Partly allowed

Deepak K.G. v. Sugu G @ Sukumaran

Karnataka HC14 Mar 2024MFA/542/2023

Case brief

AI extract

What is this about?

Father and son claimants injured in a car collision sought enhancement of motor accident compensation awarded by the tribunal. The court revised income, disability, multiplier and head-wise amounts, enhancing totals to Rs.27,01,800 and Rs.17,87,251 with interest at 6% p.a.

What did the court decide?

Enhanced compensation of Rs.27,01,800 (MVC 309/2020) and Rs.17,87,251 (MVC 310/2020), payable within four weeks with 6% p.a. interest; tribunal's deposit conditions intact.

Deepak K.G. Vs Sugu G @ Sukumaran — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:10615 MFA No. 542 of 2023 C/W MFA No. 537 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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MISCELLANEOUS FIRST APPEAL NO. 542 OF 2023 (MV-I)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 537 OF 2023 (MV-I) IN MFA NO. 542/2023

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BETWEEN:

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DEEPAK K.G, S/O GOVINDANAIKA, AGED ABOUT 23 YEARS, HOTEL OWNER, KARAKUCHHI A COLONY, LAKKAVALLI HOBLI, TARIKERE TALUK, CHIKKAMGALURU DISTRICT.

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…APPELLANT

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(BY SRI. SATHISHA T, ADVOCATE)

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Digitally signed by V KRISHNA Location: High Court of Karnataka

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AND:

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SUGU G @ SUKUMARAN, S/O LATE P.K. GOPALA NAMBIYAR, AGED ABOUT 48 YEARS, CONTRACTOR, OWNER AND DRIVER OF SWIFT CAR BEARING NO. KA-18-P-2115, R/O KALLI KOPPA VILLAGE, B.H. KAIMARAA, N.R. PURA TALUK, CHIKKAMAGALURU DISTRICT - 577 101.

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THE MANAGER, IFCO TOKIO GENERAL

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INSURANCE COMPANY LTD., NO. 35, 1st FLOOR, KANTHARAJ URS ROAD, KUVEMPU NAGAR, MYSURU - 570 023.

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NOW REPRESENTED BY THE MANAGER, IFCO TOAKIO GENERAL INSURANCE COMPANY LTD., NO. 141, 3RD MAIN, EAST OF NGEF LAYOUT, KASTURINAGAR, BENGALURU - 560 043.

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…RESPONDENTS

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(BY SRI. B. PRADEEP, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 02.06.2022 PASSED IN MVC NO.310/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, TARIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO.537/2023

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BETWEEN:

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GOVINDANAIKA, S/O LATE MALLANAIKA, AGED ABOUT 53 YEARS, HOTEL OWNER, KARAKUCHHI A COLONY, LAKKAVALLI HOBLI, TARIKERE TALUK, CHIKKAMAGALURU DISTRICT.

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…APPELLANT

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(BY SRI. SATHISHA T, ADVOCATE)

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AND:

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SUGU G @ SUKUMARAN, S/O LATE P.K. GOPALA NAMBIYAR, AGED ABOUT 48 YEARS, CONTRACTOR, OWNER AND DRIVER OF SWIFT CAR BEARING NO. KA-18-P-2115, R/O KALLI KOPPA VILLAGE, B.H. KAIMARAA, N.R. PURA TALUK, CHIKKAMAGALURU DISTRICT - 577 101.

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THE MANAGER, IFCO TOKIO GENERAL INSURANCE COMPANY LTD., NO. 35, 1st FLOOR, KANTHARAJ URS ROAD, KUVEMPU NAGAR, MYSURU - 570 023.

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NOW REPRESENTED BY THE MANAGER, IFCO TOAKIO GENERAL INSURANCE COMPANY LTD., NO. 141, 3RD MAIN, EAST OF NGEF LAYOUT, KASTURINAGAR, BENGALURU - 560 043. …RESPONDENTS (BY SRI. B. PRADEEP, ADVOCATE FOR R2; VIDE ORDER DATED 24.01.2023, NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.06.2022 PASSED IN MVC NO.309/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRL. JMFC, TARIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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These two appeals are preferred by the claimants challenging the judgment and award dated 02.06.2022 passed by the senior Civil Judge and Additional MACT, Tharikere (for short ‘the Tribunal’) in MVC.Nos.310/2020 and 309/2020. These appeals are founded on premise of inadequate and meager compensation awarded by the tribunal.

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Parties to these appeals shall be referred to as

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per their status before the tribunal.

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The brief facts of the case are as under:

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The claimants in both these cases i.e., MVC

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Nos.310/2020 and 309/2020 are son and father respectively. The petitioners/father and son were traveling in Maruthi Car bearing Registration NO.KA-18/N-0940 when they reached near Kadappa's areca garden, the driver of the Maruthi Swift car bearing No.KA.18/P-2115

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i.e., respondent No.1 who came from the opposite direction in a rash and negligent manner and dashed against the car of the claimants, due to which both the father and son/claimants suffered grievous injuries. Due to the severe injuries suffered and permanent physical disability due to occurrence of the accident. Claimants filed respective claim petition seeking compensation against the respondents.

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3.1. On service of notice, respondents/owner cum driver and Insurance company filed statement of objections, denied the claim of the claimants including age, avocation, income and negligence attributed against the driver of the offending car. The disability and injuries suffered and sought for dismissal of the claim petition.

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

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3.3. In order to substantiate the issues and to

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establish the case, the claimant got examined himself as PW.1 and another as PW.2 and got marked documents as

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Exs.P1 to P37. On the other hand, respondents got marked document as Ex.R1.

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3.4. On the basis of material evidence, both oral and documentary and on hearing the submissions of learned counsel for both parties, the tribunal awarded compensation to an extent of Rs.17,68,800/- in MVC. No.309/2020 of the father namely Govindanaika and Rs.14,15,651/- in MVC.No.310/2020 in the case of Deepak K.G, along with interest at 6% p.a.

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3.5. Being aggrieved by the inadequate

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compensation awarded by the tribunal, the claimants are before this Court challenging the impugned judgment and award and consequently seeking enhancement of the same.

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The main contention of the learned counsel for appellants/claimants is that, the tribunal has committed an error in awarding inadequate compensation, which calls for interference at the hands of this Court. Accordingly, he seeks enhancement of compensation.

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Per contra , learned counsel for respondentInsurance Company submits that the tribunal has rightly awarded just and reasonable compensation, which does not call for interference. Therefore, on these grounds, he seeks to dismiss the appeal.

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Having heard learned counsel for the appellants/claimants and learned counsel for the respondent/Insurance Company perused the impugned judgment and award of the tribunal. Documents at Exs P1 to P8 depict filing of the FIR and charge sheet against the driver of the offending car which is not challenged or disputed. Ex.P9 to P37 are the medical records of both claimants to show the magnitude of injury for the disability suffered by production of medical bills and medical certificates. Negligence is rightly attributed against the driver of the offending car and the same is proved.

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Now coming to the question of age, avocation,

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income, disability suffered and the multiplier applicable for

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awarding compensation in the case of Govindanaika in MVC.No.309/2020, the tribunal has taken the age of the claimant to be 45 years and applied the multiplier of '13' where as the appropriate multiplier for the age 45 would be '14'. Hence, the multiplier required to be taken as '14' instead of '13'.

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Doctor Sri.Monappa Naik has been examined and his evidence is placed on record, which is forthcoming in the impugned judgment as well, but in the exhibits at Annexure to the judgment nothing is cogently established. So also in the documents exhibited as Exs.P6 to P10 in both the cases, the Doctor Monappa Naik has opined the disability to an extent of 54% to the right lower limb and 34% to the left lower limb, but the tribunal has assessed the disability to the left lower limb at 25% to this claimant. The assessment of disability is without any proper basis by the tribunal. Even if 54% is taken as the disability to right lower limb then also the straight jacket formula cannot be adopted for assessing the disability in a mathematical

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manner by arriving at 25% without any proper basis by the tribunal.

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circumstances, there are several fractures suffered by the claimant. Therefore, this Court is of the opinion that 30% is to be taken as disability to the whole body. Even if 54% is divided by 2, it would be 27% and additional 3% would be for the left lower limb for arriving the disability to the whole body. The income taken by the tribunal at Rs.12,000/- is due to non-production of any proof. It is seen that Ex.P21 produced is the license to run the hotel. Therefore, the claimant cannot be relegated to the position or status of coolie or daily wager. The notional income chart for the year 2020 prescribes Rs.14,500/-. Hence, something more will have to be awarded to the claimant as he was running a hotel as stated on oath and on perusal of Ex.P21, it affirms the same. Therefore, this Court is of the opinion that reasonable income has to be taken for awarding just and reasonable compensation.

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Hence, Rs.20,000/- is taken as the income of the claimant in this case.

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In view of the fact that the claimant has suffered disability to an extent of 30%, the claimant would be entitled to loss of future prospects as it affects the future earning capacity due to the functional disability. The claimant being aged 45 years, 25% is added towards future prospects.

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In view of the fact that the claimant is aged 45 years and the multiplier is to be taken at '14', the loss of future income due to disability would be Rs.12,60,000/- (Rs.20,000/-+25%=Rs.25,000/-x 12x 14 x 30%).

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Towards pain and suffering, the tribunal has awarded Rs.80,000/-. Therefore, this Court deems it appropriate to award additional amount of Rs.30,000/-. In all, the claimant would be entitled to Rs.1,10,000/- under this head.

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Towards medical expenses a sum of

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Rs.10,87,800/- is awarded on the basis of actual bills

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produced by the claimant. The same is retained.

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Towards loss of income during laid up period, the tribunal has awarded Rs.48,000/-. The claimant would require atleast six months period to recuperate and to get back to his normal day to day activities. Therefore, the claimant would be entitled to Rs.1,20,000/-

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(Rs.20,000/- x 6) under this head.

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Towards loss of amenities and happiness, the tribunal awarded Rs.30,000/-. Therefore, this Court deems it appropriate to award additional amount of Rs.25,000/-. In all, the claimant would be entitled to Rs.55,000/- under this head.

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Towards Attendant, conveyance, food and nourishment charges, the tribunal has awarded

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Rs.30,000/- whereas the claimant was in-patient for 44 days. Hence, Rs.44,000/- is awarded as against Rs.30,000/-.

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Towards future medical expenses, the tribunal

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has awarded Rs.25,000/-. The same is retained.

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In view of the above, the claimant in this case would be entitled to a total compensation of

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Rs.27,01,800/- as against Rs.17,68,800/- as mentioned

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in the table below:

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Heads	Amount in Rs.
Loss of future income	12,60,000-00
Pain and suffering	1,10,000-00
Medical expenses	10,87,800-00
Loss of income during laid up period	1,20,000-00
Loss of amenities and happiness	55,000/-
Attendant, conveyance, food and nourishment charges	44,000/-
Future medical expenses	25,000/-
TOTAL	Rs.27,01,800/-

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IN MFA NO.542/2023:

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In this case, the tribunal has taken the income of

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Rs.12,000/- which requires to be enhanced and he cannot be equated to that of a labour or coolie. So he has to be

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awarded more than the notional income chart at Rs.14,500/-. The income as taken in this case is Rs.15,000/- p.m. As the claimant is aged 20 years, the appropriate multiplier of '18' is taken which would not call for interference. The doctor Monappa Naik has opined the disability of 31% to the right lower limb and 31% to left lower limb. The tribunal has assessed the disability at 20%. Hence, this Court is of the opinion that 25% would be just and reasonable to be taken as disability considering the nature of injuries sustained by the claimant herein.

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Therefore, the loss of income due to disability in this case would be Rs.8,10,000/( Rs.15,000/x12x18*25%) as against Rs.5,18,400/-.

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Towards pain and suffering, the tribunal has awarded Rs.80,000/-. Therefore, this Court deems it appropriate to award additional amount of Rs.20,000/-. In all, the claimant would be entitled to Rs.1,00,000/- under this head.

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Towards loss of income during laid up period, the tribunal has awarded Rs.48,000/-. The claimant would require atleast five months period to recuperate and to get back to his normal day to day activities. Therefore, the claimant would be entitled to Rs.75,000/- (Rs.15,000/- x 5) under this head.

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Towards loss of amenities and happiness, the tribunal awarded Rs.30,000/-. Therefore, this Court deems it appropriate to award additional amount of Rs.25,000/-. In all, the claimant would be entitled to Rs.55,000/- under this head.

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Towards medical expenses the tribunal has awarded Rs.7,09,251/- . The same is retained.

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Towards Attendant, conveyance, food and nourishment charges tribunal has awarded Rs.30,000/whereas claimant was in-patient for 38 days. Hence, Rs.38,000/- is awarded under this head.

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In view of the above, the claimant in this case would be entitled to a total compensation of

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Rs.17,87,251/- as against Rs.14,15,651/- as mentioned in the table below:

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Heads	Amount in Rs.
Loss of future income	8,10,000-00
Pain and suffering	1,00,000-00
Medical expenses	7,09,251-00
Loss of income during laid up period	75,000-00
Loss of amenities and happiness	55,000/-
Attendant, conveyance, food and nourishment charges	38,000/-
TOTAL	Rs.17,87,251/-

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Accordingly, I pass the following:

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ORDER

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i) Both the appeals are allowed-in-part;

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ii) The judgment and award dated 02.06.2022 passed in MVC.Nos.310/2020 and 309/2020 by Senior Civil Judge and Additional MACT at Tharikere, is modified;

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16 -

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iii) The claimants are entitled to a total compensation of Rs.27,01,800/- as against Rs.17,68,800/- in MVC.No.309/2020 and total compensation of Rs.17,87,251/- as against Rs.14,15,651/- in MVC.No.310/2020 awarded by the tribunal;

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iv) The enhanced compensation amount shall be paid with interest @ 6% p.a.;

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v) The enhanced compensation shall be paid within a period of four weeks from the date of receipt of copy of this order along with interest at 6% p.a;

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vi) All other terms and conditions of the deposit stipulated by the tribunal shall stand intact.

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Sd/JUDGE

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PK CT: BHK

Deepak K.G. v. Sugu G @ Sukumaran

Case brief

What is this about?

What did the court decide?

Deepak K.G. v. Sugu G @ Sukumaran

Case brief

What is this about?

What did the court decide?

What the court decided

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