Partly allowed

The Manager v. Surendra N

Karnataka HC9 Jun 2023MFA/5499/2012

Case brief

AI extract

What is this about?

The High Court in an appeal by an Insurance Company quashed the lower tribunal's award of Rs. 2,40,748/- due to excessive compensation for future loss of income. The court reduced the disability from 50% to 8% and reassessed future loss of income to Rs. 81,600/-, modifying the total compensation to Rs. 2,03,008/-.

What did the court decide?

The appeal allowed in part; total compensation reduced to Rs. 2,03,008/- with future loss of income reassessed at Rs. 81,600/-.

The Manager Vs Surendra N — Banking and Recovery | Karnataka HC (2023)

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1 - NC: 2023:KHC:19822 MFA No. 5499 of 2012

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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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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.5499 OF 2012 (MV-I)

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BETWEEN:

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THE MANAGER NATIONAL INSURANCE CO, LTD., B.H. ROAD, SHIMOGA. BY NATIONAL INSURANCE CO, LTD., REGIONAL OFFICE, NO.144, SUBHARAM COMPLEX, M. G. ROAD, BANGALORE – 560 001 BY ITS MANAGER

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…APPELLANT (BY SRI. O.MAHESH, ADVOCATE THROUGH VIDEO CONFERENCE)

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AND:

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Digitally signed by PAVITHRA B Location: HIGH COURT OF KARNATAKA

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SURENDRA. N, S/O. LATE NAGARJAPPA. S, AGED ABOUT 28 YEARS, GOLDSMITH, R/O 5^TH CROSS, GANDHI BAZAAR, SHIMOGA – 577 201.

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KESHVAMURTHY S/O SUBBARYA BHAT, MAJOR, R/O J.C ROAD, SAGAR, SHIMOGA DISTRICT – 577 201.

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2 - NC: 2023:KHC:19822 MFA No. 5499 of 2012

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3. VASIM

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S/O KHALKA SAB, AGED ABOUT 27 YEARS, R/O ULLUR VILLAGE, SAGAR TALUK,

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SHIMOGA DISTRICT – 577 201.

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…RESPONDENTS (BY SRI.H.S. PRASHANTH ADVOCATE FOR R1; V/O DATED 26.07.2012, NOTICE TO R2& R3 IS DISPENSED)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 23.2.2012 PASSED IN MVC NO. 668/2010 ON THE FILE OF DISTRICT JUDGE, ADDITIONAL MACT-II, I FAST TRACK COURT, SHIMOGA, AWARDING A COMPENSATION OF RS. 2,40,748/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT EXCEPT ON FUTURE MEDICAL EXPENSES OF RS.10,000/-.

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

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JUDGMENT

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The present appeal is filed by the appellant-

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Insurance Company challenging the judgment and award dated 23.02.2012 in MVC.No.668/2010 passed by the District Judge, Addl. MACT II, I Fast Track Court, Shimoga,

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on the ground that the quantum of compensation awarded is excessive one.

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3 - NC: 2023:KHC:19822 MFA No. 5499 of 2012

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The factum of accident is not in dispute.

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Heard the arguments from both sides and

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perused the records.

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Learned counsel for the appellant-

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Insurance Company submitted that

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respondent No.1-claimant was examined as P.W.2 on 29.08.2011 and it is stated in the judgment that Ex.P.139

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– disability certificate is marked, but the said disability certificate is dated 30.12.2011. Therefore, expressed exclamation that as to how disability certificate dated 30.12.2011 has come into light when much prior to that on 29.08.2011, the claimant was examined. Therefore, submitted that insofar as nature of injuries sustained and disability is concerned, the claimant has played fraud. Therefore, prays to reduce the quantum of compensation.

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NC: 2023:KHC:19822 MFA No. 5499 of 2012

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On the other hand, learned counsel for respondent No.1-claimant justified the judgment and award passed by the Tribunal.

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From the medical evidence on record, it is proved that the claimant had sustained segmental fracture of right leg femur and other injuries. This segmental fracture of right leg femur is grievous in nature. The doctor-C.W.1 has not deposed that the claimant had suffered 50% of physical disability, but the Tribunal has assessed the percentage of physical disability at 50% without any evidence. Therefore, this is to be interfered with. The doctor-C.W.1 had not deposed anything regarding as to how much percentage of disability suffered by the claimant. Ex.P.139 is stated to be the disability certificate issued by the doctor, which is dated 30.12.2011, but it is much prior to that on 29.08.2011 the claimant is examined as P.W.2.

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5 - NC: 2023:KHC:19822 MFA No. 5499 of 2012

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Therefore, the learned counsel for the

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Insurance Company is right as to how it is possible the disability certificate to be marked in the evidence given by the claimant who was examined as P.W.2 on 29.08.2011, when the disability certificate is dated 30.12.2011. Further more, as above discussed, the doctor has not stated anything regarding how much percentage of disability is suffered by the claimant. Therefore, the Tribunal has not applied its mind in assessing the disability at 50% and awarding compensation accordingly. Therefore, the quantum of compensation awarded under the head loss of future income due to disability is to be modified and reassessed.

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The claimant was aged about 26 years being a goldsmith. The evidence on record proves that the claimant had sustained segmental fracture of right leg femur. For such fracture of right leg femur, assessing 50% of functional disability without any evidence is exorbitant and excessive one. Therefore, considering the nature of

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6 - NC: 2023:KHC:19822 MFA No. 5499 of 2012

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injuries sustained and profession of the claimant, it is just and proper to hold the functional disability at 8% affecting the work of the claimant as a goldsmith. The accident was caused in the year 2009, therefore, in absence of proof of income of the claimant, notional income at Rs.5,000/- per month is to be taken into consideration as per the Notional

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Income Chart recognized by the Karnataka State Legal Service Authority. As the claimant was aged 26 years, the appropriate multiplier applicable is “17”. Therefore, the compensation under the head loss of future income due to disability is re-assessed and quantified as follows:

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Rs.5,000/- x 8% x 17 x 12=Rs.81,600/-

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Accordingly, compensation of Rs.81,600/- is

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awarded under the head loss of future income due to disability.

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The quantum of compensation awarded

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under other heads is found to be just and proper and correct. Therefore, the same are kept in tact.

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7 - NC: 2023:KHC:19822 MFA No. 5499 of 2012

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Thus, in all, the claimant is entitled to

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total compensation determined by this Court as follows:

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1	Medical treatment	Rs.	42,408/-	Kept in tact
2	For pain and suffering	Rs.	30,000/-	Kept in tact
3	For loss of comfort, amenities, enjoyment of life etc.,	Rs.	30,000/-	Kept in tact
4	For attendant	Rs.	1,200/-	Kept in tact
5	For conveyance	Rs.	5,000/-	Kept in tact
6	For special diet	Rs.	1,000/-	Kept in tact
7	For loss of income during the period of hospitalization	Rs.	1,800/-	Kept in tact
8	For future medical expenses	Rs.	10,000/-	Kept in tact
9	For future loss of	Rs.
	income due to disability		81,600/-	Modified
	Total	Rs.	2,03,008/-

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Therefore, the appellant/claimant is

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entitled to total compensation of Rs.2,03,008/- as against Rs.2,40,748/- awarded by the Tribunal along with

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NC: 2023:KHC:19822 MFA No. 5499 of 2012

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interest at the rate of 6% p.a., from the date of petition till realization.

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12. Therefore, with the aforesaid discussion,

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the appeal is liable to be allowed in part. Hence, I proceed to pass the following

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ORDER

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i. The appeal filed by the Insurance Company is allowed-in-part .

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ii. The impugned judgment and award dated 23.02.2012 in MVC.No.668/2010 passed by

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the District Judge, Addl. MACT II, I Fast Track Court, Shimoga, is modified to the extent that the claimant is entitled to total compensation of Rs.2,03,008/- as against Rs.2,40,748/- awarded by the Tribunal along with interest at the rate of 6% p.a., from the date of petition till realization.

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9 - NC: 2023:KHC:19822 MFA No. 5499 of 2012

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iii. No order as to costs.

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iv. The amount in deposit shall be transferred to the Tribunal and the Tribunal, if found any excess amount, the same shall be refunded to the appellant-Insurance Company.

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Sd/JUDGE

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The Manager v. Surendra N

Case brief

What is this about?

What did the court decide?

The Manager v. Surendra N

Case brief

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