Partly allowed

Sri. Mallikarjuna T v. Vs Smt. N Radha

Karnataka HC18 Jan 2024MFA/3042/2021

Case brief

AI extract

What is this about?

Claimant injured when a tractor-trailer dashed his motorcycle sought enhancement of compensation. The High Court raised notional income to Rs.11,000 p.m., enhanced loss of future earnings to Rs.4,75,200 and added amounts under pain and suffering, nourishment and amenities heads, awarding Rs.7,58,200 with 6% interest.

What did the court decide?

Compensation enhanced to Rs.7,58,200 with 6% interest; balance payable by insurer within four weeks.

Sri. Mallikarjuna T v Vs Smt. N Radha — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:2381 MFA No. 3042 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO. 3042 OF 2021 (MV-I)

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BETWEEN:

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SRI. MALLIKARJUNA T V S/O T.Y. VENKATSH @ VENKATESHAPPA, NOW AGED ABOUT 23 YEARS, RESIDING AT THOTI VILLAGE AND POST, KOLAR TALUK AND DISTRICT.

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…APPELLANT

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(BY SRI. GOPAL KRISHNA N., ADVOCATE)

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AND:

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SMT. N. RADHA W/O LATE M. SHIVANNA, NOW AGED ABOUT 55 YEARS, RESIDING AT VINOBHA VOLONY, CHINTHAMANI TALUK, CHIKKABALLAPURA DISTRICT-563125.

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Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

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M/S UNITED INDIA INSURANCE COMPANY LTD., REGIONAL OFFICE, 5TH FLOOR, KRUSHI BHAVANA, NRUPATHUNGA ROAD, HUDSON CIRCLE, BENGALURU-560001 BY ITS MANAGER.

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…RESPONDENTS (BY SRI. K. NAGARAJAIAH, ADVOCATE FOR R-2; NOTICE TO R-1 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 14.10.2019

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NC: 2024:KHC:2381 MFA No. 3042 of 2021

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PASSED IN MVC NO.7126/2017 ON THE FILE OF THE MEMBER, MACT, XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU SCCH-4, 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 14.10.2019 in MVC.No.7126/2017 passed by XVIII Additional Judge, Member MACT, Court of Small Causes, Bengaluru (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 is as under:

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The claimant was riding his TVS Pheonix motorcycle bearing registration No.KA-07-X-7407 when he reached near Ankathatti village Gate on Rajakallahalli-Chitnahalli

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NC: 2024:KHC:2381 MFA No. 3042 of 2021

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Road, Kolar taluk, at that time the driver of Tractor and Trailer bearing registration No.KA-40-TZ-0225 and KA-40TA-0226 came from opposite direction in a rash and negligent manner so as to endanger human life and safety lost control over the vehicle and dashed against the motorcycle of the claimant. Due to the impact of the vehicle the claimant fell down and sustained grievous injuries to his head and other parts of the body. The claimant was shifted to R.L.Jalappa Hospital, Kolar, wherein he took treatment as first aid and thereafter shifted to Pulse Hospital, Bengaluru. The claimant was examined and found to be defuse axonal injury and with multiple fracture. He was treated as inpatient and discharged on 08.04.2017. He was subsequently admitted again on 10.04.2017 at SNR Government Hospital, Kolar and again he was inpatient till 18.05.2017. It is stated that claimant incurred financial expenditure to an extent of more than Rs.1,00,000/-, due to the injuries suffered he has encountered emotional and physical disability. He was hale and healthy prior to accident earning Rs.15,000/-

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p.m., as a Caterer. Due to occurrence of the accident, the injuries sustained permanent disability, unable to do his work as he was prior to occurrence of accident. On the basis of complaint, a criminal case is registered against the driver of the Tractor and Trailer for the offence punishable under Sections 279 and 337 of IPC. Hence, the claim petition came to be filed by the claimant.

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Respondent No.1 remained exparte, despite service of notice. Respondent No.2 filed detail statement of objections denying the allegations made in the claim petition including the issuance of policy to the offending vehicle and the negligence attributed to the driver of the offending vehicle, also denied the age, avocation and income stated by the claimant and sought for dismissal of the claim petition.

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

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NC: 2024:KHC:2381 MFA No. 3042 of 2021

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In order to substantiate the issue and to

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establish the case, the claimant got examined himself as PW.1 and got marked Exs.P.1 to 12. He got examined doctor as PW.2 and marked Ex.P.13 and 14 whereas the respondent did not adduce any evidence.

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On the basis of material evidence, both oral and documentary the tribunal has awarded total compensation of Rs.6,05,000/- with interest @ 6% p.a. and directed

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respondent No.2-insurance company to pay the compensation within 30 days from the date of order.

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This judgment and award questioned as the

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claimant is aggrieved by the meager compensation awarded by the tribunal.

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It is the vehement contention of the learned counsel for the appellant/claimant that the tribunal has committed serious error without taking into consideration

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the proper income of the claimant, so also the disability assessed by the doctor has not been considered properly

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NC: 2024:KHC:2381 MFA No. 3042 of 2021

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by the Tribunal. It is also contended that on other heads also the tribunal has awarded meager compensation which calls for enhancement. Hence, he seeks to allow the appeal and consequently to enhance the compensation.

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Per contra, learned counsel representing the

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insurance company vehemently contends that there is no error or illegality committed by the Tribunal. It has awarded just and reasonable compensation on the basis of material placed on record. Admittedly, there is no proof of income placed by the claimant. Hence, tribunal has rightly assessed the income to be Rs.10,000/- p.m which does not call for interference. He also contends that on other heads the Tribunal awarded suitable compensation which also does not call for interference. Hence, he seeks to dismiss the appeal.

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It is not in dispute that the accident occurred in the year 2017, when the claimant was riding his motorcycle TVS Phoenix and Tractor and Trailer came from the opposite direction and dashed against this vehicle. To

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NC: 2024:KHC:2381 MFA No. 3042 of 2021

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establish this fact the claimant has produced the police records i.e., Exs.P.1 to 7 which apparently exhibits the filing of FIR against the driver of the offending vehicle so also laying of charge sheet against him. This evidence the fact that the same criminal prosecution has not been challenged by the driver of the offending vehicle. Hence, negligence is attributed against the driver of the vehicle. Exs.P.8 to 14 are the medical records produced by the claimant to show the medical treatment taken and financial expenditure met by him.

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Now coming to the aspect of age, avocation, it

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is seen that the claimant is aged 19 years as on the date of accident and appropriate multiplier would be '18', which is rightly assessed by the Tribunal and same does not call for interference. The Tribunal has taken the income at Rs.10,000/- to be notional income in view of no documentary proof placed before by the claimant and the Tribunal on the basis of evidence of doctor-PW.2 assessed the disability to an extent of 20% as PW.2 has not clearly

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elicited or opined with regard to the disability to the whole body. Apart from stating that there is permanent global neurological disability of 59%, till date no documents are placed before this Court to show as the claimant has taken any further treatment due to neurological disability suffered due to the occurrence of the accident. The legal services authority chart prescribe the notional income of Rs.11,000/- for the accident year 2017 in the case where no proof of income is produced. In the present case Rs.11,000/- is taken as notional income. Therefore, loss of earning capacity due to disability would be (Rs.11,000 X 12 X 18 X 20%) = Rs.4,75,200/- as against Rs.4,32,000/- awarded by the Tribunal.

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Towards pain and sufferings the tribunal has awarded Rs.40,000/-. I deem it appropriate to award an additional amount of Rs.20,000/- under this head.

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The Tribunal has awarded a sum of Rs.53,000/towards medical expenses which is on the actual bills produced and same does not call for interference.

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NC: 2024:KHC:2381 MFA No. 3042 of 2021

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Towards loss of income during laid up period the tribunal has awarded a sum of Rs.50,000/- which is also not disturbed.

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Towards food, nourishment and attendant charges the tribunal has awarded a sum of Rs.40,000/-. The claimant was inpatient for 40 days. Hence, I deem it appropriate to award an additional amount of Rs.20,000/under this head.

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Towards loss of future amenities and happiness the tribunal has awarded a sum of Rs.40,000/- which is on lower side. Hence, additional amount of Rs.20,000/- is awarded under this head.

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In view of the above, the claimant would be entitled to a total compensation of Rs.7,58,200/- as

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against Rs.6,05,000/- as mentioned in the table below:

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Heads	Amount in Rs.
Loss of future earnings	4,75,200-00
Pain and suffering	60,000-00

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NC: 2024:KHC:2381 MFA No. 3042 of 2021

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Loss of income during treatment	50,000-00
Medical expenses	53,000-00
Towards food, nourishment and	60,000-00
attendant charges
Loss of amenities	60,000-00
TOTAL	7,58,200-00

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Accordingly, I pass the following:

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ORDER

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i) The appeal is allowed-in-part;

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ii) The judgment and award dated 14.10.2019 passed in MVC.No.7126/2017 by XVIII Additional Judge, Member MACT, Court of Small Causes, Bengaluru, is modified;

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iii) The claimant is entitled to a total compensation of Rs7,58,200 /- as against Rs.6,05,000/awarded by the tribunal along with interest @ 6% p.a. from the date of petition till realization and other terms and conditions stipulated by the Tribunal stands intact.

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iv) The balance compensation amount with interest @ 6% shall be paid by the respondent –

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NC: 2024:KHC:2381 MFA No. 3042 of 2021

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insurance company within a period of four weeks from the date of receipt of a copy of this

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order; and

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v) The original records shall be transmitted to the jurisdictional tribunal forthwith.

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Sd/JUDGE

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SKS

Sri. Mallikarjuna T v. Vs Smt. N Radha

Case brief

What is this about?

What did the court decide?

Sri. Mallikarjuna T v. Vs Smt. N Radha

Case brief

What is this about?

What did the court decide?

What the court decided

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