Partly allowed

Sri. Harish R v. the Manager, Tata Aig General Insurance Co. Ltd.

Karnataka HC18 Jan 2024MFA/3124/2021

Case brief

AI extract

What is this about?

Claimant injured in a 2018 road accident sought enhancement of tribunal award. Court raised notional income to Rs.12,500, retained multiplier and disability, enhanced heads of compensation, and awarded total Rs.5,93,548 with 6% interest against Rs.4,19,650 awarded earlier.

What did the court decide?

Total compensation enhanced to Rs.5,93,548 with 6% p.a. interest payable by insurer within four weeks; judgment and award modified.

Sri. Harish R Vs the Manager, Tata Aig General… — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:2625 MFA No. 3124 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^TH DAY OF JANUARY, 2024 BEFORE THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO. 3124 OF 2021 (MV-I)

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BETWEEN:

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SRI HARISH R. S/O.RAMAKRISHNA AGED ABOUT 28 YEARS R/AT NO.52, NERALUR POST LAXMI SAGARA BENGALURU-562 107

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…APPELLANT

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(BY SRI K.V.NAIK, ADVOCATE) AND:

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THE MANAGER

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TATA AIG GENERAL INSURANCE CO.LTD. NO.69, 2^ND FLOOR

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J.P. AND DEVI JAMBUKESHWAR ARCADE MISSION ROAD BENGALURU-560 062

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Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

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MR.BALACHANDRA G.S. S/O.SAMPANGIRAMAIAH @ RAMAIAH R/AT GANALUDODDI GIRENAHALLI POST, HAROHALLI KANAKAPURA TALUK RAMANAGARA DISTRICT

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…RESPONDENTS

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(BY SRI Y.P.VENKATAPATHI, ADVOCATE FOR R-1; NOTICE TO R-2 IS DISPENSED WITH V/O/D. 23.03.2023)

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THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 09.04.2021 PASSED IN MVC

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NC: 2024:KHC:2625 MFA No. 3124 of 2021

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NO.1952/2019 BY VII ADDITIONAL SMALL CAUSES JUDGE AND ACMM, MEMBER, MACT-3, BENGALURU AND ETC.

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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 09.04.2021 passed in MVC.No.1952/2019 by the Court of VII Additional Small Causes Judge and ACMM, Member, MACT3, Bengaluru (for short ‘the tribunal’). The appeal is preferred 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

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their status before the tribunal.

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Brief facts of the case is as under:

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On 10.12.2018 at about 1.30 p.m., the claimant was

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proceeding on a motor bike bearing registration No.KA-50E-1732 on Maralavadi-Kanakapura Road, near Bande

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Village, during which time, a Maruthi Swift Car bearing registration No.KA-42-M-1996 driven by its driver in a rash and negligent manner came from opposite direction

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NC: 2024:KHC:2625 MFA No. 3124 of 2021

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and dashed against the vehicle of the claimant. Due to the impact, the claimant fell down and sustained fracture shaft

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of right femur and other injuries. He was shifted to Kanakapura Government Hospital and after first aid, he was shifted to the Oxford Medical College Hospital and Research Centre, wherein, he took treatment as an inpatient and underwent surgery. He has spent huge amount for his treatment and other incidental charges.

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3.1 It is stated that the claimant was hale and

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healthy prior to the occurrence of accident. He was working as a Barber and earning Rs.22,000/- per month. Due to the injuries sustained in the accident, he is disabled permanently and he is not able to earn as he was prior to the accident. Hence, he filed a claim petition seeking compensation for the injuries sustained and trauma due to occurrence of accident.

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3.2 On service of notice, respondent No.1 appeared

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through its counsel and filed the written statement, whereas, respondent No.2 remained absent and was

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NC: 2024:KHC:2625 MFA No. 3124 of 2021

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placed ex parte . Respondent No.1-Insurance Company admitted issuance of policy, but pleaded that the same would be subject to terms and conditions of the policy, who denied the averments made in the claim petition and sought for dismissal of the same.

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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 issue and to

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establish the case, the claimant got examined himself as PW.1, a witness as PW.2 and the Doctor as PW.3 and got marked documents as Exs.P1 to P17. On the other hand, respondent No.1 neither examined any witness nor got marked any documents.

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3.5 On the basis of material evidence produced by

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the parties, the tribunal awarded the compensation of Rs.4,19,650/- with interest @ 6% p.a. and held that respondent Nos.1 and 2 are jointly and severally liable to pay the compensation and directed respondent No.1Insurance Company to pay the compensation.

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5 - NC: 2024:KHC:2625 MFA No. 3124 of 2021

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3.6 Being aggrieved by the meager compensation 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 appellant-claimant that the tribunal has committed an error in awarding meager compensation. The tribunal has wrongly assessed the income of the claimant without taking into consideration the evidence adduced. On these grounds, he seeks enhancement of the compensation awarded by the tribunal.

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Per contra , learned counsel for respondentInsurance Company vehemently contends that there is no error or illegality committed by the tribunal, as the tribunal has awarded just and reasonable compensation based on the material evidence placed on record. He also contends that the tribunal has assessed the income correctly, in view of the fact that no cogent and sufficient proof of income has been placed by the claimant. Therefore, the tribunal is right in assessing the income and

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NC: 2024:KHC:2625 MFA No. 3124 of 2021

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so also, awarding compensation under other heads, as there is no illegality and arbitrariness in awarding suitable compensation. On these grounds, he seeks for dismissal of the appeal.

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Having heard learned counsel for appellantclaimant and respondent-Insurance Company and perused the impugned judgment and award and evidence adduced by the parties, the occurrence of accident, involvement of vehicle, injuries sustained and disability are not seriously

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disputed. To establish the same, the claimant has produced the documents as Exs.P1 to P6, the Police records, which clearly disclose the laying of FIR and chargesheet against the driver of the offending vehicle, which is not disputed or challenged. Exs.P7 to P17, the medical records clearly indicate the injuries encountered by the claimant pursuant to the occurrence of accident.

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This clearly goes to show that the negligence has been rightly attributed against the driver of the offending vehicle and the same does not call for interference.

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NC: 2024:KHC:2625 MFA No. 3124 of 2021

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Now coming to the age, avocation and income of

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the claimant as on the date of occurrence of accident, the tribunal taken the income of Rs.9,000/- per month, in view of there being no proof of income. However, the Legal Services Authority chart prescribed the notional income of Rs.12,500/- for the accident of the year 2018 and accordingly, the same is taken in this case. The age of the claimant is 26 years as on the date of occurrence of accident. The appropriate multiplier applied by the tribunal is '18', which does not call for interference and the same is retained. The tribunal has assessed the disability at 15% to the whole body as opined by PW.3-Doctor, which does not call for interference. Therefore, the claimant would be entitled to the compensation of Rs.4,05,000/- (Rs.12,500/- x 12 x 18 x 15%) towards loss of future income as against Rs.2,91,600/- awarded by the tribunal.

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The tribunal awarded Rs.25,000/- towards pain and agony. However, this Court deems it appropriate to

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NC: 2024:KHC:2625 MFA No. 3124 of 2021

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award additional amount of Rs.10,000/-. In all,

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Rs.35,000/- is awarded under this head.

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The tribunal awarded Rs.36,048/- towards medical

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expenses, which does not call for interference and the same is retained.

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The tribunal awarded Rs.15,000/- towards loss of amenities and nutritious food. However, this Court deems it appropriate to award additional amount of Rs.15,000/-. In all, Rs.30,000/- is awarded under this head.

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The tribunal awarded Rs.10,000/- towards attendant charges and conveyance. However, this Court deems it appropriate to award Rs.15,000/-. In all, Rs.25,000/- is awarded under this head.

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The tribunal awarded Rs.27,000/- towards loss of income during laid up period. In view of this Court enhancing the income from Rs.9,000/- to Rs.12,500/-, the claimant would require atleast three months period to recuperate and to get back to his normal day to day

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NC: 2024:KHC:2625 MFA No. 3124 of 2021

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activities. Therefore, the claimant would be entitled to

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Rs.37,500/- (Rs.12,500/- x 3) under this head.

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The tribunal awarded Rs.15,000/- towards future medical expenses. However, PW.3-Doctor has deposed that the claimant has to undergo one more surgery in the

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form of implant removal at an approximate cost of Rs.30,000/-. Therefore, this Court deems it appropriate to award Rs.25,000/- under this head.

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In view of the above, the claimant would be entitled to a total compensation of Rs.5,93,548/- as

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against Rs.4,19,650/- as mentioned in the table below:

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Heads	Amount in Rs.
Loss of future income	4,05,000-00
Pain and agony	35,000-00
Medical expenses	36,048-00
Loss of amenities and nutritious food	30,000-00
Attendant charges and conveyance	25,000-00
Loss of income during laid up period	37,500-00
Future medical expenses	25,000-00
TOTAL	5,93,548-00

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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 09.04.2021 passed in MVC.No.1952/2019 by the Court of VII Additional Small Causes Judge and ACMM, Member, MACT-3, Bengaluru, is modified;

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iii) The claimant is entitled to a total compensation of Rs.5,93,548/- as against Rs.4,19,650/awarded by the tribunal;

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iv) The enhanced compensation amount shall be paid with interest @ 6% p.a. by the respondent-Insurance Company within a period of four weeks from the date of receipt of a copy of this order;

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v) The compensation amount shall be released in favour of the appellant-claimant upon proper verification;

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vi) The original records shall be transmitted to the jurisdictional tribunal forthwith;

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vii) All other terms and conditions stipulated by the tribunal shall stand intact.

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Sd/JUDGE

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List No.: 1 Sl No.: 50

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Sri. Harish R v. the Manager, Tata Aig General Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Sri. Harish R v. the Manager, Tata Aig General Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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