Partly allowed

Eshwar v. United India Insurance Co.Ltd.

Karnataka HC22 Jan 2024MFA/331/2021

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal concerned a motor vehicle accident claim where the appellant challenged the inadequate compensation awarded. The High Court modified the award, increasing the compensation from Rs. 8,11,000 to Rs. 11,59,000 by enhancing losses for future earning capacity, pain and suffering, loss during laid-up period, food and attendant charges, and loss of amenities.

What did the court decide?

The judgment and award dated 01.02.2020 in MVC No.1603/2019 are modified; compensation enhanced to Rs. 11,59,000 with interest at 6% p.a.

Eshwar Vs United India Insurance Co.Ltd. — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:2969 MFA No. 331 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND 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. 331 OF 2021 (MV-I)

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BETWEEN:

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ESHWAR @ SULEPALLI ESHWARAPPA, S/O SULEPALI THIMMAPPA, AGED ABOUT 29 YEARS, NATIVE OF NO.2-199, C. GOLLAHALLIDODDI, RAYADURGAM, ANATHAPURA, ANDRA PRADESH - 515 885.

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PRESENTLY R/AT: SELEBRETY LAYOUT, BANDENAHALLASANDRA, JIGANI-HO, ANEKAL TQ, BANGALORE DISTRICT.

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…APPELLANT

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(BY SRI. P. SURESH, ADVOCATE)

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Digitally signed by CHAITHRA P Location: High Court of Karnataka

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AND:

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UNITED INDIA INSURANCE CO.LTD., BANGALORE REGIONAL OFFICE, KRUSHIBHAVAN BUILDING, 6TH FLOOR, NRUPATHUNGA ROAD, NER HUDSON CIRCLE, BANGALORE - 560 001. REPT. BY IN CHARGE MANAGER.

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M/S. MARUTHI MANJUNATH, LOGISTICS PVT.LTD., ITS INCHARGE MANAGER/PROPRIETOR, NO.1, NANJAPPA BUILDING, MARUTHI LAYOUT, LAYOUT MAIN ROAD,

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NC: 2024:KHC:2969 MFA No. 331 of 2021

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BEHIND MANYATHA TECH PARK-HAF-POST, DASARAHALLI, BANGALORE - 560 024.

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…RESPONDENTS

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(BY SRI. MOHAN KUMAR T., ADVOCATE FOR R1; VIDE ORDER DATED:19.01.2024, NOTICE TO R2 IS DISPENSED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.02.2020 PASSED IN MVC NO.1603/2019 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 claimant challenging the judgment and award dated 01.02.2020 passed by Motor Accident Claims Tribunal, Bengaluru City (for short ‘the Tribunal’) in MVC No.1603/2019. This appeal is founded on the premise of inadequacy of compensation. Hence, the appellant seeks enhancement of compensation.

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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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That on 13.01.2019 at about 12.00 noon, the claimant proceeding on a Splendor bike bearing No.KA-05HY-7611 as a pillion rider along with another person/rider, when they reached near I road, II main road, Upkar medows, Kyalasanahalli, Jigani, Anekal Taluk, at that time, driver of TATA sumo vehicle bearing No.KA-50-A-3700 came in a rash and negligent manner so as to endanger human life and safety, dashed against the two wheeler of the claimant. Due to impact of the accident, the claimant and the rider fell down suffered serious injuries and the claimant along with the rider were shifted to Vijayashree Multi Speciality Hospital, wherein, first-aid treatment was given and thereafter, to Sanjay Gandhi Hospital, wherein, they took treatment as an inpatient and underwent surgery. The claimant spent more than Rs.2,00,000/towards treatment.

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3.1 It is stated that the claimant was working as Mason and earning a sum of Rs.20,000/- per month. Due to the injuries suffered in the accident, he has suffered

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permanent disability, thereby losing his financial earning prospects, he has suffered mentally, emotionally and undergone pain and agony and trauma. Hence, the claimant filed a claim petition seeking enhancement of compensation.

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3.2 On service of notice, respondent No.1 appeared before the tribunal and filed written statement. Whereas, respondent No.2-owener of the offending vehicle remained absent and he was placed ex parte . Respondent No.1Insurance Company denied the averments made in the claimant petition including age, avocation, income and negligence attributed against the driver of offending vehicle and sought for dismissal of the claim petition.

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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 the case, the claimant got examined himself as PW.1 and common evidence adduced in both cases filed by

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claimants i.e., the pillion rider as well as the rider. Doctor and another doctor as PWs.3 and 4 and got marked documents as Exs.P1 to P28. On the other hand, respondents did not adduce their evidence either orally or documentary.

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3.5 On the basis of material evidence, both oral and documentary and on hearing the submissions of learned counsel for both parties, the tribunal awarded compensation of Rs.8,11,000/- with interest @ 6% p.a. from the date of petition till its realization and also held that respondent No.1 is liable to pay the compensation amount with interest to the claimant and directed to deposit the amount within 30 days.

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3.6 Being aggrieved by the meager compensation awarded by the tribunal, the claimant is before this Court challenging the impugned judgment and award.

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It is the vehement contention of the learned counsel for the appellant-claimant that the tribunal has

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committed a serious error in not awarding suitable compensation under several heads including income, disability, pain and suffering, loss of income during laid up period and loss of amenities etc. It is also contended that the tribunal has taken disability at 25%, which is on the lower side, whereas PW.4-Plastic Surgeon has opined the disability to be 33%, which ought to have been taken by the tribunal for assessment of income and thereby, suitable compensation ought to have been awarded. Accordingly, he seeks to allow the appeal preferred by the claimant and seeks enhancement of compensation.

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Per contra , learned counsel for respondentInsurance Company submits that there is no illegality or perversity in the judgment and award passed by the tribunal. The tribunal has taken the correct income, in view of there being no proof of income produced by the claimant. Accordingly, just and reasonable compensation is awarded. It is further contended that, under other heads also tribunal has awarded just and reasonable

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compensation taking into consideration the magnitude of injuries suffered by the claimant, the same also does not call for interference. In fact, he contends that the tribunal has taken the disability at higher rate of 25%, which requires to be reduced. Therefore, on these grounds, he seeks to dismiss the appeal.

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Having heard the learned counsel for appellant and learned counsel for respondent-Insurance Company, perused the impugned judgment and award, it is not in dispute that the accident occurred on 13.01.2019, when the claimant was proceeding along with the rider, he met with an accident, involving vehicle TATA sumo due to the rash and negligence of the driver of the said TATA sumo vehicle. In order to substantiate these aspects, the claimant has produced Exs.P1 to P28 being police records and the medical records. FIR and charge sheet have been laid against the driver of the offending vehicle, the same is not in dispute neither as the driver challenged this criminal prosecution before any Court. This would clearly indicate

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that the tribunal has rightly fixed the negligence on behalf of the driver of the TATA sumo i.e., offending vehicle, which does not call for interference and with regard to the injuries sustained to claimant, Exs.P8 and 15 clearly evidence the fact of the enormous injuries suffered.

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PWs.3 and 4 have been examined as Orthopedic and Plastic Surgeon on behalf of the claimant to evidence the fact that the claimant has suffered disability to an extent of 55% to right lower limb and 18.33% to the whole body by the PW.3, whereas, PW.4 in his evidence has stated that the disability to an extent of 33% to the whole body. However, the tribunal has taken the disability at 25% considering the evidence of PWs.3 and 4.

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The income taken by the tribunal is Rs.10,000/per month as notional income, no documentary proof is produced before the tribunal to show the income. However, the notional income chart of the Legal Services Authority prescribes the income of Rs.14,000/- for the accident of the year 2019. Accordingly, income is taken as

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Rs.14,000/-. The age of the claimant was 28 years at the time of accident. The tribunal has rightly applied the multiplier at ‘17’, which does not call for interference. Therefore, the loss of future earning capacity due to disability would be Rs.7,14,000/- (Rs.14,000/- x 12 x 17 x 25%) as against Rs.5,10,000/- awarded by the tribunal.

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Learned counsel vehemently argued that the disability to be taken at 33% as opined by PW.4-Doctor. But the tribunal has rightly assessed the disability at 25% taken into consideration the evidence of PWs.3 and 4. I do not find any need to interference with the same.

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Towards pain and sufferings, tribunal has awarded Rs.50,000/-. This Court deems it appropriate to award an additional amount of Rs.40,000/-. In all, the claimant would be entitled to Rs.90,000/- under this head.

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Towards medical expenses, Rs.91,000/- is awarded by the tribunal on the basis of actual bills

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

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Towards loss of income during laid up period, the tribunal has awarded Rs.50,000/-. In view of this Court enhancing the income from Rs.10,000/- to Rs.14,000/-, the claimant was admitted as an inpatient for 2 months and he would require atleast four months period to recuperate inclusive of 2 months and to get back to his normal day to day activities. Therefore, the claimant would be entitled to Rs.84,000/- (Rs.14,000/- x 6) under this head.

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Towards food, nourishment and attendant

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charges, tribunal has awarded Rs.70,000/-. This Court deems it appropriate to award an additional amount of Rs.20,000/-. In all, the claimant would be entitled to Rs.90,000/- under this head.

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Towards loss of amenities and happiness, tribunal has awarded Rs.40,000/-. Considering the

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magnitude of injuries sustained, the plastic surgery undergone and the evidence of PWs.3 and 4, it would become very difficult for the claimant to perform his regular work as he was doing prior to the occurrence of accident. Hence, this Court deems it appropriate to award an additional amount of Rs.50,000/-. In all, the claimant

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would be entitled to Rs.90,000/- under this head.

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In view of the above, the claimants would be

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entitled to a total compensation of Rs.11,59,000/- as

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against Rs.8,11,000/- as mentioned in the table below:

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Heads	Amount in Rs.
Pain and suffering	90,000-00
Medical expenses	91,000-00
Loss of income during laid up period	84,000-00
Loss of future earning due to disability	7,14,000-00
Food, nourishment and attendant charges	90,000-00
Loss of amenities and	90,000-00
happiness
TOTAL	11,59,000-00

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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 ; ii) The judgment and award dated 01.02.2020 passed by Motor Accidents Claims Tribunal, Bengaluru city in MVC.No.1603/2019 is modified;

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iii) The claimant would be entitled to a sum of Rs.11,59,000/- as against Rs.8,11,000/-;

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

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

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Sd/JUDGE

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CPN CT:SNN

Eshwar v. United India Insurance Co.Ltd.

Case brief

What is this about?

What did the court decide?

Eshwar v. United India Insurance Co.Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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