Partly allowed

The New India Assurance Co. Ltd. v. T. John Rohit

Karnataka HC16 Nov 2023MFA/2885/2017

Case brief

AI extract

What is this about?

This judgment allows the motor accident claim petition partially. The High Court enhanced the compensation from Rs. 28,96,000 to Rs. 30,46,000 for a minor claimant with a limb amputation. The interest rate was reduced from 9% to 6% p.a.

What did the court decide?

Compensation enhanced to Rs. 30,46,000; interest fixed at 6% p.a.; order against insurance company to deposit the amount within eight weeks.

The New India Assurance Co. Ltd. Vs T. John Rohit — Insurance | Karnataka HC (2023)

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NC: 2023:KHC:41499 MFA No. 2885 of 2017 C/W MFA.CROB No. 128 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 2885 OF 2017 (MV-I)

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C/W

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MFA CROSS OBJECTION NO. 128 OF 2017 (MV-I)

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IN MFA NO. 2885/2017

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BETWEEN:

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THE NEW INDIA ASSURANCE CO. LTD., R.O.P. KALINGA RAO ROAD, THROUGH MOTOR THIRD PARTY CLAIMS HUB, M.G. ROAD, BANGALORE - 560 001, BY DULY CONSTITUTED ATORNEY.

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…APPELLANT

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(BY SRI. C.R. RAVISHANKAR, ADVOCATE)

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AND:

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Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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T. JOHN ROHIT, S/O CHINNAPPA THOMAS, AGED ABOUT 18 YEARS, R/AT NO.45, KAVERI LAYOUT, HENNUR CROSS, KALYAN NAGAR POST, BANGALORE - 560 043.

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SANDEEP, S/O KUMAR, SINCE DEAD BY LRS C.A. KUMAR S/O CHOWRI REDDY

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NC: 2023:KHC:41499 MFA No. 2885 of 2017 C/W MFA.CROB No. 128 of 2017

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AGED 56 YEARS R/AT NO.89, CHALAKERE, KALYAN NAGAR POST, BANGALORE - 560 043.

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…RESPONDENTS

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(BY SRI. K. T. GURUDEVA PRASAD, ADVOCATE FOR R1; R2 - SERVED AND UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.12.2016 PASSED IN MVC NO.357/2015 ON THE FILE OF THE XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU, AWARDING COMPENSATION OF RS. 28,96,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.

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IN MFA.CROB NO.128/2017

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BETWEEN:

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T. JOHN ROHIT, S/O CHINNAPPA THOMAS, AGED ABOUT 17 YEARS, RESIDING AT NO.45, CAUVERY LAY-OUT, HENNUR CROSS, KALYAN NAGAR POST, BANGALORE - 560 085,

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SINCE THE CROSS OBJECTOR IS A MINOR, REPRESENTED BY HIS NATURAL GUARDIAN FATHER - SRI. CHINNAPPA THOMAS.

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…CROSS OBJECTOR

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

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3 - NC: 2023:KHC:41499 MFA No. 2885 of 2017 C/W MFA.CROB No. 128 of 2017

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AND:

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THE NEW INDIA ASSURANCE CO. LTD., R.O.P. KALINGA RAO ROAD, THROUGH MOTOR THIRD PARTY CLAIMS HUB, M.G.ROAD, BANGALORE-1, REPRESENTED BY ITS MANAGER.

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SANDEEP, S/O KUMAR, SINCE DEAD, BY LEGAL REPRESENTATIVE C. A. KUMAR, S/O CHOWRI REDDY, AGED ABOUAT 56 YEARS, RESIDING AT NO.89, CHALAKERE, KALYAN NAGAR POST, BANGALORE - 560 043.

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…RESPONDENTS

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(VIDE ORDER DATED 20.06.2019 NOTICE TO R2 IS DISPENSED WITH)

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THIS MFA.CROB IN MFA.NO.2885/2017 FILED U/O 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED: 26.12.2016 PASSED IN MVC NO.357/2015 ON THE FILE OF THE XVI ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA APPEAL AND MFA CROB COMING ON FOR BEING SPOKEN TO, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Aggrieved by the award passed in MVC No.357/2015 dated 26.12.2016 by the XVI Additional Judge, Court of Small Causes and MACT, Bangalore, the insurance company has preferred the appeal in MFA No.2885/2017. In that, cross-objections in MFA Crob No.128/2017 is filed by the claimant seeking enhancement of compensation. The claim petition was filed seeking compensation of an amount of Rs.30,00,000/- for the injuries sustained by the claimant in the accident.

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The claimant is 16 years old and he was a student

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as on the date of the accident. Because of the accident, he sustained the following injuries:

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Multiple abrasion over the face with left peri

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orbital swelling and discoloration of left eye lid

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Abrasion over the right clavicle

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CLW over the left upper lip

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Open wound with deformity of right arm

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Splint in situ of left upper limb

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6 Abrasion over the chest

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Right clavicular fracture

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X-ray and CT scans shown :

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Fracture of left humerus,

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Fracture of right femur,

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Fracture of right clavicle,

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Vascular insufficiency in right upper limb.

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Amputation of right upper limb.

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Because of the said injuries, his right upper limb has been amputated. There is small stump about 7 to 8 cm in the upper limb. Claimant has also suffered fracture injury to right femur. He was hospitalized for a period of 18 days. As per the evidence of the doctor, he required a prosthesis, which cost about an amount of Rs.2,50,000/and it may have to be replaced every five years.

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As per the evidence of the doctor, the claimant

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sustained 90% disability, however, the Court below had considered 80% disability to the whole body and

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considered the income at Rs.10,000/- per month and granted an amount of Rs.75,000/- towards pain and suffering, an amount of Rs.7,28,000/- towards medical expenses, Rs.30,000/-, Rs.10,000/-, Rs.17,28,000/-, Rs.25,000/-, Rs.1,05,000/-, Rs.25,000, Rs.25,000/-,

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Rs.20,000/- and Rs.1,00,000/-, conveyance charges, loss of future income due to disability, loss of amenities, for Prosthesis, loss of marriage prospectus, set back in studies, loss of income and inconvenience to his parents and future medical expenses respectively. Altogether, the

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Court below had granted compensation of an amount of Rs.28,96,000/-.

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In the cross-objection, it is stated by the learned counsel for the claimant that for the injuries and amputation sustained by the claimant, under the head of pain and suffering, granting an amount of Rs.75,000/- is on the lower side. He submits that the Court below, under

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the head loss of future income, had not granted a reasonable amount. He further submits that under the

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NC: 2023:KHC:41499 MFA No. 2885 of 2017 C/W MFA.CROB No. 128 of 2017

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head of loss of amenities, only an amount of Rs.25,000/has been granted, which is on the lower side. For prosthesis, as per the evidence of the doctor, it requires Rs.2,50,000/-, however, the Court has granted an amount of Rs.1,05,000/-. Even under the head loss of marriage prospects, granting an amount of Rs.25,000/- is on the lower side. It is submitted that the compensation of an amount of Rs.28,96,000/- granted by the Tribunal is not just and reasonable.

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Learned counsel appearing for the Insurance Company submits that the doctor’s evidence is that the claimant was suffering from permanent disability of 15.3% to his right lower limb and overall disability of 35.1% to whole body. The Court below had taken 80% disability which is on the higher side. He further submits that when the Court below had already granted compensation under the head of loss of future income, again the claimant is not entitled for compensation under the head of disability. It is submitted that even for prosthesis also, the doctor had

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8 - NC: 2023:KHC:41499 MFA No. 2885 of 2017 C/W MFA.CROB No. 128 of 2017

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stated that it would cost an amount of Rs.2,50,000/- and no bills were marked and the Court below failed to consider the said aspect and granted an amount of Rs.1,05,000/-. It is submitted that under the head of set back in studies also without any evidence, the Court below had granted an amount of Rs.25,000/- which is without any basis. Learned counsel submits that when the doctor had stated that the future medical expenses would be an amount of Rs.60,000/- the Court below had granted an amount of Rs.1,00,000/-. He further submits that the compensation that was awarded by the Tribunal is on the higher side. Further, the interest was 9% which is contrary to the settled law.

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In response to that, learned counsel for claimant submits that apart from stating that the disability is 35.1%

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to the whole body the doctor stated that since the available stump is devoid of neurological and muscular power, functional disability of right upper limb is 100%. Learned counsel submits that while assessing the loss of

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9 - NC: 2023:KHC:41499 MFA No. 2885 of 2017 C/W MFA.CROB No. 128 of 2017

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future income, the Court below had to look at the functional disability. When the doctor has opined that it is 100%, the Court below had only taken 80%. It is further submitted that as far as the prosthesis is concerned, the doctor had given the evidence stating that it requires an amount of Rs.2,50,000/- and every 5 years it has to be replaced and granting an amount of Rs.1,05,000/- is on the lower side.

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Having heard the learned counsel on either side, perused the entire material on record. In this case, the upper limb has been amputated, along with the fact that the claimant has suffered several injuries. Therefore, under the head of pain and suffering , this Court is inclined to grant an amount of Rs.1,00,000/- . Insofar as medical expenses, nourishment and attendant charges and

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conveyance charges are concerned, the Tribunal had granted an amount of Rs.7,28,000/-, Rs.30,000/- and Rs.10,000/- respectively, which are reasonable and this Court is not inclined to interfere with the same.

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10 - NC: 2023:KHC:41499 MFA No. 2885 of 2017 C/W MFA.CROB No. 128 of 2017

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Then coming to the head of loss of future

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income, this Court is not able to appreciate the contention of learned counsel appearing for the Insurance Company. The Court below had rightly considered 80% and granted compensation. The Court below had considered the income at Rs.10,000/- per month and granted an amount of Rs.17,28,000/- towards loss of future income to the claimant, who is a student and 16 years old. Considering the same, this Court is not inclined to enhance the said amount, which is reasonable. The Court below, having granted the compensation of an amount of Rs.20,000/towards loss of income and amenities, also granted a compensation of an amount of Rs.25,000/- under the head of disability, which is not correct and this Court is not inclined to grant any compensation under the head of disability. When it comes to loss of amenities , this Court is inclined to grant an amount of Rs.60,000/- . When it comes to prosthesis, the doctor has opined Rs.2,50,000/is required and it has to be changed every five years. This

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NC: 2023:KHC:41499 MFA No. 2885 of 2017 C/W MFA.CROB No. 128 of 2017

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Court is inclined to grant an amount of Rs.2,00,000/- towards prosthesis considering the evidence of the doctor.

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Under the head of setback in studies, as rightly pointed out by the learned counsel for the Insurance Company there is no evidence and in fact it is stated that he continued with the studies. Hence, the claimant is not entitled for compensation under the head of set back and studies. The Court below had granted compensation of an amount of Rs.20,000/- towards loss of income and inconvenience to parents and this Court finds no reason to enhance the same. Even for future medical expenses, the Court below had granted an amount of Rs.1,00,000/-, which is a reasonable compensation. When it comes to the loss of marriage prospects, only an amount of Rs.25,000/is granted. Considering the age of the claimant as 16 years and the amputation, this Court is inclined to grant an amount of Rs.1,00,000/- under the head of loss of

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marriage prospects .

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In the light of the law laid down by the Hon'ble Supreme Court in the case of V.MEKALA vs. M. MALATHI AND ANOTHER¹ , the claimant is entitled for an amount of Rs.10,000/- towards legal expenses . All together, the claimant is entitled for compensation of an amount of Rs.30,46,000/- .

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The claimant is entitled for compensation under

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the following heads:

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	Heads		Co	mpensation Awarded
1.	Pain and Sufferings	:	Rs.	1,00,000/-
2.	Medical expenses	:	Rs.	7,28,000/-
3.	Nourishment, attendant and transport	:	Rs.	40,000/-
4.	Loss of future income	:	Rs.	17,28,000/-
5.	Loss of amenities	:	Rs.	60,000/-
6.	Prosthesis	:	Rs.	2,00,000/-
7.	Loss of income and inconvenience to parents	:	Rs.	20,000/-
8.	Future medical expenses	:	Rs.	60,000/-
9.	Loss of marriage prospectus	:	Rs.	1,00,000/-

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1 (2014) 11 SCC 178

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NC: 2023:KHC:41499 MFA No. 2885 of 2017 C/W MFA.CROB No. 128 of 2017

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10.	Legal Expenses	:	Rs.	10,000/-
	TOTAL	:	Rs.	30,46,000/-

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Accordingly, the appeal of the Insurance

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Company is allowed-in-part by reducing the interest from 9% to 6% and the cross-objections filed by the claimant is allowed-in-part enhancing the compensation from an amount of Rs.28,96,000/- to Rs.30,46,000/- at 6% interest setting aside the award passed in MVC No.357/2015 dated 26.12.2016.

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i. The enhanced amount shall carry interest at 6% p.a. from the date of petition till the date of realization.

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ii. The amount in deposit shall be forthwith transmitted to the Court below.

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iii. The respondent - insurance company shall deposit the amount within a period of eight weeks from the date of receipt of copy of the

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judgment. On such deposit, the claimant is entitled to withdraw the entire amount without furnishing any security.

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iv. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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v. No costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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MEG

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List No.: 1 Sl No.: 1 CT: BHK

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SD/JUDGE

The New India Assurance Co. Ltd. v. T. John Rohit

Case brief

What is this about?

What did the court decide?

The New India Assurance Co. Ltd. v. T. John Rohit

Case brief

What is this about?

What did the court decide?

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