Partly allowed

Smt Lakshmi v. Liberty Videocon General Insurance Company Ltd.

Karnataka HC12 Jan 2024MFA/4123/2020

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a Motor Accidents Claims Tribunal award, enhancing compensation from Rs.1,75,000 to Rs.4,22,757 (adjusted to Rs.3,80,482 post-negligence). The court reduced contributory negligence from 25% to 10% and increased income assumptions and loss of future income calculations.

What did the court decide?

Compensation enhanced from Rs.1,75,000 to Rs.3,80,482; contributory negligence reduced to 10%; triangular negligence head increased.

Smt Lakshmi Vs Liberty Videocon General Insurance… — Motor Accident Claims | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:1672 MFA No. 4123 of 2020

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 12^TH DAY OF JANUARY, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO. 4123 OF 2020 (MV-I)

¶7

BETWEEN:

¶8

SMT. LAKSHMI, W/O H.S. MANJUNATHA GUPTHA, AGED ABOUT 58 YEARS, NO. 76, GURUCHARANA, 1ST FLOOR, 18TH MAIN, 2ND CROSS, BSK 1ST STAGE, BENGALURU - 560 050.

¶9

SMT. LAKSHMI, W/O H.S. MANJUNATHA GUPTHA, 2432/2287, WARD NO.15, DEVARAJA ROAD, KOTE HOLENARASIPURA, HASSAN DISTRICT - 573 211.

¶10

…APPELLANT

¶11

Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

¶12

(BY SRI. GIRIMALLAIAH, ADVOCATE)

¶13

AND:

¶14

LIBERTY VIDEOCON GENERAL INSURANCE COMPANY LTD., NO. 1, ALYSSA, 1ST FLOOR, REAR PORTION, OLD NO. 28, NEW NO. 23, RICHMOND ROAD, BENGALURU - 560 025, BY IT'S MANAGER.

¶15

¶16

NC: 2024:KHC:1672 MFA No. 4123 of 2020

¶17

SRI. MANGAL SINGH V, S/O VIKRAM SINGH, MAJOR, (AGED NOT KNOWN TO APPELLANT) NO. 374/5, SRI TULASI PARADISE, HANUMANTHANAGAR, 9TH MAIN, PIPE LINE ROAD,

¶18

50 FEET ROAD, BENGALURU - 560 019.

¶19

…RESPONDENTS

¶20

(BY SRI. RAVI S. SAMPRATHI, ADVOCATE FOR R1; VIDE ORDER DATED 19.09.2022, NOTICE TO R2 DISPENSED WITH)

¶21

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED. 22.10.2019, PASSED IN MVC NO.7500/2018, ON THE FILE OF MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶22

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶23

JUDGMENT

¶24

This appeal is preferred by the claimant challenging

¶25

the judgment and award dated 22.10.2019 passed by the Motor Accidents Claims Tribunal, Court of Small Causes, Bengaluru (for short ‘the Tribunal’) in MVC No.7500/2018.

¶26

This appeal is founded on the premise of inadequacy of compensation. Hence, the appellant seeks enhancement of compensation.

¶27

¶28

NC: 2024:KHC:1672 MFA No. 4123 of 2020

¶29

Parties to the appeal shall be referred to as per their status before the tribunal.

¶30

Brief facts of the case are as under;

¶31

That on 21.11.2018 at about 9.00 p.m., the claimant

¶32

was crossing 7^th Cross road, near Nirmala Stores, Hanumanthanagar, at that time, rider of the bullet motor cycle bearing No.KA-01-EN-8423 came in a rash and negligent manner and dashed against the claimant. Due to the impact of the accident, the claimant sustained grievous injuries and immediately, she was shifted to Dr.N.Ramesh Orthopedic Clinic, wherein, first aid treatment was given. Thereafter, she was shifted to Sanjay Gandhi hospital and has taken treatment as inpatient for 17 days and she has undergone surgery for open reduction and internal fixation.

¶33

3.1 It is the case of the claimant that she was hale

¶34

and healthy prior to the occurrence of accident, she was doing tailor job and earning Rs.15,000/- per month. Due to the injuries suffered in the road traffic accident, she has

¶35

¶36

NC: 2024:KHC:1672 MFA No. 4123 of 2020

¶37

become partially disabled. Hence, the claimant filed claim petition seeking compensation.

¶38

3.2 On service of notice, respondents have appeared through their counsel and filed statement of objections, wherein, respondent No.1 denying the negligence on behalf of the rider of the motor cycle and attributed the negligence on behalf of the claimant, who was crossing the road without following proper rules and regulations.

¶39

3.3 Respondent No.2 filed statement of objections to

¶40

absolve his liability in view of policy being in force with respondent No.1 and sought for dismissal of the claim petition.

¶41

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

¶42

3.5 In order to substantiate the issues and to establish the case, the claimant got examined herself as PW.1 and the Doctor as PW.2 and got marked documents Exs.P1 to P13. On the other hand, respondent No.1 got

¶43

¶44

NC: 2024:KHC:1672 MFA No. 4123 of 2020

¶45

examined its official as RW.1 and no documents were marked.

¶46

3.6 On the basis of materials evidence, both oral and documentary and on hearing the submissions of learned counsel for both parties, the tribunal awarded compensation of Rs.1,75,000/- with interest @ 9% p.a. from the date of petition till the date of deposit and also held that respondent Nos.1 and 2 are jointly and severally liable to pay the compensation to the claimant at 75% and respondent No.1 being the insurer was directed to pay the total award amount and shall deposit the same as the policy was in force as on the date of occurrence of accident.

¶47

Learned counsel for appellant-claimant vehemently contends that the tribunal has committed an error in awarding meager compensation without taking into consideration the material placed on record and has ignored the aspect of the evidence adduced by PW.2Doctor with regard to disability to an extent of 19%. He

¶48

¶49

NC: 2024:KHC:1672 MFA No. 4123 of 2020

¶50

also contends that the tribunal has committed a serious error fastening 25% contributory negligence on the claimant, who was a pedestrian. It is also contended that in other heads also the tribunal has awarded meager compensation. Accordingly, he seeks to allow the appeal preferred by the claimant and seeks enhancement of compensation.

¶51

Per contra , learned counsel representing the Insurance Company contends that there is no illegality or perversity in the award passed by the tribunal. She sustains the order of the tribunal and fastening of 25% contributory negligence by contending that it was a road and accident occurred on almost in the middle of the road, the claimant-pedestrian should have been careful when crossing the road, admittedly, it was not a place designated for crossing the road or where zebra crossing was provided for the claimant to cross the road. Therefore, the assessment and calculation of the tribunal attributing 25% contributory negligence against the

¶52

7 - NC: 2024:KHC:1672 MFA No. 4123 of 2020

¶53

claimant is correct and the same does not call for interference. He also contended that under other heads also the tribunal has awarded reasonable compensation, which does not call for interference. Therefore, on these grounds, he seeks to dismiss the appeal.

¶54

Having heard learned counsel for both parties, perused the impugned judgment and award and looked through the original records, it is not in dispute that on 21.11.2018 at about 9.00 p.m. the claimant was crossing 7^th Cross road, near Nirmala Stores, Hanumanthanagar, the motor cycle ridden by its rider came in a rash and negligent manner and dashed against the claimant. In order to establish these aspects, the claimant has produced Exs.P1 to P7 being the police records and Exs.P8 to P13 being the medical records. The police records show that a criminal case has been registered against the rider of the offending vehicle, which is not disputed and which is not challenged before the appropriate forum. Therefore, charge sheet has also been laid against the rider of the

¶55

¶56

NC: 2024:KHC:1672 MFA No. 4123 of 2020

¶57

offending vehicle. Negligence to the extent of 75% is attributed against the rider of the motor cycle and 25% against the claimant.

¶58

Though, it is vehemently argued by the learned counsel for appellant-claimant that the entire negligence has to be fastened on the rider of the motor cycle as he should have been careful while riding the motor cycle and admittedly, there was no pedestrian cross or zebra cross at the place of occurrence of accident, when the claimant was crossing 7^th cross road, near Nirmala stores, the claimant attributed the entire negligence against the rider of the motor cycle. On the contrary, it is seen that as per Ex.P4-sketch, the accident has occurred in the middle of the 7^th cross road, when there is no pedestrian cross or zebra cross, it cannot be said that the pedestrian can suddenly cross the road. It is a fundamental principle that the pedestrian will have to cross the road only at the designated place provided to cross the road.

¶59

¶60

NC: 2024:KHC:1672 MFA No. 4123 of 2020

¶61

It is also the responsibility of every citizen while crossing the road to look into the left and right side before crossing the road and that also has to be done on the place designated for crossing the road. If no such place is designated, it is then the duty of the pedestrian to take utmost care while crossing the road and entire negligence cannot be attributed against the rider of the motor cycle if any untoward incident happens. Considering the facts and circumstance of the present case, the tribunal has fastened 25% negligence which according to me is on the

¶62

higher side against the claimant. I am in agreement with the learned counsel for appellant-claimant partially to reduce the contributory negligence as against the claimant. Accordingly, the contributory negligence against the claimant is attributed at 10% rather than 25% fixed by the tribunal.

¶63

PW-2-Doctor has not opined disability to the

¶64

particular limb except stating whole body disability from left lower limb to an extent of 19%. The tribunal not

¶65

10 -

¶66

NC: 2024:KHC:1672 MFA No. 4123 of 2020

¶67

being satisfied with such disability assessment made by the Doctor, has assessed disability to be 7% rather than 19% expressed by the Doctor.

¶68

I am in agreement with the learned counsel for appellant-claimant that disability assessed by the tribunal

¶69

is on the lower side, considering the fact that the Doctor has not assessed the disability to a particular limb as prescribed in the Government Gazette Notification. However, there is no doubt disability and the same is taken at 15% rather than 19%, in view of the injuries sustained by the claimant as explained by PW.2-Doctor and exhibits produced and there being neck of femur of left side is grievously injured. The claimant was aged 56 years as on the date of occurrence of the accident. The tribunal has rightly applied the multiplier at '9', which does not call for interference. The tribunal has awarded the income of Rs.8,500/- per month, whereas, the notional income chart of the Legal Services Authority prescribes the income of Rs.12,500/- for the accident of the year 2018.

¶70

11 -

¶71

NC: 2024:KHC:1672 MFA No. 4123 of 2020

¶72

Accordingly, income is taken as Rs.12,500/-. Therefore, the loss of future earning capacity due to disability would

¶73

be Rs.2,02,500/- (Rs.12,500/- x 12 x 9 x 15%) as against Rs.64,260/- awarded by the tribunal.

¶74

The tribunal has awarded Rs.15,000/- towards

¶75

pain and agony. I deem it appropriate to award Rs.25,000/- under this head as against Rs.15,000/-.

¶76

Towards medical expenses, Rs.72,757/- is

¶77

awarded by the tribunal as per the medical bills produced by the claimant, the same is not disturbed.

¶78

The tribunal has awarded Rs.10,000/- towards

¶79

loss of amenities and nutritious food. I deem it appropriate to award an additional amount of Rs.25,000/-. In all, the claimant would be entitled to Rs.35,000/- under this head.

¶80

Towards attendance charges and conveyance, the tribunal has awarded Rs.5,000/-, wherein the claimant was inpatient for 17 days, this Court deems it appropriate

¶81

12 -

¶82

NC: 2024:KHC:1672 MFA No. 4123 of 2020

¶83

to award additional amount of Rs.20,000/-. In all, the claimant would be entitled to Rs.25,000/- under this head.

¶84

Towards loss of income during laid up period, the tribunal has awarded Rs.8,000/-. In view of enhancement of the income by this Court from Rs.8,500 to Rs.12,500/-, the claimant would be require atleast three months period to recuperate and to get back to her normal day to day activities. Therefore, the claimant would be entitled to Rs.37,500/- (Rs.12,500/- x 3) under this head.

¶85

Towards future medical expenses, though the

¶86

Doctor has not opined anything, the claimant has undergone certain surgeries, where implants are inserted. Therefore, the same requires to be removed, for which Rs.25,000/- would be reasonable amount to be awarded towards future medical expenses, which would not carry interest.

¶87

13 - NC: 2024:KHC:1672 MFA No. 4123 of 2020

¶88

In view of the above, the claimant would be entitled to a total compensation of Rs.4,22,757/- as

¶89

against Rs.1,75,000/- as mentioned in the table below:

¶90

Heads	Amount in Rs.
Loss of future income	2,02,500-00
Pain and agony	25,000-00
Medical expenses	72,757-00
Loss of amenities and nutritious food	35,000-00
Attendance charges and	25,000-00
conveyance
Loss of income during laid up period	37,500-00
Future medical expenses	25,000-00
TOTAL	4,22,757-00

¶91

Accordingly, I pass the following:

¶92

ORDER

¶93

i) The appeal is allowed-in-part ;

¶94

ii) The judgment and award dated 22.10.2019 passed by Motor Accidents Claims Tribunal, Court of Small Causes, Bengaluru in MVC.No.7500/2018 is modified;

¶95

iii) The claimant would be entitled to a sum of Rs.4,22,757/- as against Rs.1,75,000/-;

¶96

14 -

¶97

NC: 2024:KHC:1672 MFA No. 4123 of 2020

¶98

iv) The enhanced compensation shall carry interest @ 6% p.a.;

¶99

v) The claimant would be entitled to total compensation of Rs.3,80,482/- (Rs.4,22,757/- - 10% contributory negligence);

¶100

vi) The respondent-Insurance Company is liable to pay compensation of Rs.3,80,482/-;

¶101

vii) The entire compensation amount shall be released in favour of the claimant upon proper verification.

¶102

Sd/JUDGE

¶103

CPN

¶104

CT: BHK

Smt Lakshmi v. Liberty Videocon General Insurance Company Ltd.

Case brief

What is this about?

What did the court decide?

Smt Lakshmi v. Liberty Videocon General Insurance Company Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Munivenkatappa Vs the New India Assurance Company Ltd.

Vijaya Kanchan Vs Peeter Santhosh Rodrigues

Sri Byra Reddy Vs the National Insurance Co. Ltd.

Sri. T Mahadeva Vs the Manager

Usha Vs Anand K M

Smt Rama Vs Nagaraja M