Partly allowed

Sri Munivenkatappa v. the New India Assurance Company Ltd.

Karnataka HC11 Jan 2024MFA/3056/2021

Case brief

AI extract

What is this about?

In this Miscellaneous First Appeal, the High Court enhanced the compensation awarded by the Motor Accident Claims Tribunal for a motor vehicle accident. The court increased the claimant's notional income, adjusted disability percentages, and added amounts for pain, amenities, and attendant charges, raising the total award from ₹3,11,200 to ₹5,46,346.

What did the court decide?

The appeal was allowed in part; the Tribunal's order was modified to increase the total compensation to ₹5,46,346, subject to interest at 6% per annum.

Sri Munivenkatappa Vs the New India Assurance Company… — Medical Negligence | Karnataka HC (2024)

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NC: 2024:KHC:1522 MFA No. 3056 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^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. 3056 OF 2021 (MV-I)

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BETWEEN:

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SRI.MUNIVENKATAPPA, S/O BUDDANNA, AGED ABOUT 58 YEARS, R/AT THIMMAPURA VILLAGE, KYASAMBALLI POST, BANGARAPET TALUK, KOLAR DISTRICT – 563 121.

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…APPELLANT

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(BY SRI. GIRIMALLAIAH., ADVOCATE)

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AND:

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Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

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THE NEW INDIA ASSURANCE COMPANY LTD., T.P.HUB, NO.9/2, II FLOOR, MAHALAKSHMI CHAMBERS, M G ROAD, BANGALORE – 560 001. BY ITS MANAGER.

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SRI. NARENDRA BABU C, S/O CHANDRAPPA, MAJOR (AGE NOT KNOWN TO APPELLANT), KANNUR VILLAGE, KANGANDALHALLI POST, BANGARPET, KOLAR DISTRICT – 563 121.

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…RESPONDENTS

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(BY SRI.V.RAJASHEKHARA REDDY, ADVOCATE FOR R1; R2 – SERVICE OF NOTICE DISPENSED WITH)

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NC: 2024:KHC:1522 MFA No. 3056 of 2021

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.03.2021 PASSED IN MVC NO.6840/2018 ON THE FILE OF THE VII ADDITIONAL SCJ AND ACMM, MEMBER, MACT-3, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION 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 02.03.2021 passed in MVC.No.6840/2018 by Motor Accident Claims Tribunal, 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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On 26.08.2018 at 5.15 p.m., the claimant along with

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another person was driving on motor cycle bearing registration No.KA03-EX-6568. When they reached near Lokanaidu Bricks

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3 - NC: 2024:KHC:1522 MFA No. 3056 of 2021

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Factory, KGF Taluk, Kolar District, at that time, a Indica car bearing registration No.KA-13-N-1380 came in a rash and negligent manner and dashed against the motor cycle of the claimant, in which he was a pillion rider. Due to the impact of the accident, the rider and the pillion rider fell down and suffered severe injuries. The present appeal is by the pillion rider in M.V.C.No.6840/2018. It is claimed that prior to the occurrence of the accident, the claimant was hale and healthy, working as an agriculturist, earning Rs.15,000/- per month. Immediately after the accident, he was taken to R.L.Jalappa Hospital, where he was inpatient and underwent surgeries for the injuries suffered.

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3.2 The respondent No.1 filed statement of objection,

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denied the claim made by the claimants including the age, avocation and income and pleaded that the accident occurred due to the negligence of the claimants rather than that of the rider of the offending vehicle and sought for dismissal of the claim petition. The respondent No.2 also took similar plea as taken by respondent No.1 and sought for dismissal of the claim petition.

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NC: 2024:KHC:1522 MFA No. 3056 of 2021

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

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3.4. In order to substantiate the issues and to establish

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the case, the claimant got examined himself as PW.2 as common evidence was adduced and got marked documents as Ex.P9 to P13. The Doctor came to be examined as PW3 through whom the documents i.e., Ex.P15 and Ex.P18 came to be marked. On the other hand, respondent No.1 examined its company official as RW1 and got marked documents as Ex.R1 to Ex.R5.

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3.5. Based on the material evidence both oral and

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documentary and on hearing the learned counsels for both the parties, the tribunal awarded a total compensation of Rs.3,11,200/- along with interest at 6% per annum holding respondent Nos.1 and 2 jointly and severally to pay the compensation and directed respondent No.1 - insurance company to pay the compensation in view of subsistence of the policy.

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NC: 2024:KHC:1522 MFA No. 3056 of 2021

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3.6. Being aggrieved by the meager compensation

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amount awarded by the tribunal, the claimant is before this Court seeking enhancement of compensation.

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It is the vehement contention of learned counsel for the appellant - claimant that the tribunal has committed an error in not considering the material evidence both oral and documentary and has awarded meager compensation. The tribunal has also ignored the evidence of the Doctor - PW3 who has opined that there is a disability to an extent of 19% and has reduced the disability to 10% without there being any basis. The tribunal has not awarded suitable compensation under other heads including pain and suffering, loss of amenities and loss of income during laid up period. The tribunal has failed to take into consideration the period of 65 days during which the claimant was inpatient and so also the fact that the claimant is suffering from disability, discomfort and pain over the right thigh and discharging of sinus over the right thigh and still the claimant continues to take treatment. He further contends that the tribunal has ignored the fact that the

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NC: 2024:KHC:1522 MFA No. 3056 of 2021

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claimant has undergone three surgeries and hence, seeks for enhancement of compensation.

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Per contra, learned counsel appearing for respondent

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No.1 - insurance company contends that the tribunal has awarded just and reasonable compensation in accordance with the material evidence both oral and documentary and the same does not call for interference. He further contends that there is no proof of income produced by the claimant. Hence, the tribunal has taken the notional income, which does not call for interference as it is the onus on the claimant to produce proper proof of income. The learned counsel further contends that though the Doctor-PW3 has stated that there is a physical disability of 59% to the right lower limb and 19% to the whole body, the same cannot be taken as a functional disability in view of the fact that the claimant was aged 60 years as on the date of occurrence of the accident and nothing material has been placed before the court to show that there is a functional disability to the extent of 19% to the whole body. Therefore, he contends that the judgment and award passed by the tribunal is just and reasonable and same does not call for interference.

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NC: 2024:KHC:1522 MFA No. 3056 of 2021

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It is not in dispute that on 26.08.2018, the claimant while traveling as a pillion rider along with another person, met with an accident involving the offending vehicle i.e., Indica Car.

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To establish this aspect of involvement of the vehicle, negligence of the offending vehicle, he has produced Ex.P1 to Ex.P6, which are police records, which effectively establish the fact that the driver of the offending vehicle i.e., Indica car has been implicated in a criminal case by lodging First Information Report and a charge sheet has been laid against him, which is not disputed or challenged by the driver of the offending vehicle. Hence, the negligence is rightly attributed as against the driver of the offending vehicle i.e., Indica car.

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In order to establish that the claimant has sustained injuries, he has produced Ex.P9 to Ex.P13, which effectively establishes the injuries sustained by the claimant at 1 to 3 are simple in nature and injuries at 4 to 5 are grievous in nature. The tribunal has taken the income of the claimant to be Rs.8,500/for computation of compensation. I am in agreement with the learned counsel for the appellant - claimant that the income assessed by the tribunal is on the lower side, as the accident occurred in the year 2018, the notional income

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as per the legal services authority chart is Rs.12,500/- per month. The same is taken as income in the present case as against Rs.8,500/- adopted by the tribunal. The claimant being aged 60 years, the appropriate multiplier would be '9', which is rightly taken and the same is not interfered. The Doctor - PW3 has assessed the physical disability to the extent of 19% to the whole body. The tribunal and this court will have to assess the functional disability based on the injuries sustained and the avocation of the claimant. In the present case, the claimant being aged 60 years doing agricultural work, which is also not been established by producing any cogent material, the assessment of functional disability could be taken at 15% instead of 19%. Therefore, the loss of income due to disability would be [12,500 x 12 x 9 x 15] Rs.2,02,500/- as against Rs.91,800/- awarded by the tribunal.

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(i) Towards pain and agony, the tribunal has awarded a compensation of Rs.50,000/-. I deem it appropriate to award another Rs.25,000/- under this head.

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(ii) Towards medical expenses, the tribunal has awarded a compensation of Rs.93,846/- on the basis of the

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NC: 2024:KHC:1522 MFA No. 3056 of 2021

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actual bills produced by the claimant, which does not call for interference.

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(iii) Towards loss of amenities and nutritious and food, the tribunal has awarded a compensation of Rs.25,000/-. I am in agreement with the learned counsel for the claimant that it is on the lower side. Hence, an additional amount of Rs.25,000/is awarded under this head.

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(iv) Towards attendant charges and conveyance, the tribunal has awarded a compensation of Rs.25,000/-. I deem it appropriate to award an additional amount of Rs.25,000/under this head.

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(v) Towards loss of income during laid up period, the tribunal has awarded a compensation of Rs.25,500/-, which is on the lower side. In view of this court enhancing the income to Rs.12,500/- per month and the claimant being inpatient for 64 days, if 4 months is taken as a period of recuperation to get back to normal day to day work, plus an additional 2 months of being inpatient, 6 months is required to be calculated as no income period. Accordingly, [12,500 x 6] Rs.75,000/- is awarded under this head.

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NC: 2024:KHC:1522 MFA No. 3056 of 2021

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In view of the above discussion, the claimant would

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be entitled to a total compensation of Rs.5,46,346/- as against Rs.3,11,200/- as mentioned in the table below:

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Heads	Amount in Rs.
Loss of future income	2,02,500-00
Pain and suffering	75,000-00
Medical expenses	93,846-00
Loss of amenities and nutritious food	50,000-00
Attendant charges and conveyance	50,000-00
Loss of income during laid up period	75,000-00
TOTAL	5,46,346-00

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(l) 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 02.03.2021 passed in MVC.No.6840/2018 by Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru, is modified;

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iii) The claimant is entitled to a total compensation of Rs.5,46,346/- as against Rs.3,11,200/- awarded by the tribunal along with interest @ 6% p.a. from the date of

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11 -

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NC: 2024:KHC:1522 MFA No. 3056 of 2021

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petition till realization; . All other terms and conditions of the tribunal stands intact.

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iv) The entire compensation amount shall be paid by the respondent within a period of six weeks from the date of receipt of a copy of this order;

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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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SS List No.: 1 Sl No.: 47

Sri Munivenkatappa v. the New India Assurance Company Ltd.

Case brief

What is this about?

What did the court decide?

Sri Munivenkatappa 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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Issues for consideration

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