Allowed

Kabbalaiah @ Kabbala v. Satheesh Kumar

Karnataka HC27 Mar 2024MFA/5065/2013

Case brief

AI extract

What is this about?

Motor accident compensation appeal seeking enhancement. The court upheld 20% negligence for the claimant but removed Tribunal's deduction for lack of valid driving licence, recalculated loss of earning capacity with multiplier 17 and enhanced heads, reassessing total compensation at Rs.1,70,400/- payable by the insurer.

What did the court decide?

Compensation enhanced and reassessed at Rs.1,70,400/- plus 6% interest, payable by respondent insurer within two months.

Kabbalaiah @ Kabbala Vs Satheesh Kumar — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:12759 MFA No. 5065 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL NO.5065 OF 2013 (MV)

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BETWEEN:

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KABBALAIAH @ KABBALA S/O VENKATESH, AGED ABOUT 28 YEARS, R/AT:NEARALAHALLI DODDY, MULLALI POST, OYYAMBALLI HOBLI, KANAKAPURA TALUK, RAMANAGARAM DISTRICT-571 511.

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…APPELLANT

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(BY SRI. S.S.HAVERI., ADVOCATE)

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AND:

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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SATHEESH KUMAR S/O V.T.CHANDRASHEKAR, NO.54, GOPI SETTIYUR, RAMAPURA POST, KOLLEGAL TALUK, CHAMARAJANAGAR DISTRICT, KARNATAKA-571 440.

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UNITED INDIA INS. CO.LTD., REGIONAL OFFICE, NO.25, 2^ND FLOOR, SHANKARANARAYANA BUILDING, M.G.ROAD, BANGALORE-560 001. REPT. BY ITS REGIONAL MANAGER.

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…RESPONDENTS

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(R1-SERVED AND UNREPRESENTED; BY SRI. S.KRISHNA KISHORE., ADVOCATE FOR R2)

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NC: 2024:KHC:12759 MFA No. 5065 of 2013

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED:03.01.2013 PASSED IN MVC NO.4082/2011 ON THE FILE OF THE IV ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE.

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THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Sri.S.S.Haveri., learned counsel for the appellant and Sri.S.Krishna Kishore., learned counsel for respondent No.2 have appeared in person.

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Notice to the respondents was ordered on 17.09.2014. A perusal of the office note depicts that notice to respondent No.1 is served and unrepresented. He has neither engaged the services of an advocate nor conducted the case as party in person.

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For the sake of convenience, the parties are referred to as per their status and rankings before the Tribunal.

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The brief facts are these:

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On the 21^st day of May 2011 at about 4:30 pm., the claimant was proceeding on a Bajaj Boxer motorcycle bearing Registration No.KA.09/V.2144. When they reached Uganeyapalya Road Cross, near Sathyagala Palya, a lorry

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3 - NC: 2024:KHC:12759 MFA No. 5065 of 2013

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bearing Registration No.KL.07/7009 came from Uganuru in a rash and negligent manner and hit their motorcycle. Due to the impact, the claimant fell and sustained grievous injuries. Immediately, he was shifted to Kollegala Government Hospital, (K.R.Hospital) and after necessary treatment, he was shifted to KIMS Hospital, Bangalore, wherein he took treatment as an inpatient from 23.05.2011 to 06.06.2011 and underwent surgery. Contending that he is entitled for compensation, the claimant filed claim petition.

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In response to the notice, the respondents appeared through their respective counsel and filed separate written statement denying the petition averments. Among other grounds, they prayed for dismissal of the petition.

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Based on the above pleadings, the Tribunal framed issues, parties led evidence and marked the documents. The Tribunal vide Judgment dated:03.01.2012 partly allowed the claim petition. It is this judgment that is called into question in this appeal on several grounds as set-out in the Memorandum of appeal.

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Learned counsel for the respective parties have urged several contentions. Heard, the contentions urged on

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NC: 2024:KHC:12759 MFA No. 5065 of 2013

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behalf of the respective parties and perused the appeal papers and also the records with utmost care.

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The following points would arise for consideration:

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Whether the Tribunal is justified in concluding that the claimant has attributed 40% of negligence to the accident?

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Whether the Claimant is entitled for enhanced compensation?

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The facts are sufficiently stated and do not require reiteration. The Tribunal extenso referred to the material on record and held that the claimant has attributed 20% of negligence to the accident and 20% for not having a valid driving license. This is unsustainable in law. The material evidence on record depicts that it is an head-on collision between the injured vehicle and the offending vehicle in a curve road. It is pivotal to note that the claimant examined himself as PW1 and he has seen the offending vehicle by 20 feet distance. If that be so, the claimant should have been more careful and cautious while riding the motorcycle. Hence, the conclusion by the Tribunal that the claimant has attributed 20% of negligence to the accident is just and proper. However, the finding that the

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NC: 2024:KHC:12759 MFA No. 5065 of 2013

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claimant has attributed 20% of the negligence for not having a valid driving license is untenable. Therefore, the Insurance Company is directed to satisfy 80% of the award amount.

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Furthermore, the Claimant's appeal is one for enhancement of compensation. The grounds urged in the present appeal are mainly relating to the meager compensation awarded under different heads by the Tribunal. The Claimant has suffered pain and agony owing to the injuries sustained in the accident in question.

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It is noticed that the Tribunal has awarded compensation of Rs.82,620/- (Rupees Eighty Two Thousand Six Hundred and Twenty only) towards Loss of earning capacity due to disability. It is contended that the claimant was earning Rs.6,000/(Rupees Six Thousand only) per month. Hence, the same is taken into consideration. The age of the claimant was 27 years as on the date of accident, hence the multiplier 17 is to be adopted.

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At the time of calculation, learned counsel for the claimant and Insurance Company jointly submits that the Tribunal has considered the disability at 9% and the same may be taken into consideration in this appeal also. Hence, the

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NC: 2024:KHC:12759 MFA No. 5065 of 2013

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amount towards loss of future earning capacity due to disability is calculated as under:

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Rs.6,000/- X 12 X 17 X 9/100 = Rs.1,10,160/-.

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The amount of Rs.13,760/- (Rupees Thirteen Thousand Seven Hundred and Sixty only) towards Medical expenses remains intact.

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This Court deems it appropriate to award Rs.30,000/(Rupees Thirty Thousand only) towards Pain and Suffering as against Rs.15,000/- (Rupees Fifteen Thousand only) and Rs.18,000/- (Rupees Eighteen Thousand only) towards Laid up period as against Rs.13,500/- (Rupees Thirteen Thousand Five Hundred only).

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The compensation of Rs.6,000/- (Rupees Six Thousand only) awarded towards attendant's charges and Rs.5,000/(Rupees Five Thousand only) towards Conveyance Charge remains intact.

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This Court deems it appropriate to award Rs.10,000/(Rupees Ten Thousand only) towards Nutritious food as against Rs.5,000/- (Rupees Five Thousand only).

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7 - NC: 2024:KHC:12759 MFA No. 5065 of 2013

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It is noticed that the Tribunal has not awarded compensation towards future medical expenses. Therefore, this Court deems it appropriate to award Rs.20,000/- (Rupees Twenty Thousand only) towards future medical expenses.

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Accordingly, this Court re-determines the

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compensation as under:-

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1.	Loss of earning capacity due to disability 6,000 x 12 x 17 x 9/100	1,10,160	Rs.1,10,160/-
2.	Medical expenses	13,760	Rs.13,760/-
3.	Pain and suffering	15,000 +15,000	Rs.30,000/-
4.	Laid up period	6,000 X 3	Rs.18,000/-
5.	Attendant's charge	6,000	Rs.6,000/-
6.	Nutritious food	5,000 +5,000	Rs.10,000/-
7.	Conveyance Charges	5,000	Rs.5,000/-
8.	Future medical expenses	20,000	Rs.20,000/-
		Total:	Rs.2,12,920/-
		Rounded off	Rs.2,13,000/-
	Less: 20% towards claimant(2,13,000 X 20	negligence of /100)	- Rs.42,600/-
	Reassess	ed compensation	Rs.1,70,400/-

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NC: 2024:KHC:12759 MFA No. 5065 of 2013

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Hence, the following:

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ORDER

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The Miscellaneous First appeal is

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allowed and the Judgment dated:03.01.2012 passed by the MACT, Bangalore (SCCH-6) in M.V.C.No.4082/2011 is modified to the extent stated hereinabove.

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The claimant is entitled for the

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reassessed compensation of Rs.1,70,400/- (Rupees One Lakh Seventy Thousand Four Hundred only) with 6% interest per annum from the date of the claim petition till the date of realization.

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The second respondent Insurance Company shall deposit the compensation amount along with 6% interest within a period of two months from the date of receipt of the certified copy of this Judgment.

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The Registry to draw the modified award accordingly.

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NC: 2024:KHC:12759 MFA No. 5065 of 2013

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5. The office is directed to transmit the

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records to the concerned Tribunal forthwith.

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Sd/JUDGE

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TKN List No.: 1 Sl No.: 33

Kabbalaiah @ Kabbala v. Satheesh Kumar

Case brief

What is this about?

What did the court decide?

Kabbalaiah @ Kabbala v. Satheesh Kumar

Case brief

What is this about?

What did the court decide?

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