Partly allowed

Shri Kallesha v. United India Insurance Co. Ltd.

Karnataka HC9 Jun 2023MFA/27/2017

Case brief

AI extract

What is this about?

The High Court allowed both miscellaneous first appeals partly, modifying the Tribunal's award. The Court reduced loss of future earnings to 15% of total, adjusted calculation parameters, and altered heads for pain/suffering and amenities. Interest was corrected to 6%. Final compensation fixed at Rs.3,72,200.

What did the court decide?

Compensation reduced to Rs.3,72,200 at 6% interest; loss of future earnings capped at 15% of total income.

Shri Kallesha Vs United India Insurance Co. Ltd. — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:19819 MFA No. 27/2017 C/w MFA No. 5348/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL No. 27/2017 (MV-I) C/w MISCELLANEOUS FIRST APPEAL No. 5348/2016 (MV-I)

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M.F.A. No.27/2017:

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BETWEEN:

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SHRI KALLESHA S/O KRISHNAPPA AGED ABOUT 37 YEARS R/AT CHANNAKESHAVAPURA HIREKATTIGENAHALLI POST

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KAIWARA HOBLI, CHINTAMANI TALUK …APPELLANT

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(BY SRI LOKESH MURTHY M, ADVOCATE [ABSENT])

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AND:

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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UNITED INDIA INSURANCE CO. LTD., P.B. NO.16, 1^ST FLOOR, SBLT BLDG. POLYTECHNIC ROAD, CHINTAMANI - 563 125 REP. BY ITS BRANCH MANAGER

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SHRI B C ANJANEYAREDDY S/O LATE BACHAPPA AGED ABOUT 44 YEARS R/AT BYALAHALLI VILLAGE HIREKATTIGENAHALLI POST KAIWARA HOBLI, CHINTAMANI TALUK

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SHRI K M VENKATAREDDY S/O SHRI MUNIRAMAPPA AGED ABOUT 40 YEARS R/AT KURUMAKALAHALLI VILLAGE

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TADIGOLLU POST, SRINIVASAPURA TALUK …RESPONDENTS

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(BY SRI A N KRISHNASWAMY, ADVOCATE FOR R1;

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SRI V.ANAND, ADVOCATE FOR R2 & R3 [ABSENT])

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NC: 2023:KHC:19819 MFA No. 27/2017 C/w MFA No. 5348/2016

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 15.12.2015 PASSED BY THE SENIOR CIVIL JUDGE, & JMFC, MACT, CHINTHAMANI IN MVC NO.21/2012.

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M.F.A.No.5348/2016:

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BETWEEN:

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UNITED INDIA INSURANCE CO. LTD., P.B. NO.16, 1^ST FLOOR, SBLT BLDG. POLYTECHNIC ROAD CHINTHAMANI - 563 125 NOW REP. BY ITS REGIONAL MANAGER UNITED INDIA INSURANCE CO. LTD. REGIONAL OFFICE, 5^TH & 6^TH FLOOR KRISHI BHAVAN, NRUPATHUNGA ROAD BENGALURU – 560 001

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…APPELLANT

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((BY SRI A.N.KRISHNASWAMY, ADVOCATE)

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AND:

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SHRI KALLESHA S/O KRISHNAPPA AGED ABOUT 36 YEARS R/AT CHANNAKESHAVAPURA KAIWARA HOBLI CHINTAMANI TALUK – 563 125

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B C ANJANEYAREDDY S/O LATE BACHAPPA AGED ABOUT 43 YEARS R/AT BYALAHALLI VILLAGE KAIWARA HOBLI CHINTHAMANI TALUK – 563 125

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K.M.VENKATAREDDY S/O MUNIRAMAPPA NOW AGED ABOUT 39 YEARS R/AT KURUMAKALAHALLI VILLAGE TADIGOLLU POST SRINIVASAPURA TALUK KOLAR DISTRICT – 563 135 …RESPONDENTS

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(BY SRI LOKESH MURTHY M, ADVOCATE FOR R1 [ABSENT]; SRI V.ANAND, ADVOCATE FOR R2 & R3 [ABSENT])

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT

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NC: 2023:KHC:19819 MFA No. 27/2017 C/w MFA No. 5348/2016

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AND AWARD DATED 15.12.2015 PASSED BY THE SENIOR CIVIL JUDGE, & JMFC, MACT, CHINTHAMANI IN MVC NO.21/2012 AWARDING COMPENSATION OF RS.12,60,463/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE AMOUNT IS DEPOSITED.

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THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR FINAL HEARING, THIS DAY, K.S.MUDAGAL J. , DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging the award in MVC No.21/2012 on the file of the Senior Civil Judge and MACT, Chinthamani the insurer has preferred MFA Nos.5348/2016 and the claimant has preferred MFA No.27/2017. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the Tribunal.

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On 19.09.2021 at about 7.30 p.m. when the claimant was travelling along with his children on motorcycle bearing registration No.KA.40-L-6318 near Sooladevanahalli gate of Chinnasandra-Kyalanoor Road within the limits of Chinthamani rural Police Station the Tractor and Trailer bearing registration Nos.KA.07-T-6290/KA.07-T-6291 hit the said motorcycle. Due to the accident, claimant and his children suffered injuries.

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Regarding the incident, one Manjunath filed complaint before Chinthamani rural Police Station. Based on which FIR Ex.P1 was registered in Crime No.263/2011 against

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NC: 2023:KHC:19819 MFA No. 27/2017 C/w MFA No. 5348/2016

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the driver of the Tractor and Trailer. There is no dispute that on investigation the charge sheet was filed against the driver of the said Tractor and Trailer. At the relevant time, respondent Nos.1 to 3 were the registered owner, driver and insurer respectively of the Tractor and Trailer.

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Claimant filed MVC No.21/2012 before the Tribunal claiming that the accident occurred due to actionable negligence on the part of the driver of the Tractor and Trailer. He further claimed that in the accident he suffered grievous injuries which led to his permanent physical disability and loss of his earning capacity. Thus he claimed compensation of Rs.15,00,000/- from the respondents.

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Respondents contested the petition denying the occurrence of the accident due to actionable negligence of the driver of the Tractor and Trailer. They contended that the claimant was solely responsible for the accident. They further disputed the age, occupation and income of the claimant and their liability to pay the compensation.

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To substantiate his claim claimant got examined himself as PW.1, the Doctor who treated him as PW.2. On his behalf Exs.P1 to P14 were marked. No evidence was adduced on behalf of the respondents.

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NC: 2023:KHC:19819 MFA No. 27/2017 C/w MFA No. 5348/2016

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The Tribunal on hearing both side by the impugned award held that the accident occurred due to actionable negligence on the part of the driver of the Tractor and Trailer. Further the Tribunal relying on the evidence of PW.2 the Doctor held that the claimant suffered 15% permanent physical disability to the whole body. The Tribunal considered his income notionally at Rs.6,000/- per month, applied 16 multiplier and awarded compensation of Rs.11,52,000/- on the head of loss of further earning. The Tribunal in all awarded compensation of Rs.12,60,463/- on different heads as per the table below:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Towards injury, pain and sufferings	25,000/-
2.	Towards medical expenses	27,463/-
3.	Towards conveyance, nourishing food and attendant charges	25,000/-
4.	Towards loss of income during the period of treatment	6,000/-
5.	Towards loss of amenities	25,000/-
6.	Towards loss of future earnings	11,52,000/-
	Total	12,60,463/-

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Sri A.N.Krishna Swamy, learned Counsel for the

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insurer submits that the Tribunal erred in considering the permanent physical disability of the claimant at 15%. He further submits that the compensation awarded on all the heads is also on the higher side.

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NC: 2023:KHC:19819 MFA No. 27/2017 C/w MFA No. 5348/2016

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Learned Counsel for the claimant remained absent.

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Considering the submissions of learned Counsel for

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the insurer and on examining the materials on records, the question that arises for consideration is “ whether the compensation awarded to the claimant under the impugned award is just and reasonable?”.

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Analysis

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The occurrence of the accident and filing of the charge sheet against respondent No.2 that is the driver of the tractor and Trailer is not in dispute. To show that the claimant himself was tortfeaser or responsible for the accident, the respondents did not choose to examine respondent No.2. Therefore the finding of the Tribunal with regard to actionable negligence on the part of the driver of the tractor and trailer in causing the accident does not warrant any interference.

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As per the medical records of the claimant, he was aged 30 years. In the claim petition, he himself claimed that he was aged 32 years. Therefore the Tribunal rightly considered his age as 32 years. Though the claimant contended that he was earning Rs.30,000/- per month by agricultural, milk vending and sericulture work, there was no proof of his actual

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NC: 2023:KHC:19819 MFA No. 27/2017 C/w MFA No. 5348/2016

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income. Therefore the Tribunal was justified in considering his income notionally.

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The accident occurred in the year 2011. Considering the age of the claimant, his occupation, prevailing wage rates and cost of living during the relevant time, the Tribunal should have considered his income notionally at Rs.6,500/- per month.

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The claimant’s own witness PW.2 deposed that his permanent physical disability was 15% to the whole body. Therefore it is not open to the claimant to contend that the Tribunal should have considered the same at 100%. The applicable multiplier was 16. Therefore the compensation payable on the head of loss of earning capacity/future earnings comes to Rs.1,87,200/- (Rs.6,500/- x 15/100 x 12 x 16). Though the Tribunal considered permanent physical disability at 15%, while calculating compensation, did not restrict loss of future earnings to 15% of his whole earnings. That needs to be modified.

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As per the evidence of PW.2, Ex.P6 wound certificate, Exs.P8 and P14 discharge summaries the claimant suffered the following injuries:

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(i) Cut lacerated wound over right side of the face;

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NC: 2023:KHC:19819 MFA No. 27/2017 C/w MFA No. 5348/2016

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(ii) Fracture of right shoulder joint humerus.

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Those documents and the evidence of PW.2 further show that for the said injuries, the claimant was treated in R.L.Jalappa Hospital on the first occasion between 20.09.2011 and 11.10.2011. He underwent surgery. Again he was treated as indoor patient in the said hospital between 07.12.2011 and 19.12.2011 for implant removal.

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Considering the medical evidence, compensation of Rs.25,000/- awarded on the head of pain and sufferings is on the lower side. The Tribunal should have awarded Rs.50,000/on the said head. The compensation on the head of medical expenses was awarded based on the records produced by the claimant himself. Therefore that needs to be maintained.

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Having regard to the nature of the injury and the period of hospitalization, the claimant could not have attended to his routine work atleast for a period of 5 months. Therefore the compensation payable on the head of loss of income during laid up period comes to Rs.6,500 x 5 = Rs.32,500/-.

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Having regard to the period of hospitalization and

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cost of living during the said period, distance between the village of the claimant and the hospital, the compensation of

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NC: 2023:KHC:19819 MFA No. 27/2017 C/w MFA No. 5348/2016

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Rs.25,000/- awarded on the head of diet, conveyance,

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attendant charges is reasonable.

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Having regard to the period of hospitalization, the

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nature of the injuries and disability spoken by PW.2, the compensation awarded on the head of loss of amenities needs to be enhanced to Rs.50,000/- from Rs.25,000/-. Therefore

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just compensation payable is as follows:

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Sl. No.	Particulars	Compensatio n amount in Rs.
1.	Loss of future earnings	1,87,200/-
2.	Medical expenses	27,463/-
3.	Pain and sufferings	50,000/-
4.	Loss of amenities	50,000/-
5.	Diet, conveyance and Attendant charges	25,000/-
6.	Loss of income during laid up period	32,500/-
	Total	3,72,163/- rounded to 3,72,200/-

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The Tribunal without assigning any reason has awarded interest at 9% per annum. The case was not involving liability on the contractual basis. Having regard to Section 34 of CPC, the Tribunal should have awarded interest at 6% per annum. For the aforesaid reasons, both appeals deserve to be allowed in part. Hence the following:

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ORDER

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The appeals are partly allowed.

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10 -

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NC: 2023:KHC:19819 MFA No. 27/2017 C/w MFA No. 5348/2016

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The award of the Tribunal is modified as follows:

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(i) The claimant is entitled to compensation of

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Rs.3,72,200/- with interest thereon at 6% per annum from the date of the petition till the date of realization.

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(ii) Respondent No.3/Insurer shall deposit the said amount after adjusting the amount already deposited if any, before the Tribunal within four weeks from the date of receipt of copy of this order. If the amount deposited by the Insurer is in excess of the award amount, the same shall be refunded to the insurer.

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(iii) The Tribunal shall release the said amount to the

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claimant.

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(iv) Registry shall transmit the amount in deposit if any and the trial Court records to the Tribunal forthwith.

Sd/JUDGE

Sd/-

JUDGE

PKN,KSR

List No.: 1 Sl No.: 28

Shri Kallesha v. United India Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Shri Kallesha v. United India Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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