Partly allowed

Mr Nagarjun Kumar v. Vs M/S New India Assurance Company Ltd.

Karnataka HC22 Nov 2023MFA/2855/2020

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part, enhancing the compensation awarded to an injury victim. The court revised the whole body disability percentage and increased the compensation for loss of amenities, resulting in a total enhanced award while reducing the interest rate to 6% per annum.

What did the court decide?

Appeal allowed in part; compensation enhanced to Rs.5,96,168/- with interest at 6% p.a.; Insurance company directed to deposit within six weeks.

Mr Nagarjun Kumar v Vs M/S New India… — Contract and Commercial Disputes | Karnataka HC (2023)

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1 - NC: 2023:KHC:42047 MFA No. 2855 of 2020

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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. 2855 OF 2020 (MV)

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BETWEEN:

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MR NAGARJUN KUMAR V S/O VENKATAPPA AGED ABOUT 22 YEARS R/AT NO.155, 1ST MAIN 1ST CROSS, OPP. DSR APARTMENTS MAHADEVAPURA BANDE WHITEFIELD ROAD BENGALURU 560 048.

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…APPELLANT

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(BY SRI. GURUDEV PRASAD K T., ADVOCATE)

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AND:

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M/S NEW INDIA ASSURANCE COMPANY LTD., BY ITS MANAGER Digitally signed by THE ESTATE NO.9/2, 2ND FLOOR DHANALAKSHMI MAHALAKSHMI CHAMBERS MURTHY M.G. ROAD, BENGALURU 560 001. Location: High Court of Karnataka 2. MR. RAJA

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MR. RAJA S/O YEDIYAPPA INDLABELE VILLAGE ATTIBEL ROAD, ANEKAL TALUK BANGALORE RURAL DISTRICT-562106.

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…RESPONDENTS

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(BY SMT. HARINI SHIVANANDA., ADVOCATE FOR R1: NOTICE TO R2 IS D/W V/O DATED: 17.04.2023)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 01.06.2019

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2 - NC: 2023:KHC:42047 MFA No. 2855 of 2020

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PASSED IN MVC NO.2255/2018 ON THE FILE OF THE V ADDITIONAL SMALL CAUSES JUDGE AND XXIV ACMM, MEMBER, MACT, MAYO HALL UNIT, 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 01.06.2019 passed by MACT, Bengaluru in MVC No.2255/2018.

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Facts giving rise to the filing of the appeal briefly stated are that on 19.01.2018 at 06.30 a.m., in front of Vegetable Shop, Mahadevapura Bande, Bengaluru City, the claimant was riding a motor cycle bearing Registration No.KA-53-EM-0527, at that time, the driver of the Mahindra Bolero Jeep bearing Registration No.KA-51-P8808 came in a rash and negligent manner, so as to endanger human life and dashed the claimant. As a result

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3 - NC: 2023:KHC:42047 MFA No. 2855 of 2020

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of the aforesaid accident, the claimant fell down and

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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 pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.

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4 - NC: 2023:KHC:42047 MFA No. 2855 of 2020

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The respondent No.2 did not appear before the

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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, Dr.S.A.Somashekara was examined as PW-2 and another witness was examined as PW-3 and got exhibited documents namely Ex.P1 to Ex.P22. On behalf of the respondents, neither examined any witness nor exhibited any document. 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.4,03,000/along with interest at the rate of 9% p.a. and directed the Insurance Company to deposit the compensation amount

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5 - NC: 2023:KHC:42047 MFA No. 2855 of 2020

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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, the claimant has examined the doctor as PW-2. The doctor in his evidence has stated that the claimant has suffered physical impairment to the left lower limb disability of 36% and 18% to whole body. But the Tribunal has taken the whole body disability at 6%, which is on the lower side.

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b) Secondly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 4 days. 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' 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 doctor assessed the whole body disability at 6%, the Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 6%.

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b) Secondly, 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' and other incidental expenses are just and reasonable and it does not call for interference.

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c) Thirdly, in view of the Division Bench decision of this Court in the case of Ms.Joyeeta Bose and others –v-

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Venkateshan.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 19.01.2018 due to rash and negligent driving of the offending vehicle by its driver.

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Due to the accident, the claimant has sustained fracture shaft of left tibia and fibula and other injuries. The doctor, who is an Orthopedics Surgeon at Bowring and Lady Curzon Hospital, has stated in his evidence that the claimant has suffered physical impairment to the left lower limb disability of 36% and 18% to whole body. Therefore, taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate, I am of the opinion that the whole body disability is assessed at 12%. The Tribunal considering the evidence of the claimant, his age and avocation, has rightly assessed the monthly

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8 - NC: 2023:KHC:42047 MFA No. 2855 of 2020

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income of the claimant at Rs.13,000/-. The claimant is aged about 21 years at the time of the accident and multiplier applicable to his age group is ‘18’. Thus, the claimant is entitled for compensation of Rs.3,36,960/- (Rs.13,0001218*12%) on account of 'loss of future income'.

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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 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 'loss of amenities' from Rs.10,000/- to Rs.35,000/- .

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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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13. Thus, the claimant is entitled to the following

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compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	75,000	75,000
Medical expenses	80,208	80,208
Food, nourishment, conveyance and attendant charges	20,000	20,000
Loss of income during laid up period	14,000	14,000
Loss of amenities	10,000	35,000
Loss of future income	1,68,480	3,36,960
Future surgery	35,000	35,000
Total	4,02,688	5,96,168
The Tribunal has rounded o Rs.4,02,688/- to Rs.4,03,0	f the compensat 00	ion from

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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.

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10 - NC: 2023:KHC:42047 MFA No. 2855 of 2020

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c) The claimant is entitled to a total compensation of

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Rs.5,96,168/- .

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d) In view of judgment of the Division Bench 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 the compensation amount along with 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.

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f) In view of the order dated 17.04.2023 passed by this Court, the claimant is not entitled for interest on the enhanced compensation for the delayed period of 107 days in filing the appeal.

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Sd/JUDGE

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List No.: 3 Sl No.: 46

Mr Nagarjun Kumar v. Vs M/S New India Assurance Company Ltd.

Case brief

What is this about?

What did the court decide?

Mr Nagarjun Kumar v. Vs M/S New India Assurance Company Ltd.

Case brief

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