Partly allowed

Shri Hemanth Kumar v. the New India Assurance Company Ltd.

Karnataka HC19 Jan 2024MFA/2936/2021

Case brief

AI extract

What is this about?

Claimant injured in an ambulance accident sought enhancement of compensation. The Court raised functional disability from 7.66% to 18%, adopted notional income of Rs.12,500 per month per the Legal Services Authority chart, and enhanced total compensation from Rs.2,99,000 to Rs.6,69,964 with interest.

What did the court decide?

Total compensation enhanced from Rs.2,99,000 to Rs.6,69,964 with 6% interest payable within four weeks; Tribunal award modified.

Shri Hemanth Kumar Vs the New India Assurance… — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:2755 MFA No. 2936 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF JANUARY, 2024 BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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MISCELLANEOUS FIRST APPEAL NO. 2936 OF 2021 (MV-I)

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BETWEEN:

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SHRI HEMANTH KUMAR S/O NAGARAJU AGED ABOUT 30 YEARS R/AT GORAGONANAHALLI MANJUNATHANAGARA TIPTUR TUMKUR DISTRICT - 572 201

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…APPELLANT

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(BY SRI GIRIMALLAIAH.,ADVOCATE)

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AND:

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THE NEW INDIA ASSURANCE COMPANY LTD MOTOR THIRD PARTY HUB NO 9/2, II FLOOR MAHALAKSHMI CHAMBERS M G ROAD BENGALURU - 560 001 BY ITS MANAGER

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Digitally signed by 2. MR MOHANA GAVRIBIDANUR S/O DASARATHRAVA SUBRAMANYA MAJOR GUPTA SREENATH (AGE OT KNOWN TO APPELLANT_) Location: HIGH NO 20 D, BALLEKATTE COURT OF RANGAPURA, KASABA HOBLI KARNATAKA TIPTUR TALUK TUMKUR DISTRICT - 572 226

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…RESPONDENTS (BY SMT.GEETHA R.,ADVOCATE FOR R-1; NOTICE TO R-2 IS DISPENSED WITH)

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NC: 2024:KHC:2755 MFA No. 2936 of 2021

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THIS MFA FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.17.02.2021 PASSED IN MVC NO.3399/2018 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES, MEMBER, PRL. MACT, BENGALURU, (SCCH-1), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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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 appeal is preferred by the appellant-claimant challenging the judgment and award dated 17^th February 2021 passed in MVC.No.3399/2018 by the Chief Judge, Court of Small Causes & Member, Prl. MACT, Bangalore (for short ‘ the Tribunal’ ). This appeal is founded on the premise of inadequate and meager compensation awarded by the Tribunal.

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Parties to the appeal shall be referred to as per their status before the Tribunal.

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Brief facts of the case are as under:

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On 6.4.2018 at about 10.30 p.m. the claimant was traveling in an Ambulance bearing Registration No.KA-44-7934 from Tiptur to Bengaluru alongwith patient. When the Ambulance reached Konana Kaval, Tiptur taluk, the driver of the Ambulance drove the vehicle in a rash and negligent

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3 - NC: 2024:KHC:2755 MFA No. 2936 of 2021

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manner, due to which the Ambulance turned turtle, as a result, the claimant sustained grievous injuries. The claimant was immediately shifted to Government Hospital, Tiptur, where he was provided first aid treatment. Thereafter, he was shifted to Sanjay Gandhi Institute of Trauma and Orthopaedics, wherein he underwent a surgery with external fixation and skin grafting.

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3.1 It is further pleaded that prior to the date of accident, the claimant was doing loading and unloading work and was earning a sum of Rs.15,000/- per month. Due to the accident, the claimant suffered permanent disability and he was not able to do work as he was doing earlier, thereby lost his future income. Hence, the claimant preferred a claim petition seeking compensation.

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3.2 On service of notice, Respondent Nos.1 and 2 appeared through their counsels, filed separate written statements and denied the averments made in the claim petition including age, avocation and income and pleaded that

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the accident occurred due to the negligence of the claimant, who interfered with the driving of the Ambulance by its driver

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NC: 2024:KHC:2755 MFA No. 2936 of 2021

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while taking turn. Therefore, sought for dismissal of the claim petition.

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3.3 On the basis of the pleadings, the Tribunal framed relevant issues for consideration.

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3.4 In order to substantiate the issues and establish the

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case, the claimant got examined himself as PW.1 and the doctor as PW.2 and got marked the documents as per Ex.P1 to Ex.P15. Whereas, the respondents did not lead any evidence nor marked any documents on their behalf.

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3.5 On the basis of the material evidence, both oral and documentary, the Tribunal awarded a total compensation of Rs.2,99,000/- with interest at 6% per annum by holding that Respondent Nos.1 and 2 are jointly and severally liable pay the compensation and directed Respondent No.1 to indemnify the Respondent No.2 and pay the compensation amount within two months.

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3.6 Being aggrieved by the meager compensation awarded by the Tribunal, the claimant is before this Court seeking enhancement of compensation.

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It is the vehement contention of leaned counsel for

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the appellant that the Tribunal committed an error in not awarding just and reasonable compensation. The Tribunal has also failed to take into consideration the opinion expressed by the doctor/PW.2 in the proper perspective. In fact, the doctor assessed permanent disability to right upper limb to be 23%, but not assessed the whole body disability. However, the Tribunal erroneously assessed the whole body disability to be 7.66% and awarded meager compensation under the head of 'loss of future income due to permanent disability'. He also contended that the compensation awarded under other heads is on the lower side and requires enhancement. On these grounds, he seeks for substantial enhancement of compensation.

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Per contra, learned counsel representing the respondent/Insurance Company contends that there is no illegality or perversity in the impugned judgment & award and the Tribunal awarded just and reasonable compensation under all the heads, in accordance with the material evidence, both

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oral and documentary and the same does not call for interference. Learned counsel further contends that the

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claimant has not produced any cogent material in proof of income and therefore, the Tribunal rightly taken the notional income to be Rs.10,000/- per month for computation of loss of future earning due to disability. He further contends that the age of the claimant as on the date of accident was 27 years and the appropriate multiplier is '17' which is rightly taken by the Tribunal and the same does not call for interference. Learned counsel also contends that the doctor assessed the permanent disability to the right upper limb to be 23%, but has not assessed the whole body disability and therefore, the Tribunal rightly assessed the whole body disability to be 7.66%, which does not call for interference. He also contends that under the other heads, the Tribunal awarded just and reasonable compensation, which does not call for interference. On these grounds, he seeks for dismissal of the appeal.

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I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record.

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It is not in dispute that the accident occurred on 6.4.2018 at about 10.30 p.m. when the claimant was traveling

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in the Ambulance and due to the impact of the accident, the claimant suffered grievous injuries as clearly explained by the doctor/PW.2. To substantiate and establish the aspect of negligence and injuries suffered, the claimant has produced Ex.P1 to Ex.P15, the Police records as well as medical records. The police records go to show the involvement of the vehicle, the rashness and negligence on the part of driver of the offending vehicle, which have not been questioned. The medical records go to show the magnitude of the injuries so also the disability suffered by the claimant.

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On perusal of Ex.P8/wound certificate issued by Sanjay Gandhi Institute of Trauma and Orthopaedics, it is seen that the claimant had sustained 'degloving injury of left elbow to left forearm region and x.ray showed comminuted left olecranon and radial head with S.C. fracture humerus, closed left ulna distal 1/3^rd shaft fracture'. The doctor/PW.2 assessed permanent disability to right upper limb to be 23%. The Tribunal assessed the whole body disability to be 7.66%. I am afraid the assessment made by the Tribunal may not be correct as the Tribunal cannot reduce the disability drastically unless there is contrary material placed on record and cogent evidence

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adduced by the respondents by producing the second opinion or any other medical opinion to contradict the statement of the doctor/PW.2 Though the doctor has not specifically assessed the whole body disability, this Court has to consider what is the disability for the claimant to perform the future activities and considering the age, avocation and nature of the job performed by the claimant, this Court assess the functional disability to be 18% in the present case.

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Now coming to the age, income and avocation of the claimant, though the claimant pleaded that he was earning Rs.15,000/- per month, nothing is placed on record to prove the same. The Tribunal has taken the income of the claimant to be Rs.10,000/- per month, whereas the Legal Services Authority chart prescribes the notional income of Rs.12,500/per month for the accident of the year 2018. Accordingly, the same is taken as income for computation in the present case as against Rs.10,000/- awarded by the Tribunal. The age of the claimant as on the date of accident is 27 years. The appropriate multiplier is '17', which is rightly taken by the Tribunal and the same does not call for interference.

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NC: 2024:KHC:2755 MFA No. 2936 of 2021

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In view of the above, the loss of future income due to permanent disability would be Rs.12,500 x 12 x 17 x 18% = Rs.4,59,000/- as against Rs.1,42,800/- awarded by the Tribunal.

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Towards medical expenses, the Tribunal awarded a compensation of Rs.15,964/- on the basis of the actual bills produced by the claimant, which does not call for interference.

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Towards 'pain and suffering', the Tribunal awarded a compensation of Rs.50,000/-, which is on the lower side and I deem it appropriate to award additional Rs.20,000/- under this head.

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Towards loss of income during the period of treatment, the Tribunal awarded a compensation of Rs.40,000/-, which is on the lower side. Considering the magnitude of injuries suffered by the claimant, atleast four months is required to recuperate and get back to normal day to day activities. In view of this Court enhancing the income to Rs.12,500/- per month, Rs.50,000/- (Rs.12,500 x 4) is awarded under this head.

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Towards food, nourishment and conveyance,

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attendant charges and other incidental expenses, the Tribunal awarded Rs.25,000/-. Same is retained.

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Towards loss of amenities, the Tribunal awarded Rs.25,000/-. I deem it appropriate to award additional Rs.25,000/- under this head.

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In view of the above discussion, the appellant/claimant would be entitled to total compensation of Rs.6,69,964/- as against Rs.2,99,000/- awarded by the Tribunal, as mentioned in the table below:

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Sl. No.	Head of compensation	Amount of compensation awarded
1	Pain and suffering	Rs.70,000-00
2	Medical expenses	Rs.15,964-00
3	Loss of income during the period of treatment	Rs.50,000-00
4	Loss of future income due to permanent disability	Rs.4,59,000-00
5	Food, nourishment, conveyance, attendant charges and other incidental charges	Rs.25,000-00
6	Loss of amenities	Rs.50,000-00
	Total	Rs.6,69,964-00

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NC: 2024:KHC:2755 MFA No. 2936 of 2021

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Accordingly, I pass the following:

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O R D E R

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i) The appeal is allowed in part ;

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ii) The appellant/claimant is entitled to total compensation of Rs.6,69,964/- (Rupees six lakhs sixty-nine thousand nine hundred and sixty-four only) as against Rs.2,99,000 awarded by the Tribunal along with interest at 6% per annum from the date of petition till realization.

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iii) The impugned judgment & award passed by the Tribunal in MVC No.3399/2018 is modified accordingly.

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iv) The enhanced compensation amount shall be paid by the respondents with interest at 6% per annum, within a period of four weeks from the date of receipt of copy of this judgment.

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v) The enhanced compensation amount shall be released in favour of the appellant/claimant upon proper verification.

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vi) All other terms and conditions stipulated by the

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Tribunal shall stand intact.

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Sd/JUDGE

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GSS List No.: 1 Sl No.: 55

Shri Hemanth Kumar v. the New India Assurance Company Ltd.

Case brief

What is this about?

What did the court decide?

Shri Hemanth Kumar v. the New India Assurance Company Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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