Partly allowed

Sri. Ambarish @ Amresh v. the Manager

Karnataka HC21 Aug 2024MFA/1817/2019

Case brief

AI extract

What is this about?

Claimant injured in a 2017 motorcycle-car collision appealed for enhancement of compensation fixed at Rs.7,25,580 by MACT Bengaluru. Applying KSLSA guidelines of Rs.11,000 per month notional income and 22% whole-body disability with a multiplier of 14, the court recomputed awards and enhanced total compensation to Rs.9,19,460 carrying interest at 6% per annum following the Joyeeta Bose decision.

What did the court decide?

Total compensation enhanced to Rs.9,19,460/- with 6% interest (excluding future medical expenses), payable by Insurance Company within six weeks.

Sri. Ambarish @ Amresh Vs the Manager — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:33502 MFA No. 1817 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 1817 OF 2019 (MV)

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BETWEEN:

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SRI. AMBARISH @ AMRESH S/O SRI. ALLALAPPA AGED ABOUT 42 YEARS R/AT APPAYYASWAMY LAYOUT UTTARAHALLI, SUBRAMANAYAPURA POST BANGALORE-01

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PERMANENT ADDRESS: BHOOPANAHALLI VILLAGE BAGALURU HOBLI, HOSUR TALUK KRISHNAGIRI DSITRICT TAMILNADU

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…APPELLANT

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(BY SRI. SHRIPAD V SHASTRI .,ADVOCATE)

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AND:

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Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA

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THE MANAGER M/S ACCENTURE SERVICE PVT LTD NO.4/1,IBC, KNOWLEDGE PARK BANNERGHATTA ROAD, BANGALORE-29.

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THE MANAGER TATA AIG GEN. INS. CO.LTD., NO.69, 2ND FLOOR, JP AND DEVI JAMBUKESHWARA ARCADE MILLERS ROAD, BENGALURU-560082.

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…RESPONDENTS

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(BY SRI.JANARDHAN REDDY., ADVOCATE FOR R2: NOTICE TO R1 IS DIPENSED WITH V/O DATED: 04.01.2022)

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2 - NC: 2024:KHC:33502 MFA No. 1817 of 2019

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:06.10.2018 PASSED IN MVC NO.6930/2017 ON THE FILE OF THE VII ADDITIONAL SMALL CAUSES JUDGE AND XXXII ACMM, MEMBER, MACT-3, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

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ORAL JUDGMENT

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This appeal under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant challenging by the judgment dated 06.10.2019 passed by MACT, Bengaluru in MVC No.6930/2017.

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Facts giving rise to the filing of the appeal briefly stated are that on 26.11.2017 when the claimant was proceeding on motorcycle bearing registration No.TN-70Q-3400 on Attibele-Sarjapura Road, near S.Medahalli Bus stop, at that time, car bearing registration No.KA-01-ML1775 being driven by its driver at a high speed and in a

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3 - NC: 2024:KHC:33502 MFA No. 1817 of 2019

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rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166 of the Act, seeking compensation. It was pleaded that he spent significant amount towards medical expenses, conveyance charges and other related costs. It was further pleaded that the accident occurred solely on account of rash and negligent driving of the offending vehicle by its driver.

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Upon service of notice, the respondent No.2 appeared through counsel and filed written statement denying the averments made in the claim petition. The respondent No.1, despite service of notice, did not appear before the Tribunal and was placed ex-parte.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter, recorded the evidence. The claimant, in order to prove the case,

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4 - NC: 2024:KHC:33502 MFA No. 1817 of 2019

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examined himself as PW-1, and Dr.Ambareesh.P. was examined as PW-2, and got exhibited documents namely Ex.P1 to Ex.P14. On behalf of the respondents, neither any witness was examined nor any document was produced. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.725,580/along with interest at the rate of 8% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, the present appeal has been filed.

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The learned counsel for the claimant has raised the following contentions:

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a) Firstly, the claimant asserts that he was earning Rs.1,000/- per day by doing business. However, the

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5 - NC: 2024:KHC:33502 MFA No. 1817 of 2019

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Tribunal has erred in taking the income as merely as Rs.8,000/- per month.

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b) Secondly, the claimant has examined the doctor as PW-2. The Tribunal undervalued the claimant's whole-body disability at 22%, contradicting the evidence of the doctor that the claimant suffered 72.84% disability to particular limb and 23.94% to whole body.

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c) Thirdly, the claimant has undergone four surgeries. The evidence of the doctor suggests that the claimant requires approximately Rs.60,000/- to Rs.70,000/- for removal of implants. But the Tribunal has awarded only Rs.15,000/- towards 'future medical expenses'.

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d) Lastly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 26 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment. Considering the same, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and

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6 - NC: 2024:KHC:33502 MFA No. 1817 of 2019

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sufferings' and other incidental expenses are on the lower side.

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With the above contentions, the learned counsel sought to allow the appeal.

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On the other hand, the learned counsel for the Insurance Company has raised the following countercontentions:

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a) Firstly, the assertion of claimant that he was earning Rs.1,000/- per day, remains unsubstantiated due to lack of documentary evidence. In the absence of proof of income, the Tribunal has assessed the income of the claimant notionally.

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b) Secondly, the Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 22%.

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c) Thirdly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the compensation awarded by the Tribunal under

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the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are just and reasonable and it does not warrant interference.

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d) Even though the evidence of the doctor suggests that the claimant requires approximately Rs.60,000/- to Rs.70,000/- for removal of implants, the claimant has not provided any estimate for future surgery. Hence, the Tribunal has rightly awarded Rs.15,000/- towards 'future medical expenses'.

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e) Lastly, in light of the Division Bench decision of this Court in the case of Ms.Joyeeta Bose and others –v-

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Venkateshan.V and others (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the rate of interest awarded by the Tribunal at 8% p.a. on the compensation amount appears excessive.

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With the above contentions, the learned counsel sought to dismiss the appeal.

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Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.

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8 - NC: 2024:KHC:33502 MFA No. 1817 of 2019

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It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 26.11.2017 due to rash and negligent driving of the offending vehicle by its driver.

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The claimant claims that he was earning Rs.1,000/per day. But he has not produced any documents to substantiate his claim. Therefore, in the absence of proof of income, notional income has to be assessed. According to the guidelines issued by the Karnataka State Legal Services Authority, for accidents occurred in the year 2017, notional income shall be taken at Rs.11,000/- p.m.

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As per wound certificate, the claimant has sustained fracture right ulna, fracture of femur, fracture of right side ribs 7, 8, and 10^th fracture of pelvis, fracture of right thumb. The doctor in his evidence has stated that the claimant has suffered disability of 72.84% to particular limb and 23.94% to whole body. Therefore, taking into consideration the deposition of the doctor and injuries

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9 - NC: 2024:KHC:33502 MFA No. 1817 of 2019

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mentioned in the wound certificate, the Tribunal has rightly taken the whole body disability at 22%. The claimant is aged about 43 years at the time of the accident and multiplier applicable to his age group is ‘14’. Thus, the claimant is entitled for compensation of Rs.406,560/- (Rs.11,0001214*22%) on account of 'loss of future income'.

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The nature of injuries indicates that the claimant must have been under rest and treatment for a period of 5 months. Consequently, the claimant is entitled for compensation of Rs.55,000/- (Rs.11,000*5 months) under the head ‘loss of income during laid up period’.

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The claimant was hospitalized as an inpatient for more than 26 days in the hospital and subsequently received further treatment. Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. Considering the prolonged pain during treatment as well as the permanent disability certified by the doctor,

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10 - NC: 2024:KHC:33502 MFA No. 1817 of 2019

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I am inclined to enhance the compensation awarded by the Tribunal under the head of 'pain and sufferings' from Rs.50,000/- to Rs.60,000/- and under the head of 'loss of amenities, food, nourishment, conveyance and attendant charges’ ' from Rs.20,000/- to Rs.50,000/- .

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Although the evidence of the doctor suggests that the claimant requires approximately Rs.60,000/- to Rs.70,000/- for removal of implants, the claimant has not provided any estimate for future surgery. Considering the nature of the injuries and the evidence of the doctor, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'future medical expenses' from Rs.15,000/- to Rs.35,000/-.

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Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.

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11 - NC: 2024:KHC:33502 MFA No. 1817 of 2019

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16. Thus, the claimant is entitled to the following

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compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	50,000	60,000
Medical expenses	312,900	312,900
Loss of amenities, food, nourishment, conveyance and attendant charges	20,000	50,000
Loss of income during laid up period	32,000	55,000
Loss of future income	295,680	406,560
Future medical expenses	15,000	35,000
Total	725,580	919,460

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In the result, the following order is passed:

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ORDER

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a) The appeal is allowed in part .

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b) The judgment of the Claims Tribunal is modified.

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c) The claimant is entitled to a total compensation of Rs.919,460/-.

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12 - NC: 2024:KHC:33502 MFA No. 1817 of 2019

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d) Following the judgment of the Division Bench of this Court in the case of ‘MS.JOYEETA BOSE’ (supra) , the enhanced compensation shall carry interest at 6% per annum.

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e) The Insurance Company is directed to deposit the compensation amount along with interest from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment. However, interest shall not be applicable to the compensation awarded under the head of 'future medical expenses'.

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Sd/(H.T. NARENDRA PRASAD) JUDGE

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List No.: 1 Sl No.: 62

Sri. Ambarish @ Amresh v. the Manager

Case brief

What is this about?

What did the court decide?

Sri. Ambarish @ Amresh v. the Manager

Case brief

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