Partly allowed

Smt M Manjula v. M/S Icici Lombard Gen. Insurance Co. Ltd.

Karnataka HC20 Jan 2024MFA/2867/2014

Case brief

AI extract

What is this about?

Claimant, a tailor who lost her right leg above the knee in a bus-motorcycle accident, appealed for enhancement of compensation. The court took disability at 50% and income at Rs.6,500 per month, enhanced compensation under several heads and partly allowed the appeal.

What did the court decide?

Compensation enhanced by Rs.4,56,500/- to total Rs.11,83,135/- with interest as ordered by Tribunal; rest of Tribunal's order on liability and deposit unaltered.

Smt M Manjula Vs M/S Icici Lombard Gen. Insurance Co. Ltd. — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:2905-DB MFA No. 2867 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF JANUARY, 2024

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PRESENT

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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MISCELLANEOUS FIRST APPEAL NO.2867 OF 2014(MV-I)

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BETWEEN:

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Smt. M. Manjula W/o. Muniraju N, Aged 30 years, R/o #1712, 7^th Cross, Sanjeevininagar, Bangalore North, Bangalore-562 092. .. Appellant

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(By Sri. K.V. Shyamaprasada, Advocate) AND:

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Digitally signed by BANGALORE MADHAVACHAR VEENA Location: High Court of Karnataka

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M/s. ICICI Lombard Gen. Insurance Co. Ltd., No.89, 2^nd Floor, S V R Complex, Hosur Main Road, Madivala, Bangalore-560 068 Represented by its Manager.

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Y.N. Srinivas S/o. Late Narayanaswamy, Major, Behind T.B. Indianagara, Chikkaballapura Town, Chikkaballapur Taluk and District-562101. …Respondents

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NC: 2024:KHC:2905-DB MFA No. 2867 of 2014

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(By Sri. Mallikarjuna Reddy N.A., Advocate for Sri. B.Pradeep, Advocate for R-1; Notice to R-2 is dispensed with vide Order dated 08.01.2015)

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This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicles Act,1988 praying to call for the records and set aside the award passed by Motor Accident Claims Tribunal, Bangalore, in M.V.C.No.5992/2011 dated 07-01-2014 by allowing the appeal in enhancing the award of the Tribunal and in the interest of justice and equity.

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This Miscellaneous First Appeal coming on for Admission through Physical Hearing/Video Conferencing this day, Dr.H.B.Prabhakara Sastry, J., delivered the following:

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JUDGMENT .

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The present appeal is filed by the claimant under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the learned X Addl.Senior Civil Judge and XXXV Addl.Chief Metropolitan Magistrate, Motor Accidents Claims Tribunal, Bengaluru, (hereinafter for brevity referred to as ‘the Tribunal’), in its judgment and award dated 07.01.2014, in M.V.C.No.5992/2011.

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The summary of the case of the present appellant as claimant before the Tribunal was that, on the date 25.06.2011, at about 2.00 p.m., when the claimant

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as a pillion rider was going along with one Sri Muniraju, the rider of the Hero Honda Splendor motorcycle bearing registration No.KA-40-K-3322 on Gowribidanuru road, Chikkaballapura town, a motor vehicle Bus bearing registration No.KA-40-1872 being driven by its driver in a rash and negligent manner and coming from Chikkaballapura side, dashed to the motorcycle upon which the claimant was a pillion rider. As a result of the said road traffic accident, both the riders of the motorcycle, including the claimant, fell down and upon them, the wheel of the Bus ran over on their right leg, due to which, both the riders of the motorcycle sustained grievous injuries not only on the thigh portion, but, on other parts of the body also.

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The claimant further contends that immediately she was taken to the Government Hospital, Chikkaballapura for treatment and from there for higher treatment, she was shifted to M.S.Ramaiah Hospitals, Bengaluru, wherein she was admitted as an inpatient from

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25.06.2011 to 28.07.2011 and underwent surgeries. She was medically operated and above her right knee at the thigh portion amputation was done on 25.06.2011 and wound debridement with split skin grafting was also done. She was medically advised to take bed rest for a longer time.

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The claimant has further contended that prior to the accident, she was hale and healthy and working in a Cloth Centre and earning a sum of 4,500/- per month. She has spent more than a sum of 10 lakhs towards medical treatment, medicines, conveyance and nourishment. Due to the amputation of right leg, she is unable to lead her normal life and pursue her avocation. Holding the respondent Nos.1 and 2, who are insurer and owner of the offending Bus bearing registration No.KA-401872 respectively as liable, the claimant has claimed in total a compensation of `90 lakhs from them.

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In response to the notice served upon them, both the respondents have entered their appearance through

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their counsels and filed their statement of objections denying the petition averments. The 1^st respondentInsurance Company denied the occurrence of the road traffic accident in the manner as alleged by the claimant in her claim petition. Though they admit that it is the insurer of the Bus bearing registration No.KA-40-1872 and the insurance policy was in force as on the date of the accident, however, it denied the nature of the injuries alleged to have been sustained by the claimant in the accident and her alleged income, disability and its liability to pay the compensation.

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The 2^nd respondent-owner of the Bus has denied that the driver of the Bus was rash and negligent in driving the Bus at the time of the accident. He denied the occurrence of the accident in that particular manner as canvassed by the claimant. However, he contended that the Bus was covered with the insurance at the time of the accident.

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Before the Tribunal, the claimant got herself examined as PW-2 and also examined the rider of the motorcycle Muniraju N. as PW-1 and one Dr.Ravi Kumar as PW-3 and both the claimants got marked documents from Exs.P-1 to P-21. On behalf of the respondents, neither any witness was examined nor any documents were produced.

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After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:

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Sl. No.	Particulars	Amount in`
1	Loss of future income	3,06,000/-
2	Pain and suffering	1,00,000/-
3	Loss of amenities in life	1,00,000/-
4	Medical expenses	66,635/-
5	Towards laid-up period	15,000/-
6	Towards artificial limb	1,00,000/-
7	Towards disfigurement	5,000/-
8	Towards attendant charges, food and nourishment and conveyance charges	34,000/-
	Total	7,26,635/-

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NC: 2024:KHC:2905-DB MFA No. 2867 of 2014

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The Tribunal awarded compensation of a sum of

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7,26,635/- and interest at the rate of 8% per annum is awarded on 6,26,635/-, which is excluding the compensation amount awarded towards artificial limb i.e., 1,00,000/-, from the date of petition till the date of realisation, holding the owner and Insurer jointly and severally liable to pay the said compensation and directed the Insurer to deposit the award amount. It is against the said judgment and award passed by the Tribunal, the claimant has filed this appeal seeking enhancement of compensation.

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The respondent No.1 herein (insurer) is

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represented by its counsel. The notice to respondent No.2 is dispensed with vide order dated 08.01.2015.

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Though this appeal is posted for admission, with

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the consent from both parties, the matter was taken up for arguments on main on merits.

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Records from the Tribunal pertaining to the

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matter were called for and the same are placed before the Court.

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Heard the arguments of learned counsel for the appellant and learned counsel for respondent No.1Insurance Company. Perused the materials placed before this Court, including memorandum of appeal, impugned judgment and also the records of the Tribunal.

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For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Tribunal.

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The learned counsel for the appellants (claimants) in his argument contended that the claimant was working as a Tailor at the time of the accident, however, due to the injuries sustained by her in the accident, she is unable to continue her avocation as a Tailor. Further, the notional income recommended by the Karnataka State Legal Services Authority for the relevant year, which is 2011, was a sum of `6,500/- per month,

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however, the Tribunal was at error in taking the income of the claimant at `5,000/- per month. He contended that the Medical Board has assessed the disability of the claimant at 80% to the right lower limb, whereas, the Tribunal has taken the disability only at 30% to the whole body, as such, the quantification of the compensation towards future loss of income requires to be substantially enhanced. He further contends that the quantum of compensation awarded under other heads are also meager, as such, the appeal deserves to be allowed as prayed.

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Per contra, learned counsel for respondent No.1Insurance Company in his brief argument though fairly conceded that the notional income prevailing for the relevant year 2011 as per the recommendation of the Karnataka State Legal Services Authority is `6,500/- per month, however, vehemently opposed for taking the percentage of functional disability as 100%. He further contended that the compensation awarded under other

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heads by the Tribunal being reasonable, the same does not warrant any interference or modification at the hands of this Court.

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After hearing the learned counsels from both side, the points that arise for our consideration are:

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[i] Whether the appellant is entitled for enhancement in the compensation that has been awarded by the Tribunal?

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[ii] Whether the impugned judgment passed by the Tribunal warrants any interference at the hands of this Court?

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The claimant got herself examined as PW-2, who in her claim petition, as well in her evidence has stated that, at the time of the accident, she was traveling as a pillion rider in a motorcycle bearing registration No.KA-40-K-3322 and one Sri Muniraju, who is the claimant in the connected claim petition in MVC.No.5991/2011, was riding the motorcycle at the time of the accident, in which the present claimant, who is the claimant in MVC.No.5992/2011, was the pillion rider. Both, said Muniraju and the present claimant Smt.Manjula got themselves examined as PW-1 and PW-2 respectively. Both of them have

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reiterated their contentions taken up by them in their claim petition respectively. They contended that the road traffic

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accident in question has occurred solely due to the rash and negligent driving of the Bus bearing registration No.KA-40-1872 by its driver. They further contended that both of them sustained multiple grievous injuries in the road traffic accident.

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In support of their contentions, the claimants got produced and marked the documents from Exs.P-1 to P-21 which inter alia includes, copies of FIR, complaint, scene of offence panchanama, Motor Vehicle Inspector's report, charge sheet, wound certificates and two discharge summaries. Those exhibits, particularly the police documents from Exs.P-1 to P-5 which are not in dispute, corroborates the evidence of PW-1 and PW-2 that the road traffic accident has occurred on the date, time and place and in the manner as contended by the claimants.

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Incidentally, neither of the respondents have entered the witness box and led any evidence nor produced any documents from their side. Furthermore, learned counsel for respondent No.1-Insurance Company fairly concedes that the respondents have not preferred any appeal challenging the impugned judgment and award. Thus, the occurrence of the road traffic accident

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on the date, time and place and in the manner as contended by the claimants and the liability on the part of the respondents and the insurer to pay compensation is not in dispute.

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Further, in the said road traffic accident, the present appellant sustaining injuries and also of the fact that the said road traffic accident occurred at the rash and negligent driving by the driver of the Bus bearing registration No.KA-40-1872, also stands established. Therefore, the question of occurrence of accident and the alleged liability of the respondent-Insurance Company to pay compensation to the injured claimant for the injuries sustained by her in the road traffic accident need not be re-analysed again. As such, the only question that remains to be considered is about the quantification of the compensation, which according to the claimant/appellant is inadequate.

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The evidence of PW-1 and PW-2, which is further corroborated by Exs.P-1 to P-7 and P-12 establishes that

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the road traffic accident as alleged by the claimant in her claim petition has occurred solely due to the rash and negligent driving of the Bus bearing registration No.KA-40-1872, wherein the claimant sustained grievous injuries resulting in the amputation of her right leg above the knee. Since the accident has occurred solely due to the rash and negligent driving of the bus belonging to respondent No.2-owner, which is insured with respondent No.1-Insurance Company and the claimant has sustained injuries in the said road traffic accident, the respondents were rightly held by the Tribunal as jointly and severally liable to pay compensation to the claimant.

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According to learned counsel for the claimant, who was examined as PW-2, she was earning her livelihood by working as a Tailor, but, due to amputation of right lower limb, it has disabled her to continue her avocation any further. Thus, there is total functional disability of 100%, however, the Tribunal has erred in confining the same to 30%.

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Per contra, learned counsel for the Insurance Company contended that mere loss of one lower limb

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would not disentitled a Tailor from pursuing his/her avocation since the other lower limb is there to peddle the wheel of the machine and now all the tailoring machines are being used with motor, thus, giving no work to the lower limb. With this, he contends that the percentage of disability considered by the Tribunal is reasonable.

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The claimants got examined PW-3 Dr.Ravi Kumar

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T.V., in their support, who claims himself to be an Orthopedic Surgeon in Department of Orthopedics at M.S.Ramaiah Hospitals at Bengaluru. He has stated that,

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both the riders of the motorcycle, including the claimant, were got admitted to their hospital and he has treated them. After giving the details of the injuries that were sustained by the claimant in the accident, the doctor has stated that the claimant Smt.Manjula was diagnosed to have the following injuries:

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(i) Open type 3b, fracture of lateral condyle femur right side with crushing of knee up to middle of the thigh,

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(ii) Open type 3b fracture fibula proximal shaft on the right side.

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He has further stated that the claimant Smt.Manjula was treated as an inpatient in their hospital, during which period, knee amputation of right thigh was carried out on 25.06.2011 on emergency basis. She was again operated for wound debridement and skin grafting for the right thigh on 12.07.2013. He has further stated that, he has assessed the disability of the said patient Smt.Manjula and has arrived at an opinion that, to the right lower limb, the total disability would come to 90% and to the whole body, it is 90/3=30%.

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The denial suggestions made to him in his cross-examination were not admitted as true by him.

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Learned counsel for the appellant/claimant submits that the said assessment of disability done by PW3 is not correct since the said doctor has not considered

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the functional disability of PW-2. Even otherwise also, the percentage of disability considered by the Tribunal is very much on the lower side. He draws the attention of the Court to Ex.P-17, which is the Disability Certificate issued in favour of the claimant by Medical Board of District Hospital, Chikkaballapura. The said Medical Board has assessed the disability of the claimant at 80%.

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In the circumstances, when considering the avocation of the claimant, who was said to be a Tailor prior to the date of the accident and after considering the medical evidence, we are of the view that the percentage of disability in the instant case is required to be taken at

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50%. Since the Tribunal has confined it to only 30% and taken the notional income at a lesser amount of 5,000/-, when in fact, it ought to have taken at 6,500/- per month, the quantum of compensation towards loss of future income requires a revisit.

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The age of the claimant as at 26 years on the date of the accident is not in dispute, on the other hand,

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the same is corroborated by the medical documents. The multiplier applicable is 17'. Thus, the quantum of compensation towards loss of future income would be 6,500/- x 12 x 17 x50/100 = 6,63,000/-. After deducting a sum of 3,06,000/- awarded by the Tribunal under the said head, the claimant is entitled for a differential enhanced amount of `3,57,000/- under the said head.

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The Tribunal has award compensation of a sum of 1,00,000/- towards pain and suffering'. For the injuries sustained by the claimant and considering the long period of her stay in the hospital, which was for thirtyfour days, we are of the view that the quantum of compensation awarded towards `pain and suffering' being reasonable and the same does not warrant any interference by this Court.

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Due to the loss of her right lower limb, even though the claimant has suffered the loss of amenities of her life, but, the same was considered by the Tribunal

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reasonably and a sum of `1,00,000/- has been awarded as compensation under the said head. As such, the same does not warrant any interference at the hands of this Court.

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It is after considering the sixtyfive medical bills and the prescriptions produced by the claimant and got marked as exhibits, the Tribunal has granted a total compensation of a sum of `66,635/- as compensation towards the medical expenses, which is the actuals and the same does not warrant any interference at the hands of this Court.

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According to the claimant, she was inpatient in the hospital for a period of thirtyfour days, however, including bed rest. The Tribunal has taken the total laid up period as three months. Since the income of the claimant is taken at 6,500/- per month, for a period of three months, the total amount would comes to 19,500/-. After deducting a sum of `15,000/- awarded by the

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Tribunal, the claimant is entitled for the differential amount of `4,500/- under the said head.

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According to PW-3, the doctor and PW-2, the claimant, she is required to have an artificial limb for the amputated right leg. The estimation given by the artificial limb provider, which is at Ex.P-13, shows the total expense for artificial limb would be a sum of 2,15,150/-. The Tribunal has awarded compensation of a sum of `1,00,000/towards the same. However, after considering the description of the different parts of the artificial limb and other incidental charges shown in Ex.P-13, we are of the view that the said estimation is on

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the higher side, but, at the same time, the amount awarded by the Tribunal at 1,00,000/- is on the lower side. As such, the claimant is entitled for a sum of 50,000/- towards compensation for the artificial limb, thus, making it in total a sum of `1,50,000/-.

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Towards disfigurement, the Tribunal has awarded compensation of a sum of `5,000/-. Needless to say that

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NC: 2024:KHC:2905-DB MFA No. 2867 of 2014

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the claimant was aged only 26 years as on the date of the accident and she was a lady. Being a lady, amputation

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of her right leg has affected her physic and figure. As such, the compensation awarded by the Tribunal appears to be very much on the lower side and deserves enhancement of a sum of 45,000/-, thus, making it to a total sum of 50,000/-.

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The compensation awarded by the Tribunal towards attendant charges, food and nourishment and conveyance charges at `34,000/- is being reasonable, the

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same does not warrant any interference at the hands of this Court.

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Barring the above, the claimant/appellant is not entitled for compensation under any other heads or for enhancement of compensation under any other heads. Thus, in total the appellant is entitled for the modified compensation as below :

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Sl. No.	Particulars	Amount in`
1	Loss of future income	6,63,000/-
2	Pain and suffering	1,00,000/-
3	Loss of amenities in life	1,00,000/-
4	Medical expenses	66,635/-
5	Loss of income during laid up period	19,500/-
6	Towards artificial limb	1,50,000/-
7	Towards disfigurement	50,000/-
8	Towards attendant charges, food and nourishment and conveyance charges	34,000/-
	Total	11,83,135/-

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Since the Tribunal has awarded a sum of `7,26,635/-

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only, the appellant/claimant is entitled for an enhancement of a sum of `4,56,500/- in addition to what is awarded by the Tribunal. It is for this enhancement amount only, the present appeal deserves to be allowed in part.

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Accordingly, we proceed to pass the following:

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ORDER

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[i] The appeal filed by the claimant stands

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allowed in part;

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NC: 2024:KHC:2905-DB MFA No. 2867 of 2014

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[ii] The impugned judgment and award passed by the learned X Addl.Senior Civil Judge

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and XXXV Addl.Chief Metropolitan Magistrate, Motor Accidents Claims Tribunal, Bengaluru, dated 07.01.2014, in M.V.C.No.5992/2011, is hereby modified to the extent that the compensation awarded at 7,26,635/is enhanced by a sum of 4,56,500/- (Rupees Four lakhs Fiftysix thousand five hundred only) thus fixing the total compensation at `11,83,135/(Rupees Eleven Lakhs Eightythree Thousand One Hundred Thirtyfive only).

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[iii] The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and directing the respondent No.2 - Insurance Company to deposit the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded shall remain unaltered.

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Draw the modified award accordingly.

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Registry to transmit a copy of this judgment along with records to the concerned Tribunal without delay.

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Sd/JUDGE

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Sd/JUDGE

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bk/ List No.: 1 Sl No.: 38

Smt M Manjula v. M/S Icici Lombard Gen. Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Smt M Manjula v. M/S Icici Lombard Gen. Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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