Partly allowed

V. Gopinatha v. the Bharathi Axa General Ins. Co. Ltd.

Karnataka HC25 Jan 2024MFA/468/2017

Case brief

AI extract

What is this about?

Claimant's appeal against Motor Accident Claims Tribunal award for pelvis and femur fractures. Court enhanced compensation from Rs.3,21,700 to Rs.4,35,800 by revising loss of earning capacity, pain and suffering, and adding heads for loss of amenities and income during laid-up period.

What did the court decide?

Enhanced compensation of Rs.1,14,100 with interest at 6% p.a. from date of petition till realization, in addition to the Tribunal award; appeal allowed in part.

V. Gopinatha Vs the Bharathi Axa General Ins. Co. Ltd. — Insurance | Karnataka HC (2024)

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1 - NC: 2024:KHC:3560 MFA No. 468 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 468 OF 2017 (MV-I)

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BETWEEN:

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V. GOPINATHA, S/O. VISHWANATHA MURTHY, AGED ABOUT 40 YEARS, NANDINI MILK DISTRIBUTOR, R/O NEAR STADIUM, RAJENDRA NAGAR, BESIDE AMBEDKAR KALYANA MANTAPA, CHITRADURGA - 577 501.

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…APPELLANT

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(BY SRI. SPOORTHY HEGDE N, ADVOCATE)

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AND:

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Digitally signed by 1. THE BHARATHI AXA GENERAL INS. CO. LTD., RAMYA D BY ITS BRANCH MANAGER, Location: High Court of BRANCH OFFICE, 1ST FLOOR, Karnataka THE FERNS IRON SURVEY NO. 28, DAVALAGIRI BADAVANE, CHITRADURGA - 577 501.

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VENUGOPAL, S/O. H. SRINIVAS, AGED AB0UT 26 YEARS, OWNER OF CAR BEARING REG. NO. KA-16/B-9891, R/O. 2ND STAGE, 2ND CROSS,

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NC: 2024:KHC:3560 MFA No. 468 of 2017

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DAVALAGIRI BADAVANE, CHITRADURGA - 577 501.

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…RESPONDENTS

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(BY SRI. JAGADISH P.S, ADVOCATE FOR R1; R2 NOTICE DISPENSED WITH VIDE ORDER DATED 05.03.2018)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.09.2016 PASSED IN MVC NO.105/2015 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, & ADDITIONAL MACT-V, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal is filed by the claimant challenging the impugned judgment and award dated 20.09.2016, passed by the Motor Accident Claims Tribunal-V, Chitradurga, in MVC No.105/2015, seeking enhancement of compensation awarded by the Tribunal.

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3 - NC: 2024:KHC:3560 MFA No. 468 of 2017

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The factum of accident, injuries sustained by the

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claimant and coverage of insurance are not in dispute.

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Heard the arguments of both sides and perused

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the records.

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In the present case, the Tribunal has awarded

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compensation as under:

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1	Towards loss of earning capacity due to disability	Rs.2,26,800/-
2	Towards pain and suffering	Rs.40,000/-
3	Towards further treatment	Rs.40,000/-
4	Towards diet, attendant charge and traveling expenses	Rs.10,000/-
5	Towards medical expenses	Rs4,900/-
	Total	Rs.3,21,700/-

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From the medical evidence on record, it is proved

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that the claimant had suffered fracture of pelvis of both hips and fracture of neck of right femur, but the Tribunal while determining the compensation has not adopted the correct parameters. Hence, considering the nature of injuries sustained by the claimant, the compensation awarded by the Tribunal is on the lower side and

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4 - NC: 2024:KHC:3560 MFA No. 468 of 2017

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therefore, the claimant is entitled for enhancement of compensation.

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On analysing the medical evidence on record, the nature of injuries sustained by the claimant and the fact that he had undergone surgery by inserting rod and screws for the fracture that he has suffered, the compensation of Rs.40,000/- awarded by the Tribunal towards ‘Pain and sufferings’ is on the lower side. Hence, the same is enhanced to Rs.50,000/-.

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The compensation awarded towards Future Medical Expenses; Diet, attendant charge, traveling expenses and Medical expenses are kept intact.

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Since the Tribunal has not awarded any compensation towards Loss of amenities, an amount of Rs.30,000/- is awarded under the said head.

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The doctor has assessed the permanent physical disability of the claimant at 53.11% to the left lower limb, but not to the whole body. Therefore, the Tribunal was

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5 - NC: 2024:KHC:3560 MFA No. 468 of 2017

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just and proper in considering 1/3rd out of total disability of 53.11%, which would come to 18% to the entire body. Considering the nature of injuries as discussed above and the claimant was a Distributor of Nandini Milk as well as the fact that the accident is of the year 2014, the notional income of the claimant has to be taken at Rs.8,500/- per month as recognized by the Karnataka State Legal Services Authorities. As the claimant was aged about 39 years, the appropriate multiplier applicable is '15'. Therefore, 'loss of earning capacity due to disability' is reassessed and quantified as Rs.2,75,400/- (Rs.8,500 x 18% x 15 x 12).

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Further, the Tribunal has not awarded any amount towards 'Loss of income during the laid up period'. Taking into consideration that the claimaint might not have attended the work for a period of 3 months, a compensation of Rs.25,500/- (Rs.8,500/- x 3 months) is awarded under the said head.

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6 - NC: 2024:KHC:3560 MFA No. 468 of 2017

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The compensation awarded by the Tribunal

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under the head ‘Future Medical Expenses’ is just and

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proper and the same is kept intact.

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Thus, in all, the appellant/claimant is entitled for

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total compensation under various heads as follows:

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1	Towards loss of earning capacity due to disability	Rs.	2,26,800/-	2,75,400/-
2	Towards pain and suffering	Rs.	40,000/-	50,000/-
3	Towards further treatment	Rs.	40,000/-	40,000/-
4	Towards diet, attendant charge and traveling expenses	Rs.	10,000/-	10,000/-
5	Towards medical expenses	Rs.	4,900/-	4,900/-
6	Towards loss of income during laid up period (8,500 x 3 months)	Rs.		25,500/-
7	Towards loss of amenities	Rs.		30,000/-
	TOTAL	Rs.	3,21,700/-	4,35,800/-

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The Tribunal has awarded the total compensation

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of Rs.3,21,700/-, but the appellant/claimant is entitled for

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7 - NC: 2024:KHC:3560 MFA No. 468 of 2017

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total compensation of Rs.4,35,800/-. Hence, the appellant/claimant is entitled to enhanced compensation of Rs.1,14,100/- (Rs.4,35,800/- - Rs. 3,21,700/-), along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.

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Accordingly, I proceed to pass 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 dated 20.9.2016 passed by the Tribunal in MVC No.105/2015 by the Motor Accident Claims Tribunal-V, Chitradurga, is hereby modified holding that the claimant is entitled for enhanced compensation of Rs.1,14,100/- (Rupees One Lakh Fourteen Thousand and One Hundred only) along with interest @ 6% p.a., from the date of petition till its realization, in addition to what has been awarded by the Tribunal;

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iii. Costs made easy;

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8 - NC: 2024:KHC:3560 MFA No. 468 of 2017

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iv. Ordered accordingly.

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v. The other observations and findings of the Tribunal

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are kept in tact.

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Sd/JUDGE

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NSU/List No.: 1 Sl No.: 52 CT: BHK

V. Gopinatha v. the Bharathi Axa General Ins. Co. Ltd.

Case brief

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What did the court decide?

V. Gopinatha v. the Bharathi Axa General Ins. Co. Ltd.

Case brief

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