Allowed

The Manager v. Kumari Divya D/O Mariswamy Nagur

Karnataka HC3 Jul 2024MFA/100697/2022

Case brief

AI extract

What is this about?

In this miscellaneous first appeal, the High Court of Karnataka modified the Motor Accident Claims Tribunal's award of Rs. 9,04,143 to Rs. 7,36,473. The Court reduced the compensation for amenities, loss of future income, and other heads while retaining medical and hospital bills.

What did the court decide?

The Motor Accident Claims Tribunal's award is modified; compensation reduced to Rs. 7,36,473.

The Manager Vs Kumari Divya D/O Mariswamy Nagur — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:9072 MFA No. 100697 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 3^RD DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE VENKATESH NAIK T

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MISCELLANEOUS FIRST APPEAL NO.100697 OF 2022 (MV-I)

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BETWEEN:

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THE MANAGER, SHRIRAM GENERAL INSURANCE COM. LTD., NO. E-8 EPIP, SITAPUR INDUSTRIAL AREA, JAIPUR, RAJASTAN, REPTED. BY ITS AUTHORISED SIGNATORY.

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…APPELLANT

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(BY SRI. NAGARAJ C. KOLLOORI, ADVOCATE)

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AND:

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KUMARI DIVYA D/O. MARISWAMY NAGUR, AGE: 26 YEARS, OCC: LAB ANALYST, R/O. AMBEDKAR NAGAR, KUSHTAGI, TQ: KUSHTAGI DIST: KOPPAL-583277.

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Digitally signed by MANJANNA E Location: HIGH COURT OF KARNATAKA

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MAILARAPPA S/O. UDANAPPA WALIKAR, AGE: 32 YEARS, OCC: DRIVER, R/O. KATAPUR, TQ: KUSHTAGI, DIST: KOPPAL-583277.

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CHANDRAKANT S/O. HULAGAPPA MUDHOL, AGE: 34 YEARS, OCC: BUSINESS, WARD NO. 3, ANADANESHWAR NAGAR, KUSHTAGI, TQ: KUSHTAGI, DIST: KOPPAL-583277.

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…RESPONDENTS

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(BY SRI D. V. PATTAR, ADV. FOR R1; NOTICE TO R2 DISPENSED WITH)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988 PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 14-09-2021 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND M.A.C.T KUSHTAGI IN MVC NO.399/2018 AND ETC.

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

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NC: 2024:KHC-D:9072 MFA No. 100697 of 2022

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JUDGMENT

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This appeal is filed by the Insurer (respondent No.3 before the Tribunal) challenging the judgment and award dated 14.09.2021 passed in MVC.No.399/2018 on the file of Senior Civil Judge and M.A.C.T., Kushtagi, on liability and quantum, whereby the Tribunal awarded compensation of Rs.9,04,143/- to the claimant.

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For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.

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The claim petition was filed seeking compensation of Rs.26,00,000/- on account of injuries suffered by the claimant in the road traffic accident that took place on 04.05.2017. The claimant was travelling in a Tempo Trax bearing registration No.KA.27/5305. The driver of Tempo Trax drove the same in a rash and negligent manner, when he was near Mangaluru village on Bevooru, lost his control over the vehicle and thus it was turned turtle and caused the accident. Due to the said impact, the claimant sustained

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3 - NC: 2024:KHC-D:9072 MFA No. 100697 of 2022

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injuries. Immediately, the claimant was shifted to Suchirayu Hospital, Hubballi, where she operated and her joint replaced. Hence, the first informant, lodged the complaint, which leads to FIR and investigation.

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The Tribunal considering documentary evidence available on record as Exs.P.1 to P.17 and considering the oral evidence of PWs.1 and 2 has awarded compensation of Rs.9,04,143/- to the claimant.

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Learned counsel for the insurance company submits that the accident in question occurred on 04.05.2017 and the first informant lodged the complaint on 09.05.2017. Hence, there is delay of five days in lodging the complaint and the delay has not been satisfactorily explained by the first informant.

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Further the Tempo Trax vehicle do not possess any permit to ply the vehicle on the road and the owner of the vehicle do not possessed fitness certificate for transportation of the vehicle. Learned counsel also contended that, the Tribunal has awarded a compensation

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4 - NC: 2024:KHC-D:9072 MFA No. 100697 of 2022

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under the head of loss of future income considering future prospects, which does not permissible as the claimant sustained only one injury i.e., fracture of humerus. Further, the Tribunal wrongly considered the disability at 20%, in fact, the doctor has issued disability from 15% to 20%. Therefore, the Tribunal considered the disability at 20%, which is high and exorbitant, hence, he prayed to allow the appeal.

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Learned counsel for the claimant submits that,

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the Tribunal considering oral and documentary evidence on record has awarded fair and reasonable compensation. Hence, no interference is called for in that regard.

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In view of the submission made by the learned

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counsel for appellant and respondents, the points that would arise for Court’s consideration in this appeal is as under:

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i. Whether the appellant prove that the Tempo Trax vehicle do not possess valid permit and fitness certificate, hence it is not liable to pay compensation?

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ii. Whether the quantum of compensation awarded by the Tribunal is just and reasonable and does it call for any interference for enhancement?

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5 - NC: 2024:KHC-D:9072 MFA No. 100697 of 2022

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As per the contention of the appellant, the accident occurred on 04.05.2017 and the complaint was lodged on 19.05.2017, hence there is delay of five days in lodging the complaint. From perusal of the material available on record soon after the accident, the claimant was admitted to the Hospital and thereafter the claimant went to home and then she lodged the complaint. Hence, the delay has been caused and it has been properly explained by the claimant. Mere delay in filing the complaint, does not disprove the case of the claimant. Further, the appellant-Insurance Company has taken contention that, there was no permit and fitness certificate to the Tempo Trax to ply the vehicle on the road.

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Insofar as the contention of the appellant that the driver of the Tempo Trax was not possessing valid and effective driving licence, learned counsel for the appellant submits that, the driver of the said vehicle was possessed valid and effective driving licence as on the date of accident.

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Insofar as permit and fitness certificate, the Insurance Company has not led any evidence and no documents were produced in that regard, contending that

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6 - NC: 2024:KHC-D:9072 MFA No. 100697 of 2022

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the Tempo Trax was not possessing valid permit and fitness certificate, hence, there are no merits in the contention of insurer.

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After hearing learned counsel appearing for the parties and after perusing the judgment and award of the Tribunal, I am of the view that, the compensation awarded by the Tribunal is not just and reasonable, it is on the higher side and it requires to be reduced.

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As per Ex.P.7-Wound Certificate, the claimant sustained fracture of humerus. As per the opinion of the doctor, the said injury is grievous in nature. The injury sustained and the treatment taken by the claimant is also supported by the oral evidence of the claimant and the doctor who were examined as PWs.1 & 2.

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In this case, the Tribunal has observed that the claimant sustained a grievous injury. Hence, the claimant is entitled to an amount of Rs.40,000/- for grievous injury and the head of Pain and suffering.

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7 - NC: 2024:KHC-D:9072 MFA No. 100697 of 2022

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The Tribunal has awarded a sum of

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Rs.1,48,521/- under the head medical expenses, also awarded a sum of Rs.1,25,102/- towards bills of hospital, which are reasonable amount and no interference in that regard is called for by this Court.

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The Tribunal awarded sum of Rs.35,000/-

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towards amenities, which is high and exorbitant, it is reduced

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to Rs.30,000/-.

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Tribunal has not awarded any compensation towards food, nourishment, conveyance and attendant charges, hence an additional sum of Rs.30,000/- is awarded under this head.

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Towards loss of future income, the tribunal awarded a sum of Rs.5,44,320/-, considering the income of the claimant at Rs.9,000/- The accident is of the year 2017, as per the circular issued by the Karnataka Legal Services Authority, for the accident of the year 2017, the appropriate notional income would be Rs.10,250/-. If income of the claimant is considered as Rs.10,250/-, then the

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NC: 2024:KHC-D:9072 MFA No. 100697 of 2022

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compensation under the head of loss of future income would

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be Rs.3,32,100/- (Rs.10,250/- X 12 X 18 X 15/100).

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Towards loss of income during laid up period, the Tribunal has awarded Rs.1,200/-, which is not reasonable one. The nature of injury suggested that the claimant must have rest and treatment for a period of three months and therefore a sum of Rs.30,750/- (Rs.10,250/- X 3) is awarded under this head.

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Thus, the claimant is entitled to compensation on

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the following heads.

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Sl.	Descrition	Compensation	awarded by
No.	p	Tribunal	This Court
1	Pain and suffering	25,000/-	40,000/-
2	Towards fracture	25,000/-	--
3	Loss of earning capacity	5,44.320/-	3,32,100/-
4	Loss of amenities	35,000/-	30,000/-
5	Loss of income during laid up period for three months	1,200/-	30,750/-
6	Food, nourishment, conveyance and attendant charges	Not awarded	30,000/-
7	Medical expenses	1,48,521/-	1,48,521/-
8	Hospital Bills	1,25,102/-	1,25,102/-
	Total	9,04,143/-	7,36,473/-
Com	pensation Awarded by the
Tribu	nal		9,04,143/-
Red	uced by this Court	(-	)1,67,670/-

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Accordingly I pass the following:

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NC: 2024:KHC-D:9072 MFA No. 100697 of 2022

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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 judgment and award dated14.09.2021 passed in MVC.No.399/2018 on the file of Senior Civil Judge & MACT at Kushtagi is hereby modified to the extent stated herein above.

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iii. The claimant is entitled for Rs.7,36,473/- as against Rs.9,04,143/awarded by the Tribunal. Hence Rs.1,67,600/- is reduced from total compensation of Rs.9,04,143/-.

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iv. The appellant-Insurance Company is directed to pay entire compensation together with interest within a period of four weeks from the date receipt of copy of this judgment.

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v. Draw modified award accordingly.

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vi. Registry is directed to transmit the copy of the judgment to the concerned Tribunal.

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vii. The amount in deposit, if any, shall be transmitted to the Concerned Tribunal.

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No order as to costs.

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EM/ct-an : List No.: 1 Sl No.: 5

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Sd/JUDGE

The Manager v. Kumari Divya D/O Mariswamy Nagur

Case brief

What is this about?

What did the court decide?

The Manager v. Kumari Divya D/O Mariswamy Nagur

Case brief

What is this about?

What did the court decide?

What the court decided

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