Partly allowed

The Divisional Manager v. Lokesha G

Karnataka HC25 Jan 2023MFA/5783/2017

Case brief

AI extract

What is this about?

This High Court modified the Motor Accident Claims Tribunal's award by recalculating the compensation for loss of future earning capacity based on functional disability principles. The compensation was reduced slightly due to the appellant's request for adjustments, and the claimant's request for enhancement was dismissed. The insurance company was directed to deposit the modified amount.

What did the court decide?

Modified the award to Rs. 9,24,400/-; refused enhancement; allowed reduction sought by insurance; directed deposit within eight weeks.

The Divisional Manager Vs Lokesha G — Insurance | Karnataka HC (2023)

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MFA No. 5783 of 2017 C/W MFA No. 7030 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF JANUARY, 2023 BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO. 5783 OF 2017 (MV-I)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 7030 OF 2017 (MV-I)

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IN MFA NO.5783/2017

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BETWEEN:

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THE DIVISIONAL MANAGER MAGMA HDI GENERAL INSURANCE CO.LTD., 2ND FLOOR, H.M.J.C.ROAD, 36, J.C.ROAD, MINERVA CIRCLE, BANGALORE

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

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THE CLAIM MANAGER MAGMA HDI GENERAL INSURANCE COMPANY LIMITED., NO.36, HMJC BUILDING, 2ND FLOOR, ABOVE AXIX BANK, J.C.ROAD, BANGALORE-560 002

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…APPELLANT

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(BY SRI. O MAHESH, ADVOCATE, THROUGH VIDEO CONFERERNCE)

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AND:

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LOKESHA G S/O GIRIGOWDA, AGED 42 YEARS, DRIVER, R/O HUCCHARAYI COLONY,

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MFA No. 5783 of 2017 C/W MFA No. 7030 of 2017

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VINOBANAGARA, SHIVAMOGGA CITY-577201

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2. GURURAJ

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AGED 40 YEARS, S/O LATE ESHVVARAPPA, OWNER OF PRIVATE BUS BEARING REG.NO.KA-52/6318) R/O HOUSE NO.1569, 1ST MAIN ROAD, 2ND CROSS, KAMALANAGARA, BANGALORE-560079.

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…RESPONDENTS

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(BY SRI. M V MAHESHWARAPPA. ADVOCATE FOR R1,)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.03.2017 PASSED IN MVC NO.846/2015 ON THE FILE OF THE IST ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL M.A.C.T. VII, SHIVAMOGGA, AWARDING COMPENSATION OF RS. 9,46,000/WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN MFA NO.7030/2017

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BETWEEN:

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LOKESHA G S/O GIRIGOWDA AGED ABOUT 42 YEARS DRIVER, R/O HUCCHARAYI COLONY, VINOBANAGARA SHIVAMOGGA CITY - 577201

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…APPELLANT

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(BY SRI. M V MAHESHWARAPPA, ADVOCATE)

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MFA No. 5783 of 2017 C/W MFA No. 7030 of 2017

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AND:

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SARAVANA S/O CHINNASWAMY AGED ABOUT 47 YEARS DRIVER OF PRIVATE BUS BEARING REG NO KA-52/6318, R/O NO 513, 4TH CROSS, 5TH BLOCK, JAYANAGARA BENGALURU CITY – 560011.

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GURURAJ

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S/O LATE ESHWARAPPA AGED ABOUT 40 YEARS OWNER OF PRIVATE BUS BEARING REG NO KA-52/6318, R/O HOUSE NO 1569, 1ST MAIN ROAD, 2ND CROSS, KAMALANAGARA, BENGALURU - 560011

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THE DIVISIONAL MANAGER MAGMA HDI GENERAL INSURANCE CO LTD 2ND FLOOR, H M J C ROAD, 36, J C ROAD, MINERVA CIRCLE, BENGALURU - 560011

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…RESPONDENTS

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(BY SRI. O. MAHESH, ADVOCATE FOR R3 (THROUGH VIDEO CONFERENCE), R1 & R2-NOTICE DISPENSED WITH V/O DATED 19-01-2018)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.03.2017 PASSED IN MVC NO.846/2015 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, & ADDITIONAL MACT, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALs, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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MFA No. 5783 of 2017 C/W MFA No. 7030 of 2017

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JUDGMENT

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These appeals are filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as ‘MV Act’ for brevity) calling in question the judgment and award dated 28.03.2017, passed in M.V.C.No.846/2015, on the file of the First Additional Senior Civil Judge And Addl. Motor Accident Claims Tribunal-VII, Shivamogga, (hereinafter referred to as ‘the Tribunal’ for brevity).

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MFA No.5783/2017 is filed by the insurance company questioning the rash and negligent aspect and also for seeking reducing of the compensation amount.

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MFA No.7030/2017 is filed by the claimant seeking enhancement of the compensation.

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Briefs facts:

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On 31.05.2015 at around 10.00 p.m., the claimant herein being the owner-cum-driver of Eicher Canter lorry bearing registration No.KA-45/2730 left

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MFA No. 5783 of 2017 C/W MFA No. 7030 of 2017

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Bangalore going towards Shivamogga after loading the household articles in his vehicle. When he was proceeding near Iduskere Gate, N.H. 206, Kasaba Hobli, Tiptur Taluk, Tumkur District, at about 3.30 a.m., the first respondent came from opposite direction driving the private bus bearing registration No.52/6318 in a rash and negligent manner and dashed against the claimant’s lorry.

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REGARDING RASH AND NEGLIGENCE:

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The accident is between a private bus bearing

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registration No.KA-52/6318 and Eicher Carrier lorry bearing registration No.KA-45/2730. It is alleged that the

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driver of the bus drove the same in rash and negligent manner by coming opposite to the canter lorry and dashed the canter lorry. Exhibit–P3 is the complaint given by the cleaner of the bus, making allegations against the driver of the bus that he has caused the accident. The complainant was travelling in the said lorry as a Cleaner and he is eye-witness to the accident. He has made

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MFA No. 5783 of 2017 C/W MFA No. 7030 of 2017

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allegation against the driver of the bus. The charge-sheet was filed as against the driver of the bus. Therefore, the Investigating Officer after investigating the crime had formed an opinion that the driver of the bus was driving the bus rash and negligently and caused the accident.

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Even though the charge-sheet filed is not a conclusive proof, but it probablises the averments made by the claimant. Filing of the charge-sheet after statutory investigation by Police has its own weightage and sanctity. Unless there is contrary evidence, the charge-sheet material cannot be brushed aside. Therefore, on all its preponderance of probabilities, it is proved that the driver of the bus had caused the accident. Therefore, the finding given by the Tribunal in this regard is found to be correct.

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REGARDING QUANTUM:

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The Tribunal has awarded compensation under various heads as follows:

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MFA No. 5783 of 2017 C/W MFA No. 7030 of 2017

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Injury, Pain and Sufferings	: Rs.	75,000/-
Medical Expenses	: Rs.	4,55,000/-
Future Medical Expenses	: Rs.	50,000/-
Loss of Income	: Rs.	90,000/-
Loss of Future Earning Capacity	: Rs.	2,16,000/-
Nourishing, Attendance, Conveyance	: Rs.	60,000/-
TOTAL	: Rs.	9,46,000/-

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As per the Exhibit-C1, O.P Record, Exhibit-C2, X-ray films and Exhibit-C3 Disability Certificate, coupled with the evidence of CW-1, Doctor and the documentary evidence, it is proved that the claimant had suffered fracture of right tibia and left radius and there is 40% loss of power in the leg muscles. The claimant has also suffered fracture of right lower limb and the Doctor has assessed the disability of the right lower limb at 23%. Therefore, the whole-body disability will be approximately 7.66% and the Tribunal has considered the whole-body

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MFA No. 5783 of 2017 C/W MFA No. 7030 of 2017

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disability 8% and by holding the monthly income at Rs.15,000/- per month accordingly granted compensation.

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The claimant was aged 40 years and the accident has occurred during the year 2015. The Tribunal has held the income of the claimant at Rs.15,000/- per month, which is inappropriate. As per Chart of notional income recognized by the Karnataka State Legal Services Authority, a sum of Rs.9,000/- is to be taken as notional monthly income of the claimant in the absence of proof of income. The Tribunal had taken 8% disability to the whole-body. The Doctor can only say physical disability

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either the whole or partial. The Doctor stated that the claimant has suffered physical disability of 23% to the particular leg and 8% disability to the whole-body. But the fact that the claimant being a driver has suffered fracture right tibia and left radius and that there is 40% muscle weakness. Therefore, considering the nature of injuries and disability sustained and the avocation of the claimant,

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MFA No. 5783 of 2017 C/W MFA No. 7030 of 2017

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the criteria for calculating functional disability is elaborately discussed by the Hon’ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another¹

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Therefore, considering the principles laid down by the Hon’ble Supreme Court stated supra, and the injuries suffered by the appellant, certainly the disability will affect

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his earning capacity. Accordingly, it is held that the claimant has suffered 12% functional disability to the whole-body. The appropriate multiplier applicable as per the judgment of the Hon’ble Supreme Court, in the case of

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Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another² is ‘15’. Therefore, the compensation under the head ‘Loss of Earning Capacity Due to Disability’ is recalculated and quantified as follows:

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Rs.9,000/- x 12% x 15 x 12 = Rs.1,94,400/-

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1 (2011) 1 SCC 343

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2 AIR 2009 SC 3104

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10 -

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MFA No. 5783 of 2017 C/W MFA No. 7030 of 2017

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The compensation amount awarded by the

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Tribunal under the ‘ Medical Expenses’ at Rs.4,55,000/-

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is per actual bills and receipts and the same is kept in tact.

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Even though the Tribunal has not awarded compensation under the head ‘Loss of Amenities’, in view of the compensation awarded by the Tribunal on various other heads being slightly higher side and the same are kept intact, the compensation towards loss of amenities is not awarded.

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Therefore, in modification of the award of the Tribunal, the claimant is entitled to the following compensation:

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Injury, Pain and Sufferings	:	Rs.	75,000/-	(Kept In Tact)
Medical Expenses	:	Rs.	4,55,000/-	(Kept In Tact)
Future Medical Expenses	:	Rs.	50,000/-	(Kept In Tact)
Loss of Income	:	Rs.	90,000/-	(Kept In Tact)

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11 -

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MFA No. 5783 of 2017 C/W MFA No. 7030 of 2017

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Loss of Future Earning Capacity	:	Rs.	1,94,400/-
(Rs.9,000 x 12% x 15 x 12)
Nourishing, Attendance, Conveyance	:	Rs.	60,000/-
TOTAL	:	Rs.	9,24,400/-

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Therefore, the claimant is entitled for

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compensation of Rs.9,24,400/- as against Rs.9,46,000/-,

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along with interest at 6% per annum from the date of filing of the petition till realization. The Insurance Company is directed to deposit the amount of total compensation within Eight Weeks from the date of receipt of the certified copy of this judgment.

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Accordingly, I pass the following:

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ORDER

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i. MFA No.5783/2017 filed by the insurance company is Allowed In Part .

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MFA No. 5783 of 2017 C/W MFA No. 7030 of 2017

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ii. MFA No.7030/2017 filed by the claimants is liable to be Dismissed .

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iii. The impugned judgment and award the judgment and award dated 28.03.2017, passed in M.V.C.No.846/2015, on the file of the First Additional Senior Civil Judge And Addl. Motor Accident Claims Tribunal-VII, Shivamogga, is modified to the aforesaid extent.

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iv. The claimant is entitled for compensation of Rs.9,24,400/- along with interest at 6% per annum from the date of filing of the petition till realization.

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v. However, the claimant is not entitled for interest for the delayed period of 23 days, in filing the appeal.

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vi. Insurance company shall pay the compensation to the claimant.

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13 - MFA No. 5783 of 2017 C/W MFA No. 7030 of 2017

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vii. 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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viii. The amount in deposit shall be transmitted to the Tribunal forthwith.

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ix. No order as to costs.

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x. Draw award accordingly.

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Sd/JUDGE

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JJ List No.: 2 Sl No.: 19

The Divisional Manager v. Lokesha G

Case brief

What is this about?

What did the court decide?

The Divisional Manager v. Lokesha G

Case brief

What is this about?

What did the court decide?

What the court decided

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