Partly allowed

Smt Malathi C.K v. M/S. Iffco Tokio General Insurance Co. Ltd.

Karnataka HC6 Aug 2024MFA/4508/2013

Case brief

AI extract

What is this about?

The High Court, in a miscellaneous first appeal under Section 173(1) of the MV Act, partially allowed the appellant's appeal seeking enhancement of compensation for injuries sustained in a motor accident, modifying the Tribunal's award to include loss of amenities and future medical expenses.

What did the court decide?

The appellant is entitled to an enhanced compensation of Rs. 1,24,000/- along with interest at 6% p.a. from the date of the petition.

Smt Malathi C.K Vs M/S. Iffco Tokio General… — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:31191 MFA No. 4508 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA

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MISCELLANEOUS FIRST APPEAL NO. 4508 OF 2013 (MV)

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BETWEEN:

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SMT. MALATHI C.K. W/O SRI. RAMESH, AGED ABOUT 43 YEARS, R/AT C/O VISHALAKSHI, NO.118, 2^ND FLOOR, 1^ST CROSS, VINAYAKA LAYOUT, K.G. NAGAR, BANGALORE-560 018

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PRESENT ADDRESS: NO.63/3, 6^TH CROSS, 2^ND MAIN ROAD, CHAMARAJPET, BANGALORE-560018

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…APPELLANT

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Digitally signed by PRAJWAL A Location: HIGH COURT OF KARNATAKA

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AND:

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(BY SRI T.N.VISWANATHA, ADVOCATE)

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M/S. IFFCO TOKIO GENERAL INSURANCE CO. LTD., IFFCO BHAVAN, 4^TH FLOOR, NEAR HOTEL CHANDRIKA, CUNNINGHAM ROAD, BANGALORE-560052.

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MR. PRASANNA KUMAR N, S/O SRI NARAYANA SETTY, MAJOR, R/AT NO.63/4, 1^ST FLOOR, 2^ND OUT HOUSE, APPURAO ROAD,

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NC: 2024:KHC:31191 MFA No. 4508 of 2013

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6^TH MAIN ROAD, CHAMARAJPET, BANGALORE-560018.

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…RESPONDENTS

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(VIDE ORDER DATED 06.08.2024, SRI D.VIJAYAKUMAR, ADVOCATE FOR R1 [THROUGH V.C.]; R2 SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 5.11.2012 PASSED IN MVC NO.7019/2011 ON THE FILE OF THE 23^RD ADDITIONAL SMALL CAUSES JUDGE, 21^ST ACMM, COURT OF SMALL CAUSES, MACT, BANGALORE, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA

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ORAL JUDGMENT

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In this appeal, the petitioner has challenged the judgment and award dated 05.11.2012 passed in M.V.C.No.7019/2011 by the XXI A.C.M.M. and XXIII A.S.C.J., Bengaluru ('the Tribunal' for short).

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For the sake of convenience, the rank of the parties shall be referred to as per their status before the Tribunal.

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3 - NC: 2024:KHC:31191 MFA No. 4508 of 2013

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Brief facts of the case are, on 04.07.2011, while the petitioner was standing on the left side of K.G. Nagar Main Road, the rider of scooter bearing No.KA-01:ES:2471 hit against the petitioner. Due to which, she sustained injuries to her right leg. After taking treatment at Shekar Hospital, Amar Nursing Home and then at KIMS Hospital, approached the Tribunal for grant of compensation of Rs.6,00,000/-. The claim was opposed by the insurance company. The Tribunal after considering the evidence and on hearing both the parties, by impugned judgment awarded the following compensation:-

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01.	Loss of income on account of disability	Rs. 2,10,000/-
02.	Pain & Suffering	Rs. 50,000/-
03.	Medical expenses	Rs. 20,000/-
04.	Transportation, special diet and attendant charges	Rs. 20,000/-
05.	Loss of income during laid up period	Rs. 15,000/-
	Total	Rs. 3,15,000/-

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The award of the Tribunal is satisfied by the insurance company. Pleading inadequacy and seeking enhancement

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4 - NC: 2024:KHC:31191 MFA No. 4508 of 2013

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of compensation, the petitioner has filed this appeal on various grounds.

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Heard Smt. Sreevidya G.R., learned counsel for Sri T.N. Vishwanath, learned counsel for petitioner and Sri D. Vijay Kumar, learned counsel for respondent No.1.

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It is contended by learned counsel for the petitioner that the petitioner is a ‘Tailor’ by profession and she has suffered fracture on her right leg which has affected her earning capacity. The Doctor has been examined as P.W.2, who has spoken about whole body disability suffered by petitioner at 21.55%. If the whole body disability is considered as functional disability, it affects the whole body to the extent of more than 50% and the Tribunal did not consider the same and considered the disability to lower limb at 25%. It is also contended that the compensation assessed by the Tribunal towards incidental expenses is inadequate and no compensation is awarded towards loss of amenities and discomfort and so also future medical expenses and sought for enhancement.

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5 - NC: 2024:KHC:31191 MFA No. 4508 of 2013

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Per contra, learned counsel for the insurance

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company has contended that the injury sustained by the petitioner will not affect the earning capacity, as there is no proof to the effect that the petitioner is a ‘Tailor’ by profession. The Tribunal has considered this aspect and rightly awarded the compensation. The limb disability assessed by the Doctor is 43.1% and if 1/3^rd is considered, the disability will not come to 25% as taken by the Tribunal which is on the higher side and it has to be reduced to 1/3^rd . There is no evidence to the effect that the petitioner requires future medical treatment and the Tribunal has awarded just compensation in the facts and circumstances of the case and supported the impugned judgment.

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I have given my anxious consideration to the arguments advanced by learned counsel for both the parties and perused the material on record.

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The accident in question is not in dispute and liability

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on the part of insurance company is admitted. The medical

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6 - NC: 2024:KHC:31191 MFA No. 4508 of 2013

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records show that the petitioner has suffered tenderness around medial condyle of right tibia. P.W.2 is an Orthopedic Surgeon, who has stated that the petitioner has suffered limb disability to the extent of 43.1% and whole body disability at 21.55%. The medical evidence is persuasive, so far as limb disability is concerned and the Tribunal has considered the functional disability and it does not required any interference. Therefore, the functional disability is taken at 25%.

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The inpatient records show that the petitioner was in hospital for a period of 10 days from 04.07.2011 to 13.07.2011 and she has spent huge money towards treatment and incidental expenses. The medial records show that there is need for removal of implant. But, the Tribunal did not consider the future medical expenses and no compensation is assessed. The Tribunal, not awarded compensation under loss of amenities and discomfort, the petitioner being a lady, a nominal amount has to be assessed towards loss of amenities and discomfort.

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7 - NC: 2024:KHC:31191 MFA No. 4508 of 2013

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The accident is of the year 2011 and the petitioner has not produced any proof with regard to her monthly income. Hence, she has to be treated as a person with no proof of income and her notional income has to be taken at Rs.6,500/- per month. The petitioner would have laid up for a minimum period of four months for her treatment. Therefore, loss of income during laid up period for four months comes to Rs.26,000/- (6,500 x 4).

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The Tribunal assessed Rs.50,000/- towards pain and suffering and Rs.20,000/- towards medical expenses and the same are kept intact. The incidental expenses assessed at Rs.20,000/- by the Tribunal is on the higher side and it is assessed at Rs.10,000/-. Loss of amenities and discomfort is assessed at Rs.40,000/- and future medical expenses at Rs.20,000/-. The petitioner was aged 42 years at the time of accident, multiplier applicable is ‘14’, taking the income at Rs.6,500/- per month, disability at 25%, loss of income on account of disability works out to Rs.2,73,000/- (Rs.6,500 x 12 x 14 x 25 / 100) as against Rs.2,10,000/- assessed by the Tribunal.

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8 - NC: 2024:KHC:31191 MFA No. 4508 of 2013

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Hence, the petitioner is entitled to

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compensation as follows:-

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1.	Painand suffering Rs.	50,000/-
2.	Medical expenses Rs.	20,000/-
3.	Loss of income during laid up period Rs.	26,000/-
4.	Transportation, diet and attendant charges Rs.	10,000/-
5.	Loss of amenities and discomfort Rs.	40,000/-
6.	Future medical expenses Rs.	20,000/-
7.	Loss of income on account of disability Rs.	2,73,000/-
	Total Rs.	4,39,000/-
	Less compensation awarded by the Tribunal Rs.	3,15,000/-
	Enhanced compensation Rs.	1,24,000/-

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It is the just compensation the petitioner is entitled

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to in the facts and circumstances of the case. Hence appeal merits consideration, in the result, the following :-

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ORDER

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(i) The appeal is allowed in part.

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(ii) The impugned judgment and award is modified.

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(iii) The petitioner would be entitled to enhanced compensation of Rs.1,24,000/- together with interest at 6% p.a. from the date of petition till deposit,

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NC: 2024:KHC:31191 MFA No. 4508 of 2013

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excluding interest on future medical expenses of Rs.20,000/-.

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(iv) The insurance company has to deposit the compensation within eight weeks from the date of receipt of the certified copy of this judgment.

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SD/(T.G. SHIVASHANKARE GOWDA) JUDGE

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List No.: 1 Sl No.: 11

Smt Malathi C.K v. M/S. Iffco Tokio General Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Smt Malathi C.K v. M/S. Iffco Tokio General Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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