Partly allowed

Kishore R @ Kishore Raj R v. Royal Sundaram Alliance

Karnataka HC11 Aug 2023MFA/719/2012

Case brief

AI extract

What is this about?

The High Court enhanced motor accident compensation, raising the quantum based on notional income and revising the contributory negligence percentage due to the insurer's failure to adduce evidence against the pedestrian claimant.

What did the court decide?

Appeal partly allowed; compensation enhanced from Rs.1,88,530 to Rs.3,52,096 with 6% interest; deposit required within eight weeks.

Kishore R @ Kishore Raj R Vs Royal Sundaram Alliance — Medical Negligence | Karnataka HC (2023)

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NC: 2023:KHC:28617 MFA No. 719 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 719 OF 2012 (MV-I)

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BETWEEN:

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KISHORE R @ KISHORE RAJ R., S/O R. RAJKUMAR, AGED ABOUT 20 YEARS, R/AT NO.10/1, 7^TH MAIN, AGRAHARA DASARAHALLI, BANGALORE - 560 079.

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…APPELLANT

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(BY SRI. D.S. SRIDHAR, 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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ROYAL SUNDARAM ALLIANCE, INSURANCE COMPANY LIMITED, NO.9/1, OLD MADRAS ROAD, ULSOOR, BANGALORE - 560 042. BY ITS MANAGER.

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SRI. HARINAIDU, SINCE MAJOR, S/O KANNAIAH NAIDU, NO.13/2, II A CROSS, KHB COLONY, FIRST PHASE, BASAVESHWARANAGAR, BANGALORE - 560 079.

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…RESPONDENTS

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(BY SRI. RAVI S. SAMPRATHI, ADVOCATE FOR R1; VIDE ORDER DATED: 05.04.2014 NOTICE TO R2 IS DISPENSED WITH)

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NC: 2023:KHC:28617 MFA No. 719 of 2012

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED:19.10.2011 PASSED IN MVC NO.8537/2009 ON THE FILE OF THE XII ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

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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 is an appeal filed by the claimant aggrieved by

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the award dated 19.10.2011 passed in MVC No.8537/2009 by the XII Additional Small Causes Judge and Member, Motor Accident Claims Tribunal, Bengaluru whereby the Tribunal granted an amount of Rs.1,88,530/as compensation.

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The claim petition was filed seeking compensation of an amount of Rs.10,00,000/- for the injuries sustained in the traffic road accident that took place on 28.11.2009. It is the case of the claimant that on 28.11.2009 at about 12:30 p.m., the driver of a Maruthi Swift car drove the

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same in a rash and negligent manner and dashed from

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behind against the pedestrian i.e., the claimant, who was

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3 - NC: 2023:KHC:28617 MFA No. 719 of 2012

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crossing the road in a direction from north to south at that time. As a result of this impact, the claimant fell down and sustained injuries. It was stated that the claimant was 18 years old as on the date of the accident and drawing salary of Rs.8,000/- per month and because of the said accident, he sustained the following injuries:

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(i) Haemoperitoneum secondary to spileenic injury

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(blunt injury abdomen);

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(ii) Fracture right clavicle;

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(iii) Fracture left 5th rib;

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(iv) Sub conjunctival hemorrhage left eye;

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(v) Contusion right parietal subgaleal haematoma.

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As per the evidence of the doctor, the claimant had sustained permanent disability of 20%. The Court below had considered the functional disability at 10% and has discussed in detail about the disability and how it was assessed at 10%, towards pain and suffering granted an amount of Rs.35,000/-, towards loss of pay during the laid

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NC: 2023:KHC:28617 MFA No. 719 of 2012

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up period, considering the income per month at Rs.3,000/granted an amount of Rs.12,000/- for four months, towards loss of future income, by applying appropriate multiplier granted an amount of Rs.64,800/-, towards loss of amenities an amount of Rs.10,000/- was granted, towards medical and incidental expenses, an amount of Rs.1,00,000/- was granted. Altogether compensation of an amount of Rs.2,21,000/- was granted.

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When it comes to the liability, the Tribunal has held that as per the evidence, the claimant was crossing the road other than on the zebra crossing or pedestrian crossing. As such relying on the judgment of this Court has held that there is no negligence on the part of the claimant and apportioned the contributory negligence at 15% on the claimant and 85% on the insurance company.

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The learned counsel for the claimant submits that claimant was doing coolie work and earning an amount of

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Rs.8,000/- per month. The Court below instead of considering Rs.8,000/- per month as income has only

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5 - NC: 2023:KHC:28617 MFA No. 719 of 2012

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considered Rs.3,000/- per month, which is on the lower side and granted only an amount of Rs.12,000/- towards loss of income during the laid up period. It is submitted that the compensation that is awarded by the Tribunal was not just and reasonable. The learned counsel further submits that towards the medical and incidental expenses, the Court below has granted only an amount of Rs.1,00,000/-, when the medical expenses incurred was Rs.91,896/- and under the other head of transportation, extra nourishment and attendant charges only an amount

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of Rs.9000/- is granted. It is submitted that the compensation that is awarded by the Tribunal is not just and reasonable.

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The learned counsel appearing for the insurance company submits based on the evidence, the Court below had rightly taken the income at Rs.3,000/- per month. He submits that though the doctor had given the report that he has suffered the disability to an extent of 20%, the Court below considering functional disability has rightly

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NC: 2023:KHC:28617 MFA No. 719 of 2012

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granted an amount of Rs.10,000/-. He submits that claimant has failed to make out any ground for enhancement of compensation.

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Having heard the learned Counsel on either side

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perused the entire material on record.

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The accident and negligence on the part of the

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driver of the offending vehicle is not in dispute. Coming to the compensation, according to the claimant, he is working

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as a coolie and earning Rs.8,000/- per month, No doubt there is no evidence on record but the Court below has taken the notional income of the claimant at Rs.3,000/per month. As per the judgment of Apex Court in the case of Ramachandrappa V/s Manager Royal Sundaram Alliance¹ where without there being any evidence, the Court had taken the income of the labourer at Rs. 4,500/and hence, this Court is inclined to consider the income at

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1 2011 (13) Scc 236

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NC: 2023:KHC:28617 MFA No. 719 of 2012

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Rs. 4,500/- per month. The claimant had sustained two grievous injuries and three simple injuries, under the head

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of 'Pain and Suffering' , this Court is inclined to grant an amount of Rs.1,10,000/- . Coming to the disability, though the doctor had stated that he is suffering 20% disability, the Court below has discussed that the doctor who is examined is not the treated doctor. Apart from that, according to the doctor, 20% physical disability is in the following order:

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" a) Post splenectomy -30%,

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b) Difficulty in micturation satisfactorily-10%,

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c) Pain in the abdomen-10%

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d) Fever with chills-5%"

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The Court below considering the evidence has

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assessed the functional disability at 10% and this Court finds no reason to interfere with the same. The Court below had rightly considered the same from the point of functional disability. Hence considering the income of the

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8 - NC: 2023:KHC:28617 MFA No. 719 of 2012

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claimant as Rs.4,500/- per month and his age 18 years, applying the appropriate multiplier 4500x12x18x10/100, the compensation comes to Rs.97,200/- under the head of 'loss of future income due to disability' . Towards 'loss of income during the laid up period' , this Court has considered the income of the claimant at Rs.4,500/per month and hence, it comes to Rs.18,000/- . Towards 'loss of amenities' a sum of Rs.10,000/- is granted, and towards 'medical expenses' , the Court below has considered Rs.91,896/- which is just and reasonable compensation and no interference in that regard is called for from this Court. But when it comes to 'incidental expenses' , the Court below had granted a sum of Rs.10,000/- and this Court under the head 'transportation, attendant charges and extra nourishment' is inclined to grant an amount of Rs.15,000/- .

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In the light of the law laid down by the Hon'ble Apex Court the case of V. Mekala -vs- M. Malathi and

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9 - NC: 2023:KHC:28617 MFA No. 719 of 2012

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Another² , the claimant is entitled for an amount of Rs.10,000/- towards 'legal expenses' .

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The Court below had fixed the contributory negligence on the claimant. This Court has perused the reason given by the Court below. It is also an admitted fact that the insurance company has not adduced any evidence and they have not even taken any effort to examine the driver of the said car. The Court below has also observed that an adverse inference has to be drawn against the insurance company. However, relying on the judgment of this Court as the claimant was crossing the road other than the place provided for the pedestrians to cross the road, the Court below held that claimant was also negligent and apportioned the same at 15% on the claimant. It is no doubt true that he was crossing the road other than a place specified for the pedestrian, but as the insurance company has not led any evidence, this Court is inclined to apportion the negligence at 10% on the part of the claimant and 90% on the insurance company. 2 (2014)11 SCC 178

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10 -

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NC: 2023:KHC:28617 MFA No. 719 of 2012

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Accordingly, as this Court has already held that there is contributory negligence on the part of the claimant at 10%, the respondent-insurance company is liable to pay an amount of Rs.3,07,886/- which is 90% of the said amount.

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In the light of the above discussion, the claimant is, therefore, entitled to the compensation under the following heads:

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	Heads	Compensation Awarded (in Rs.)
1.	Pain and Suffering	1,10,000
2.	Loss of future income	97,200
3.	Loss of income during laid up period (4,500x4)	18,000
4.	Loss of amenities	10,000
5.	Medical expenses	91,896
6.	Transport, attendant charges and extra nourishment	15,000
7.	Legal expenses	10,000
	TOTAL	3,52,096

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11 -

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NC: 2023:KHC:28617 MFA No. 719 of 2012

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Accordingly, the following:

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ORDER

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i) The Appeal is partly allowed by enhancing from Rs.1,88,530/- to Rs.3,52,096/-;

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

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

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iv) No costs.

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SD/JUDGE

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NSU

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List No.: 1 Sl No.: 11 CT: ABS

Kishore R @ Kishore Raj R v. Royal Sundaram Alliance

Case brief

What is this about?

What did the court decide?

Kishore R @ Kishore Raj R v. Royal Sundaram Alliance

Case brief

What is this about?

What did the court decide?

What the court decided

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