Partly allowed

Smt. Gangamma v. Reliance General Insurance Company Ltd.

Karnataka HC8 Nov 2023MFA/2232/2021

Case brief

AI extract

What is this about?

In a first appeal under the Motor Vehicles Act, the High Court enhanced compensation for an injured claimant. The Court found evidence supported a higher notional income and revised disability assessment, ordering the insurer to deposit revised compensation including enhanced amounts for pain, amenities, and future expenses.

What did the court decide?

Total compensation enhanced to Rs. 4,09,400/- to be deposited by the Insurance Company with interest at 6% p.a.

Smt. Gangamma Vs Reliance General Insurance… — Execution and Attachment | Karnataka HC (2023)

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1 - NC: 2023:KHC:39849 MFA No. 2232 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH 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. 2232 OF 2021 (MV)

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BETWEEN:

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SMT. GANGAMMA W/O BODASWAMY AGED ABOUT 52 YEARS R/AT NO.30, 8TH CROSS SOMESHWARNAGAR JAYANAGAR IST BLOCK BANGALURU-560011

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…APPELLANT

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(BY SRI. GIRIMALLAIAH., ADVOCATE)

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AND:

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Digitally signed by DHANALAKSHMI MURTHY Location: High Court of Karnataka

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RELIANCE GENERAL INSURANCE COMPANY LTD., BRANCH OFFICE EAST WING, 5TH FLOOR NO.28, CENTENARY BUILDING M G ROAD, BENGALURU-560001 BY ITS MANAGER.

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SRI LOKESH B

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S/O BABU MAJOR 4TH WARD, VINAYAKANAGARA NEW LOCATION BENGALURU-561203

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…RESPONDENTS

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(BY SRI. D.VIJAYAKUMAR., ADVOCATE FOR R1: NOTICE TO R2 IS DISPENSED WITH V/O DATED: 08.11.2023)

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2 - NC: 2023:KHC:39849 MFA No. 2232 of 2021

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:04.01.2021 PASSED IN MVC NO.5574/2019 ON THE FILE OF THE VII ADDITIONAL SMALL CAUSE JUDGE AND ACMM, MEMBER, MACT-3, BENGALURU, 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 Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant being aggrieved by the judgment dated 04.01.2021 passed by MACT, Bengaluru in MVC No.5574/2019.

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Facts giving rise to the filing of the appeal briefly stated are that on 01.07.2019 at about 11.30 a.m., the claimant was traveling in the Car bearing Registration No.KA-50-A-8224 and while so proceeding near Chowdeshwari Temple, Bisle Village, Hettur Hobli, Sakaleshpura Taluk, Hassan District, due to over speed,

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3 - NC: 2023:KHC:39849 MFA No. 2232 of 2021

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the driver lost control over the vehicle, went on wrong side of the road and dashed against the Zoom Car bearing Registration No.KA-03-AE-6862 which was coming from opposite direction on the correct side of the road. 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.1 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. The age, avocation and income of the claimant and the medical expenses are denied. It was further

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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.2 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 and Dr. Prakashappa T. H. was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P13. On behalf of the respondents, neither examined any witnesses nor exhibited any documents. 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 result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.2,79,400/-

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5 - NC: 2023:KHC:39849 MFA No. 2232 of 2021

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along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest (excluding the interest for future medical expenses). 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 she was doing coolie work and earning Rs.15,000/- per month, but the Tribunal has taken the notional income as merely as Rs.9,000/- p.m.

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b) Secondly, the claimant has examined the doctor as PW-2. The doctor in his evidence has stated that the claimant has suffered disability of 19% to whole body. But the Tribunal has taken the whole body disability at 10%, which is on the lower side.

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c) Lastly, due to the accident, the claimant has sustained grievous injuries. She was treated as inpatient for a period of 18 days. Even after discharge from the

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hospital, she was not in a position to discharge her regular work. She 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 she was earning Rs.15,000/- per month, she has not produced any documents to establish her income. In the absence of proof of income, the Tribunal has rightly assessed the income of the claimant notionally.

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b) Secondly, the claimant has examined the doctor as PW-2. The doctor without assessing the limb disability has assessed the whole body disability as 19%. The Tribunal considering the injuries sustained by the claimant,

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evidence of the doctor and since the fractures are completely united, has rightly assessed the whole body disability at 10%.

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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

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the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are just and reasonable and it does not call for interference. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.

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It is not in dispute that the claimant has sustained

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injuries in the road traffic accident occurred on 01.07.2019 due to rash and negligent driving of the offending vehicle by its driver.

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8 - NC: 2023:KHC:39849 MFA No. 2232 of 2021

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The claimant claims that he was earning Rs.15,000/per month. She has not produced any documents to prove her 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 2019, the notional income has to be taken at Rs.14,000/- p.m.

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As per wound certificate, the claimant has sustained tenderness over right hip region, X-ray shows fracture right inter trochanteric femur. The doctor in his evidence has stated that the claimant has suffered disability of 19% to whole body. Therefore, taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate, the Tribunal has rightly taken the whole body disability at 10%. The claimant is aged about 50 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.2,18,400/- (Rs.14,0001213*10%) on account of 'loss of future income'.

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9 - NC: 2023:KHC:39849 MFA No. 2232 of 2021

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The nature of injuries suggests that the claimant must have been under rest and treatment for a period of 3 months. Therefore, the claimant is entitled for compensation of Rs.42,000/- (Rs.14,000 * 3 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. She was treated as inpatient for more than 18 days in the 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 'pain and sufferings' from Rs.25,000/- to Rs.40,000/- and under the head of 'loss of amenities' from Rs.20,000/to Rs.35,000/- .

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Due to the accident, the claimant has undergone surgery. As per the evidence of the doctor, there was a

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internal fixation and he has deposed that the claimant requires about Rs.20,000/- for removal of implants. Considering the nature of injuries and evidence of doctor, I am inclined to enhance the compensation awarded by the Tribunal under the head of ‘future medical expenses’ from

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Rs.10,000/- to Rs.20,000/-.

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Considering the nature of injuries, the compensation

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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 (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	25,000	40,000
Medical expenses	43,976	43,976
Food, nourishment, conveyance and attendant charges	10,000	10,000

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11 - NC: 2023:KHC:39849 MFA No. 2232 of 2021

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Loss of income during laid up period	30,000	42,000
Loss of amenities	20,000	35,000
Loss of future income	1,40,400	2,18,400
Future medical expenses	10,000	20,000
Total	2,79,376	4,09,376
Rounded off	2,79,400	4,09,400

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17. In the result, the following order is passed:

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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. c) The claimant is entitled to a total compensation of Rs.4,09,400/-.

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d) The Insurance Company is directed to deposit the compensation amount along with interest @ 6% p.a. 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 for the compensation

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awarded under the head of 'future medical

expenses'.

Sd/JUDGE

List No.: 2 Sl No.: 40

Smt. Gangamma v. Reliance General Insurance Company Ltd.

Case brief

What is this about?

What did the court decide?

Smt. Gangamma v. Reliance General Insurance Company Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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