Partly allowed

Mahadeva Naik B. M. v. P. R. Rajendran

Karnataka HC20 Jan 2024MFA/5494/2021

Case brief

AI extract

What is this about?

Claimant injured when a bus dashed his motor cycle sought enhancement of compensation for permanent disability and reduced earning capacity. The High Court declined multiplier method as he continued working, but enhanced several heads, awarding Rs.3,94,420 against Rs.2,22,300 with interest.

What did the court decide?

Enhanced compensation of Rs.3,94,420 with 6% interest on enhanced portion, payable within four weeks; tribunal award modified accordingly.

Mahadeva Naik B. M. Vs P. R. Rajendran — Insurance | Karnataka HC (2024)

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1 - NC: 2024:KHC:2790 MFA No. 5494 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO.5494 OF 2021(MV-I)

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BETWEEN:

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MAHADEVA NAIK B.M., S/O MARI NAIK, AGED ABOUT 27 YEARS, RESIDING AT: BENDEDODDI VILLAGE, HUNASANAHALLI POST, KODIHALLI HOBLI, KANAKAPURA TALUK, RAMANAGAR DISTRICT.

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…APPELLANT

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(BY SRI. SREENIVASAIAH A., ADVOCATE)

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AND:

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Digitally signed by CHAITHRA P Location: High Court of Karnataka

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P. R. RAJENDRAN, S/O RAMASAMY, PROP: SRS TRAVELS, NO.4/1, URUVAIYAR ROAD, ACHARIYAPURAM, MANGALAM POST, VILLIANUR, PUDUCHERRY - 605 110.

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THE MANAGER, NATIONAL INSURANCE CO. LTD., NO.144, 2ND FLOOR, SHUBHRAM COMPLEX M.G. ROAD, BANGALORE - 560 001.

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…RESPONDENTS

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(BY SRI. RAVISH BENNI, ADVOCATE FOR R2; NOTICE TO R1 DISPENSED)

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2 - NC: 2024:KHC:2790 MFA No. 5494 of 2021

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.02.2020 PASSED IN MVC NO.1002/2018 ON THE FILE OF III ADDITIONAL JUDGE AND MACT, BENGALURU (SCCH-18), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal is preferred by the claimant challenging the judgment and award dated 06.02.2020 passed by III Additional Judge and Motor Accident Claims Tribunal, Bengaluru (for short ‘the Tribunal’) in MVC No.1002/2018. This appeal is founded on the premise of inadequacy of compensation. Hence, the appellant seeks enhancement of compensation.

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2. Parties to the appeal shall be referred to as per their status before the Tribunal.

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3. Brief facts of the case are as under;

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That on 29.12.2017 at about 9.30 p.m., the claimant

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was riding a motor cycle bearing registration No.KA-05KE-3774, when he reached near Sarjapura Main Road

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3 - NC: 2024:KHC:2790 MFA No. 5494 of 2021

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junction, Madivala, at that time, the driver of new bus without body built bearing Engine No.HWEZ429340 and Chassis No.MB1PREHD1HEVZ5005 drove the same in a rash and negligent manner with a high speed and dashed against the motor cycle from rear side. Due to the impact of the accident, claimant fell down and sustained grievous

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injuries. Immediately, he was shifted to St.John's Hospital, Bengaluru, wherein, he took treatment as an inpatient and underwent surgery.

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3.1 It is stated that the claimant was hale and healthy prior to the occurrence of accident and he was aged about 25 years, working as Security Guard in Terrier Security Agency and earning an income of Rs.20,000/- per month. The claimant spent huge amount towards medical expenses and he has suffered permanent disability which has resulted in loss of future earning capacity so also mentally and emotionally, he has been traumatized. Hence, the claimant filed a claim petition seeking compensation.

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3.2 It is stated that the claimant got examined the

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Doctor, who treated him and the said Doctor has opined disability to an extent of 35% to the right lower limb and 18% to the whole body. On these basis contends that there is a disability to an extent of 18% towards future earning capacity. However, in the cross-examination of the Doctor, it is elicited that he is not the treated Doctor and fractures are united. Though evidence is lead by the Doctor and disability assessed as 18% to the whole body, the tribunal has not agreed and accepted the version of the Doctor to award any disability for the reason that the claimant has continued to work in the very same Organization as Security Guard and there is no depreciation or reduction in his salary or that his earning capacity has been reduced due to the accident.

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3.3 On service of notice, respondent No.1 has not appeared before the Court and he was placed ex parte . Respondent No.2 appeared before the Court and filed statement of objections denying the averments made in

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the claim petition by the claimant so also the negligence that is attributed against the driver of the bus without body i.e., Chassis. It is also denied by respondent No.2 with regard to age, avocation, income and disability suffered by the claimant and also pleaded that excessive compensation is sought for in the claim petition. Hence, sought for dismissal of the claim petition.

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

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3.5 In order to substantiate the issues and to establish the case, the claimant got examined himself as PW.1 and Doctor as PW.2 and got marked documents as Exs.P1 to P14. On the other hand, respondent No.2 has examined the Manager of Terrier Security Services Pvt.Ltd., Bengaluru as RW.1 and got marked documents as Exs.R1 to R4.

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3.6 On the basis of material evidence, both oral and

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documentary and on hearing the submissions of learned

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counsel for both parties, the tribunal awarded

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compensation of Rs.2,22,300/- with interest @ 8% p.a. from the date of petition till the date of deposit and also held that respondent Nos.1 and 2 are jointly and severally liable to pay the compensation to the claimant and respondent No.2 being the insurer was directed to deposit the amount within two months from the date of the order.

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3.7 Being aggrieved by the meager compensation

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awarded by the tribunal, the claimant is before this Court challenging the impugned judgment and award.

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It is the vehement contention of the learned

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counsel for appellant-claimant that the tribunal having considered the aspect of there being any serious functional disability or reduction in the income of claimant has awarded an amount of Rs.50,000/- towards reduced income due to disability or damages due to disability. Though learned counsel for appellant submits that there may not be reduction in the salary or the claimant being thrown out of the Company, but, admittedly, there is an

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injury suffered by the claimant due to the accident and negligence caused by the offending vehicle i.e., bus that cannot be a ground to not grant compensation towards loss of future earning capacity. He also contends that the claimant working in a private sector of security agency, his job could be terminated and he also contends that he is

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not a Government employee to show that his job is permanent and he will not be removed till he attaining the age of 58 or 60 years of retirement. Therefore, he seeks suitable amount of damages under this head by applying multiplier methodology.

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Per contra , learned counsel for Insurance

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Company seriously controverted this and opposed to such arguments contending that the claimant has continued in occupation earning the same salary and there is no future earning capacity or income and seeks dismissal of the appeal.

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Having heard the learned counsel for appellant and learned counsel for respondent-Insurance Company, it

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is not in dispute that the accident occurred on 29.12.2017, when the claimant was riding his motor cycle, at that time, the bus came from the rear side dashed against the claimant, who was riding his motor cycle leading to the injuries and expenditure incurred financially. In order to establish these aspects, involvement of vehicle, accident having occurred on public way, the claimant has produced Exs.P1 to P3, P5 and P7. On perusal of the same, it is seen that FIR and charge sheet has been laid against the driver of the bus, negligence is proved, which is not in dispute or controverted by respondent No.1 or the driver. Therefore, the negligence is rightly attributed against the driver of the bus, consequently, the liability is fastened on the owner and the policy in subsistence as on the date of occurrence of accident, liability is rightly shifted to respondent No.2-Insurance Company.

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Now coming to the aspect of age, avocation and income, though it is stated by the claimant that he was working as a Security Guard and earning Rs.20,000/- per

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month, the documentary proof has not been placed by the claimant himself. However, on the basis of the evidence adduced by respondent No.2, to summon the employer and produced Exs.R1 to R4, the salary details are forthcoming which clearly evidences and depicts the claimant was working in the said Security Agency and taking income of Rs.12,440/- for the month of January2018, the tribunal has rightly taken the income to the Rs.12,440/- for computation in this case.

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The arguments put forth by the learned counsel for appellant cannot be accepted to grant loss of future earning capacity by using multiplier methodology for the reason that the claimant has not produced any piece of document to show that he is terminated from employment. On the contrary, he has continued in the same employment and he may secure more income but that itself would not negative the fact that the claimant has suffered injuries due to the accident and would not incur any difficulties in his day to day working capacity and

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may be in future earning capacity, because of his disability, there could be possibility that the claimant may be removed and there may be chances that the claimant would be the first option for removal from his service due to his disability. However, all these eventualities and assessment of future events cannot be made by this Court unless there is a material placed before the Court. Under the circumstances, the multiplier method cannot be awarded to grant compensation under the head loss of future earning capacity.

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Be that as it may, the injuries suffered are not disputed, in view of taking into consideration the disability of 18% to the whole body as opined by the Doctor. I deem it appropriate to award an additional amount of Rs.50,000/- towards reduced ability of employment due to disability. In all, the claimant would be entitled to Rs.1,00,000/- under this head as against Rs.50,000/-.

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Towards pain and sufferings, tribunal has awarded Rs.40,000/-. This Court deems it appropriate to

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NC: 2024:KHC:2790 MFA No. 5494 of 2021

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award an additional amount of Rs.25,000/-. In all, the claimant would be entitled to Rs.65,000/- under this head.

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Towards loss of amenities, tribunal has awarded Rs.20,000/-. This Court deems it appropriate to award an additional amount of Rs.25,000/-. In all, the claimant would be entitled to Rs.45,000/- under this head.

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The tribunal has awarded a sum of Rs.10,000/towards attendant, nourishment and conveyance charges and Rs.44,900/- towards medical expenses, the same does not call for interference.

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Towards loss of income during laid up period, the tribunal has awarded Rs.37,400/-. The claimant would require atleast eight months period to recuperate and to get back to his normal day to day activities. In view of taking the income at Rs.12,440/-, the claimant would be entitled to Rs.99,520/- (Rs.12,440/- x 8) under this head.

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Towards future medical expenses, tribunal has awarded Rs.20,000/-. This Court deems it appropriate to award an additional amount of Rs.10,000/-. In all, the claimant would be entitled to Rs.30,000/- under this head.

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In view of the above, the claimant would be entitled to a total compensation of Rs.3,94,420/- as

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against Rs.2,22,300/- as mentioned in the table below:

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Heads	Amount in Rs.
Reduced eligibility of employment due to disability	1,00,000-00
Pain and sufferings	65,000-00
Loss of amenities	45,000-00
Attendant, nourishment and conveyance charges	10,000-00
Medical expenses	44,900-00
Loss of income during laid up period	99,520-00
Future medical expenses	30,000-00
TOTAL	3,94,420-00

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Accordingly, I 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 judgment and award dated 06.02.2020 passed by III Additional Judge and Motor Accidents Claims Tribunal, Bengaluru in MVC.No.1002/2018 is modified;

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iii) The claimant would be entitled to a sum of Rs.3,94,420/- as against Rs.2,22,300/- awarded by the tribunal;

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iv) The interest awarded by the tribunal at the rate of 8% per annum on the compensation amount of Rs.2,22,300/- is left undisturbed. The enhanced compensation shall carry interest at the rate of 6% per annum;

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v) The enhanced compensation amount shall be paid by the respondent within a period of four weeks from the date of receipt of a copy of this order;

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vi) The enhanced compensation amount shall be released in favour of claimant, upon proper verification.

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Sd/JUDGE

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CPN CT: BHK

Mahadeva Naik B. M. v. P. R. Rajendran

Case brief

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Mahadeva Naik B. M. v. P. R. Rajendran

Case brief

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