Partly allowed

Sri Hiriyanna Rao v. Sri Esskaybee Developer Pvt. Ltd.

Karnataka HC15 Nov 2024MFA/4556/2017

Case brief

AI extract

What is this about?

Claimant injured when a car hit his scooter appealed for enhanced compensation. The High Court raised disability to 12%, recomputed loss of future earnings, enhanced heads of pain and suffering and loss of amenities, added laid-up period income, and awarded an additional Rs.1,00,000 with interest.

What did the court decide?

Enhanced compensation of Rs.1,00,000 with 6% p.a. interest from date of petition till realization, payable by insurer within four weeks.

Sri Hiriyanna Rao Vs Sri Esskaybee Developer Pvt. Ltd. — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:46444-DB MFA No.4556/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF NOVEMBER, 2024 PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.4556/2017 (MV-I)

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BETWEEN:

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SRI. HIRIYANNA RAO S/O LATE N. RAMA RAO AGED ABOUT 61 YEARS R/AT. NO.5, BANDAPPA GARDEN MUTHYALANAGAR BANGALORE-560054 …APPELLANT (BY SRI. M.L. GOWDA, ADV.,)

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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AND:

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SRI. ESSKAYBEE DEVELOPER PVT. LTD NO.100, SNEHA APTS., NO.225, 18^TH CROSS SADASHIVANAGAR BANGALORE-560080 (OWNER OF THE VEHICLE BEARING NO.KA-04-ML-7353).

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THE BRANCH MANAGER RELIANCE GENERAL INSURANCE CO LTD., NO.28, 5^TH FLOOR CENTENARY BUILDING EAST WING, NEAR CITY BANK M G ROAD, BANGALORE-560001 (POLICE NO.17107223110000165) (VALID FROM 25.10.2012 TO 24.10.2013). … RESPONDENTS

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(BY SRI.ASHOK N. PATIL, ADV., FOR R2 R1 SERVED & UNREPRESENTED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 21.03.2017 IN MVC NO.4546/2013 PASSED BY

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MACT, XXI ACMM & XXIII, ASCJ, BANGALORE AND ENHANCE THE SAME AND AWARD JUST AND REASONABLE COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL AND

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HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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( PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL )

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Though the matter has come up for admission, with consent of both sides, the matter is taken up for final disposal.

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Questioning the adequacy of the compensation awarded to him, the claimant in MVC.No.4546/2013 on the file of MACT, XXI A.C.M.M. and XXIII Additional Small Causes Judge, Bengaluru has preferred this appeal. Appellant was the claimant and respondents were respondents in MVC No.4546/2013. For the purpose of convenience they are referred to henceforth according to their ranks before the Tribunal.

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On 22.01.2013 at 4:00 p.m., when the claimant was riding scooter bearing Reg.No. KA-01-EZ-1588 near Siddalingaiah Circle within the limits of Cubbon Park traffic police station, Car bearing Reg.No. KA-04-ML-7353 hit him

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from back side. In the accident, the claimant suffered injuries.

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He was shifted to Mallya Hospital and was treated there as inpatient between 22.01.2013 to 25.01.2013. At the time of incident, respondent Nos.1 and 2 were the registered owner and insurer of car bearing No. KA-04-ML-7353.

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The claimant filed MVC.No.4546/2013 claiming compensation of Rs.20,00,000/- from the respondents on the ground that the accident occurred due to the actionable negligence on the part of the driver of the car bearing No.KA04-ML-7353. He contended that due to the injuries suffered in the accident, he has suffered permanent physical disability. He was working as clerk under an Advocate and earning Rs.25,000/- per month. Due to his physical disability, he lost his earnings and respondents are liable to compensate the damages.

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Respondent No.2 contested the petition denying

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actionable negligence on the part of the driver of the car, age, occupation, income of the claimant and its liability to pay the compensation. In support of his claim, the claimant got examined himself as PW.1, the doctor who issued the disability certificate was examined as PW.2 and got marked Exs.P1 to

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P20. Official of respondent No.2 was examined as RW.1 and insurance policy was marked as Ex.R1.

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The Tribunal on hearing the parties by the

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impugned award held that the accident occurred due to the actionable negligence on the part of the driver of the car bearing No. KA-04-ML-7353. The Tribunal considered the age of the claimant as 57 years and permanent physical disability suffered by him in the accident to the whole body at 10%. The Tribunal notionally considered his income at Rs.8,000/- per month, applied 9 multiplier and awarded compensation of Rs.86,400/- on the head of loss of future earnings. The tribunal in all awarded compensation of Rs.2,54,050/- on different

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heads as follows:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Towards pain and suffering	20,000/-
2.	Towards medical expenses	92,611/-
3.	Towards loss of amenities	15,000/-
4.	Towards loss of future income	86,400/-
5.	Towards food and nourishment	20,000/-
6.	Towards future medical expenses	20,000/-
	Total	2,54,011/-
	Rounded off to	2,54,050/-

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The insurer/respondent No.2 has not challenged the

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award. The claimant has challenged the award on the ground that disability considered by the Tribunal is contrary to the medical evidence and income assessed is on the lower side.

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Sri. M.L. Gowda, learned counsel for the appellant reiterating the grounds of the appeal submits that the compensation awarded on all the heads is on lower side. Whereas, Sri. Ashok N. Patil, learned counsel for the insurer justifies the award contending that PW.2 was not the doctor who treated the claimant and the alleged employer of the claimant was not examined to prove the income.

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Since the insurer has not questioned the finding on

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actionable negligence on the part of the driver of the insured car and the compensation awarded on the other heads, the award against the insurer has attained finality. The age considered by the Tribunal is not under challenge. PW.2 is though not the doctor who treated the claimant, it was not disputed that he was Assistant Surgeon in Mallya Hospital where the claimant was treated and he was competent to assess the disability. As per the wound certificate Ex.P4 and

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NC: 2024:KHC:46444-DB MFA No.4556/2017

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evidence of PW.2, the claimant had suffered fracture of Left Knee Tibial Plateau (Schatzker Type II) Left Leg.

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Evidence of PW.2 and Ex.P17 show that the claimant had undergone a surgery in the hospital for Open Reduction and Internal Fixation (ORIF) with lateral tibial LCP and screws. He was treated as inpatient in the hospital between 22.01.2013 to 25.01.2013. The Tribunal did not assign any cogent reasons to reduce the disability from 12.34% to 10% contrary to the evidence of the doctor. Therefore, the disability spoken at 12.34% can be rounded to 12% and the award of the Tribunal to that extent has to be modified.

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Though the claimant contended that he was earning

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Rs.25,000/- per month and relied on Ex.P14 in support of his employment and income, the author of Ex.P14 i.e., the alleged employer was not examined. Therefore, the Tribunal was justified in assessing his income notionally. Considering the cost of living and prevailing wage rates in 2013, Karnataka State Legal Services Authority for the purpose of Lok Adalat has fixed the notional income for the year 2013 at Rs.8,000/-

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per month. Applicable multiplier is 9. Therefore, loss of future earnings comes to Rs.1,03,680/- (8,000x12x9x12/100). Since

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claimant had suffered one fracture and having regard to his period of hospitalization and treatment undergone, compensation awarded on the head of pain and suffering is on the lower side. Awarding Rs.50,000/- on that head is just and proper. Medical expenses awarded was based on the records, therefore, that needs to be maintained.

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Under the aforesaid circumstances, compensation awarded on the head of loss of amenities needs to be enhanced to Rs.35,000/-. Compensation awarded on the head of diet, conveyance and attendant charges is just one. The Tribunal ought to have awarded compensation on the head of loss of income during laid up period. Considering the nature of injuries, at least for four months claimant would not have been able to attend his regular work. Therefore, compensation payable on that head is (8,000x4) Rs.32,000/-. Future medical expenses awarded is just one and that needs to be maintained.

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Therefore, the just compensation payable is as follows:

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Particulars	Amount (Rs.)
Pain and suffering	50,000/-
Medicalexpenses	92,611/-
Loss of amenities	35,000/-
Loss of future earnings	1,03,680/-
Diet, conveyance and attendant charges	20,000/-

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Loss of income during laid up period	32,000/-
Futuremedicalexpenses	20,000/-
Total	3,53,291/-
Awarded by Tribunal	2,54,050/-
Enhanced compensation	99,241/-
(Rounded to)	1,00,000/-

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Enhanced compensation shall carry interest at 6% per annum. For the aforesaid reasons, appeal deserves to be allowed in part. Hence, the following:

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ORDER

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The appeal is allowed in part.

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The appellant - claimant is entitled to enhanced compensation of Rs.1,00,000/- with interest thereon at 6% p.a. from the date of petition till its realization.

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Respondent No.2 - insurer shall deposit the said amount before the Tribunal within four weeks from the date of receipt of copy of this order.

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On such deposit, amount shall be digitally released to the claimant on furnishing the required documents.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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ABK/PKN List No.: 1 Sl No.: 24

Sri Hiriyanna Rao v. Sri Esskaybee Developer Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

Sri Hiriyanna Rao v. Sri Esskaybee Developer Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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