Partly allowed

Sri. Puttaswamy Naika v. M/S. Cholamandalam M.S

Karnataka HC2 Jan 2024MFA/3890/2015

Case brief

AI extract

What is this about?

Claimant, a pillion rider who lost his right lower limb in a road traffic accident with a lorry, sought enhancement of the Tribunal's award of Rs.9,98,690/-. The High Court raised notional income to Rs.8,000 per month and took 60% whole-body disability, enhancing loss of future earnings to Rs.9,21,600/- and total compensation to Rs.13,44,290/-.

What did the court decide?

Compensation enhanced by Rs.3,45,600/- to Rs.13,44,290/- with interest; deposit within six weeks; Rs.2,00,000/- in fixed deposit for three years, balance released to claimant.

Sri. Puttaswamy Naika Vs M/S. Cholamandalam M.S — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:187-DB MFA No. 3890 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2^ND DAY OF JANUARY, 2024 PRESENT

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

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AND

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THE HON'BLE MR.JUSTICE RAMACHANDRA D. HUDDAR

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MISCELLANEOUS FIRST APPEAL NO. 3890 OF 2015 (MV-I)

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BETWEEN:

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SRI. PUTTASWAMY NAIKA S/O SRI. LALU NAIKA, AGED ABOUT 36 YEARS, R/AT NO.176, NETTIGERE, UTTARAHALLI P.O., BENGALURU SOUTH BENGALURU-560 082.

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…APPELLANT

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(BY SMT. SREE VIDYA G.K. (PH), ADVOCATE)

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AND:

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Digitally signed by SHAKAMBARI Location: HIGH COURT OF KARNATAKA

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M/S. CHOLAMANDALAM M.S GENERAL INSURANCE CO. LTD., T.P. CLAIMS HUB, GOLDEN HEIGHTS, 6^TH FLOOR, (STAR BAZAR BUILDING), DR.RAJKUMAR ROAD, NEAR SUJATHA THEATRE, BENGALURU-560 010.

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SRI. RAJEEVA S/O SHIVANNA, MAJOR, R/AT NO.20, SONARE DODDI, GOTTIGEHALLI P.O., HAROHALLI HOBLI, KANAKAPURA TALUK, RAMANAGARAM DISTRICT-561 001.

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…RESPONDENTS (BY SRI. O. MAHESH., ADVOCATE FOR R1 (VC) NOTICE TO R2 IS DISPENSED WITH V/O/D: 15.09.2015)

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NC: 2024:KHC:187-DB MFA No. 3890 of 2015

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 5.12.2014 PASSED IN MVC No.6612/2013 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL CAUSES, BENGALURU (SCCH13), BE MODIFIED BY GRANTING COMPENSATION AS CLAIMED IN THE CLAIM PETITION AND THIS MISCELLANEOUS FIRST APPEAL MAY BE ALLOWED WITH COSTS IN THE INTEREST OF JUSTICE.

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THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, DR.H.B.PRABHAKARA SASTRY J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The present appeal is filed by the claimant under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of compensation awarded by the Court of the learned II Addl. Small Causes Judge and XXVIII ACMM, Bengaluru, (hereinafter for brevity referred to as "the Tribunal"), in its judgment and award dated 05.12.2014 in M.V.C.No.6612/2013.

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The summary of the case of the claimant before

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the Tribunal was that, on 13.12.2013 at about 9:30 a.m., when the claimant was traveling as a pillion rider on a motor cycle bearing Registration No. KA-02-HB-7451 along with one Ramamurthy, on Bengaluru-Kanakapura Road,

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Somanahalli Gate, Uttarahalli, Bengaluru, the driver of a Lorry bearing Registration No. KA-51-7954 came at a high speed and in a rash and negligent manner endangering human life and dashed to the motor cycle in which the claimant was traveling as a pillion rider. Due to the said road traffic accident, claimant sustained grievous injuries. He was shifted to Victoria Hospital, Bengaluru where he was treated as inpatient and underwent surgery and amputation of right lower limb due to the accidental injuries and suffered disability. Claimant, at the time of accident was aged about 35 years and was working as a Coolie and earning a sum of 300/- per day. The claimant had claimed compensation in a sum of 25,00,000/- from respondent Nos.1 and 2 arraigning them as the insurer and owner of the alleged offending Motor vehicle lorry respectively.

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In response to the notices served upon them, respondents appeared through their counsels and it is only respondent No.1-Insurance Company, who filed its written

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statement. Respondent No.1, the Insurance Company denied the averments made about occurrence of the road traffic accident and negligence on the part of the driver of the motor lorry. It also denied that the claimant sustained injuries as claimed by him in the said road traffic accident. Further, denying the age, avocation and income of the claimant and also alleged disability, the Insurance Company prayed to dismiss the claim petition.

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Before the Tribunal, the claimant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-17 and also examined two more witnesses i.e. Smt.Lakshmi Devi S., Medical Record Officer, Victoria Hospital and Dr. S.Ramachandra, Orthopaedic Surgeon, Bowring and Lady Curzon Hospital, Bengaluru as PWs 2 and 3. However, on behalf of the respondents, neither any witness was examined nor any documents were got marked.

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After analysing the evidence and the materials placed before it, the Tribunal has awarded the

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compensation under the following heads with the sum shown against them:

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Sl. No.	Particulars	Amount in`
1	Injury,Pain and Sufferings	75,000-00
2	Loss of earnings during Medical treatment	30,000-00
3	Medical expenses	35,440-00
4	Loss of future earnings due to disability	5,76,000-00
5	Loss of amenities	50,000-00
6	Conveyance, Nourishment, Food and attendant charges	32,250-00
7	Future Medical Expenses	2,00,000-00
	Total	9,98,690-00

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The Tribunal has awarded compensation in a sum of 9,98,690/- with interest at the rate of 6% per annum from the date of the claim petition till the date of realisation of the entire amount, holding the owner and Insurer of the offending vehicle jointly and severally liable to pay the said compensation. It is against the said judgment and award passed by the Tribunal, the claimant has filed this appeal, seeking enhancement of compensation.

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NC: 2024:KHC:187-DB MFA No. 3890 of 2015

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Learned counsel for the appellant (claimant) in her brief arguments contended that evidence given by PW.3Doctor that the claimant was suffering with 60% of the disability to the whole body and the same was 100% occupational disability and the same was not considered by the Tribunal. Further, the income of the claimant as stated by him that it was `9,000/- per month was also arbitrarily reduced by the Tribunal without any basis for such reduction. Thus, the impugned award warrants interference at the hands of this Court and compensation awarded deserves to be enhanced as prayed.

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Per contra, learned counsel for respondent No.1 appearing for Insurance Company in his argument submitted that even as per Workmens' Compensation Act, 1923, for amputation below the knee results in disability of maximum 50% which has been rightly considered by the Tribunal. However, the income ought to have been taken at `5,200/- per month as per the Minimum Wages Act,

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NC: 2024:KHC:187-DB MFA No. 3890 of 2015

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1948, whereas, the Tribunal has taken it at `6,000/- which is on the higher side.

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Furthermore, the compensation awarded towards future medical expenses is exorbitant and without any basis. As such, though the compensation awarded under the impugned order is on the higher side, still Insurance Company did not prefer an appeal, as such, the impugned judgment and award itself be confirmed, much less, no interference is called for at the hands of this Court.

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The claimant in support of his contention has got himself examined as PW.1 wherein, he has reiterated the contentions taken up in the claim petition. On his behalf, he has got marked documents Ex.P1 to P17 which are certified copy of FIR & complaint, Mahazar, requisition for inspection of vehicle, charge sheet, wound certificate, discharge summary, OP Card, Medical prescription, two photographs of the claimant with CD and X-ray film. He also got examined one Smt.Lakshmi Devi S.,Medical Record Officer of Victoria Hospital, Bengaluru who has produced in-patient case sheet of the hospital along with

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NC: 2024:KHC:187-DB MFA No. 3890 of 2015

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the authorisation letter which were marked at Ex.P13 and 14.

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Claimant also got examined one Dr.S.Ramachandra, an Orthopaedic Surgeon at Bowring and Lady Curzon Hospital, Bengaluru, who has medically examined the claimant and has opined that as per his medical examination, the claimant has sustained crush injury over right lower limb with Type III 'C' Open (Compound), fracture of both bones (Tibia and Fibula) of right leg in the road traffic accident that occurred on 13.12.2013. He has further opined that is claimant has suffered permanent disability of 60% which is 100% occupational disability. OPD Slip/Card and X-Ray film are produced by this witness, which are marked as Ex.P15 and P16.

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PWs.1, 2 and 3 were subjected to crossexamination by the respondent. They have denied the suggestions made in their cross-examination and have not admitted the same as true. Thus, the evidence of PW.1, coupled with Ex.P1 to P7, would go to show the occurrence of the road traffic accident, on the date, time and place of

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accident, which has also been reflected in the memorandum of appeal, has not been denied or disputed. The wound certificate at Ex.P5 and the OPD slip Ex.P7 further go to show that, in the said road traffic accident, the claimant had sustained fracture of III Metabolic Bone and Fracture of both bones of Tibia and Fibula Right Leg and the medical record also shows that claimant was injured, in need of surgical operation below the knee as such amputation of right leg was done.

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The Charge sheet accuses the driver of the offending lorry as the one having committed offence under Section 279 and 337 of IPC. Thus, it stands established that in the said road traffic accident the motor lorry bearing Registration No.KA-51-7954 being driven by its driver in a rash and negligent manner dashed against the motor cycle bearing Registration No.KA-02-HB-7451. Thus, as rightly held by the Tribunal, the claimant has suffered grievous injuries in the said road traffic accident and is entitled for compensation from respondents who are Insurance Company and the owner of the offending lorry respectively.

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NC: 2024:KHC:187-DB MFA No. 3890 of 2015

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Considering the nature of the injuries sustained by the claimant and the duration of the treatment he has taken in the hospital as an inpatient, the compensation in a sum of `75,000/towards injury, pain and suffering, The compensation awarded by the Tribunal, under the said head does not warrant any interference by this Court.

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Similarly, towards loss of amenities, a sum of 50,000/- and towards conveyance, nourishment, food and attendant charges, 32,250/- has been awarded by the Tribunal by giving reasons for awarding compensation to the said extent. The reasons given by the Tribunal to arrive at those calculations is acceptable. The compensation awarded under these heads also do not warrant any interference by us..

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Considering the evidence lead by the claimant and his witnesses, we do not concur that he was laid up for a

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period of five months. The maximum laid up period can be taken as for a period of three and half months, as such, the quantum of compensation awarded under the head of 'loss of earning during medical treatment' which is at `30,000/also does not warrant interference at the hands of this Court.

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Towards loss of future earnings due to disability, the Tribunal has awarded a compensation of `5,76,000/-. It is mainly on this aspect, learned counsel for the appellant expresses her dissatisfaction both regarding income, as well as percentage of disability as has been considered by the Tribunal at a lower range.

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Per contra, learned counsel for respondent No.1Insurance Company contends that the compensation awarded under the head of loss of future income by itself is on the higher side, as such, the same does not warrant any interference at the hands of this Court.

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The claimant who was examined as PW.1 contends that, at the time of accident, he was working as a

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NC: 2024:KHC:187-DB MFA No. 3890 of 2015

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Coolie and earning 300/- per day. The Tribunal has taken his income at 6,000/- per month. According to the learned counsel for the Insurance Company, the Tribunal ought to have taken 5200/- per month but, according to learned counsel for the appellant, for year 2013, the notional income of a person as recommended by the Karnataka State Legal Services Authority (KSLSA) and as accepted by the majority of the Motor Accident Claims Tribunals is at 8,000/- per month. We find more force in the submission of the learned counsel for the claimant. For the year 2013 as recommended by the Legal Services Authority of the State, majority of the Tribunals are taking the income of the injured at 8,000/- per month. More particularly, considering the facts and circumstances of the present case, we are of the view that the income of the claimant which has remained unshaken in his cross-examination can be taken at 8,000/- per month.

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The age of the claimant is shown to be 35 years in his claim petition. Though there is slight variation in the evidence and the medical records, however, taking his age

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between 33 to 35 years, the multiplier applied by the Tribunal, which is '16', remains the same.

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The claimant contends in his evidence that due to the injuries sustained by him, he has suffered total disability and loss of his income and is unable to do any work. The medical doctor, who is examined as PW.3 though has assessed the percentage of disability at 60% as applicable to the whole body, however, considering the avocation of the claimant as a Coolie, has observed that the disability would be 100% occupational disability.

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Learned counsel for respondent-Insurance Company contends that since amputation is below the right knee, the percentage of disability is required to be taken at 50% only. However, considering the evidence of PW.3, including the evidence regarding occupational disability of the claimant, we are of the view that the disability of the claimant be taken at 60% to the whole body. Accordingly, the quantum of loss of future income would come to 8,000/- x 12 x 16 x 60/100 = 9,21,600/-. After deducting the sum of `5,76,000/- awarded by the

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NC: 2024:KHC:187-DB MFA No. 3890 of 2015

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Tribunal under the said head, claimant is entitled for a differential compensation in a sum of `3,45,600/-.

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Towards future medical expenses, the Tribunal has awarded a compensation of 2,00,000/-. To arrive at the said figure, the Tribunal has relied upon the estimation for artificial limb which is at Ex.P17. Same would show a sum of 3,18,500/-. Though, the quantum of compensation awarded towards future medical expenses by the Tribunal appears to be slightly on the higher side to a naked eye view, however, considering the evidence of PWs.1 to 3 and more particularly, document at Ex.P17, we find reason to retain the same amount as ordered by the Tribunal.

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Barring the above, the claimant is neither entitled for compensation under any other heads nor the compensation awarded by the Tribunal under the existing heads except the above deserves any further modification.

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Thus, as analysed above, the claimant is entitled for a modified compensation as tabulated below:

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Sl. No.	Particulars	Amount in`
1	Injury, Painand Sufferings	75,000-00
2	Loss of earnings during Medical treatment	30,000-00
3	Medical expenses	35,440-00
4	Loss of future earnings due to disability	9,21,600-00
5	Loss of amenities	50,000-00
6	Conveyance, Nourishment, Food and attendant charges	32,250-00
7	Future Medical Expenses	2,00,000-00
	Total	13,44,290-00

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Since the quantum of compensation awarded by the Tribunal at a sum of 9,98,690/- is in short by a sum of 3,45,600/-, for the said enhanced sum of `3,45,600/-

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only, the impugned judgment and award deserves to be interfered with.

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Accordingly, we proceed to pass the following:

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O R D E R

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[i] The appeal filed by the claimant

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stands allowed in part;

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[ii] The impugned judgment and award passed by the learned II Addl.Small Causes Judge and XXVIII ACMM, Bengaluru dated 5.12.2014 in M.V.C. No.6612/2013,

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NC: 2024:KHC:187-DB MFA No. 3890 of 2015

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is hereby modified to the extent that the compensation awarded at 9,98,690/- is enhanced by a sum of 3,45,600/- (Rupees Three Lakh Forty Five Thousand Six Hundred only), thus fixing the total compensation at ` 13,44,290-00 /- (Rupees Thirteen Lakh Forty Four Thousand Two Hundred and Ninety only).

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[iii] The rest of the order of the Tribunal with respect to fixing the liability upon the respondents jointly and severally to deposit the awarded amount and the rate of interest awarded, shall remain unaltered;

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[iv] The respondents are directed to deposit the enhanced compensation with interest within a period of six weeks from today;

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Upon deposit of the said sum, a sum of 2,00,000/- to be kept in Fixed Deposit in the name of claimant for three years in any nationalised Bank and the remaining amount of 1,45,600/- with accrued interest be released in favour of the claimant

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NC: 2024:KHC:187-DB MFA No. 3890 of 2015

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without further orders, after due identification and in accordance with law.

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Draw the modified award accordingly. Registry to transmit a copy of this judgment to the concerned Tribunal, along with its records, without delay.

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Sd/JUDGE

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Sd/JUDGE

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Sk/List No.: 1 Sl No.: 51

Sri. Puttaswamy Naika v. M/S. Cholamandalam M.S

Case brief

What is this about?

What did the court decide?

Sri. Puttaswamy Naika v. M/S. Cholamandalam M.S

Case brief

What is this about?

What did the court decide?

What the court decided

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