal is justified in holding that the notional income has to be considered.

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In view of the above facts and circumstances, the Tribunal had to take notional income that would be applicable for the year 2014. The guidelines issued by the Karnataka State Legal Services Authority for settlement of the disputes before the Lok-Adalat prescribe a notional income of Rs.8,500/- p.m. for the year 2014. In umpteen number of decisions, it has been held that the guidelines issued by the KSLSA are in general conformity with the wages fixed under the Minimum Wages Act and therefore, the notional income of the petitioner is considered at Rs.8,500/- per month.

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PW.2 in his evidence has stated that there is a disability of 28% and the Tribunal has assessed the disability at

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6 - NC: 2023:KHC:24565 MFA No. 1618 of 2017

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9% by taking 1/3^rd of the disability stated by PW.2. It is relevant to note that there is no discussion by the Tribunal in respect of the functional disability sustained by the petitioner. It is to be noted that the physical disability of the petitioner was spoken by PW.2 and it is the functional disability which needs to be assessed by the Tribunal in arriving at a just and reasonable compensation. The petitioner being the driver of a lorry, having sustained the fracture of tibia, which is weight bearing bone has definitely suffered the disability. The injuries are directly affecting the professional efficiency of the petitioner. Under these circumstances, in the considered opinion of this Court, the Tribunal should have considered the functional disability at 11%. In that view, 'future loss of income' is calculated as Rs.8,500/- X 12 X 16 X 11% = Rs.1,79,520/-.

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As a consequence of the notional income being held at Rs.8,500/-, the 'loss of income during the laid up period' is enhanced and Rs.42,500/- (Rs.8,500/- X 5) is awarded under this head.

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The Tribunal has awarded a sum of Rs.35,000/under the head of 'pain and suffering' and there shall be an

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NC: 2023:KHC:24565 MFA No. 1618 of 2017

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enhancement of Rs.5,000/-. Totally Rs.40,000/- is awarded under this head.

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The petitioner had undergone ORIF and accordingly the medical bills were produced by him and the Tribunal has awarded a sum of Rs.1,04,363/- towards 'medical expenses' which is inclusive of the 'future medical expenses' also. The said quantum is proper and correct.

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The compensation awarded under the head of 'loss of amenities in life' do not require any enhancement.

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Thus, the petitioner is entitled for the modified

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compensation under different heads as below:

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PARTICULARS	AMOUNT (IN RS.)
Future loss of income	1,79,520/-
Loss of income during the laid up period	42,500/-
painand suffering	40,000/-
Medical expenses and future medicalexpenses	1,04,363/-
Loss of amenities in life	25,000/-
TOTAL	3,91,383/-
Less awarded by Tribunal	2,98,043/-
Enhancement	93,340/-

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NC: 2023:KHC:24565 MFA No. 1618 of 2017

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Thus, the petitioner is entitled for enhanced

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compensation of Rs.93,340/- with interest and therefore, the appeal deserves to be allowed in part. Hence, the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The impugned judgment and award passed by the Tribunal is modified by awarding a sum of Rs.93,340/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its deposit.

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(iii) The respondent No.2/Insurance company is directed to deposit the entire compensation amount within a period of six weeks from the date of this order.

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(iv) Rest of the order of the Tribunal stands unaltered.

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Sd/JUDGE

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NR/-

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List No.: 1 Sl No.: 88

Sri Prasanna v. Boregowda

Case brief

What is this about?

What did the court decide?

Sri Prasanna v. Boregowda

Case brief

What is this about?

What did the court decide?

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