Partly allowed

Shiva M @ Shivu v. New India Insurance Co. Ltd.

Karnataka HC19 Mar 2024MFA/6803/2022

Case brief

AI extract

What is this about?

Claimant injured when a taxi collided with a parked lorry sought enhancement of tribunal-awarded motor accident compensation. The court enhanced total compensation from Rs.3,69,920 to Rs.4,38,100, adjusting income, pain and suffering, loss of amenities and laid-up period heads, retaining liability ratio.

What did the court decide?

Total compensation enhanced to Rs.4,38,100 with 6% interest on enhancement, payable per tribunal's liability ratio within four weeks

Shiva M @ Shivu Vs New India Insurance Co. Ltd. — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:11180 MFA No. 6803 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO. 6803 OF 2022 (MV-I)

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BETWEEN:

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SHIVA M. @ SHIVU, S/O MALAIAH @ EDLUMALLAIAH, AGED ABOUT 31 YEARS,

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AGRICULTURIST AND SHEEP REARING, R/O RUDRAMMANAHALLI VILLAGE, HIREHALLI POST, THALUK HOBLI, CHALLAKERE TALUK, CHITRADURGA DISTRICT - 577 501.

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…APPELLANT

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(BY SMT. PREMASHREE A., ADVOCATE FOR SRI. SPOORTHY HEGDE N, ADVOCATE)

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AND:

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Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

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NEW INDIA INSURANCE CO. LTD., REPRESENTED BY ITS BRANCH MANAGER, 92, GN CHETTI ROAD, EAST COAST CHAMBERS, T.NAGAR, CHENNAI, TAMILNADU - 600 017.

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UNITED INSURANCE CO. LTD., REPRESENTED BY ITS MANAGER, MICRO OFFICE, OPPO. TALUK OFFICE, H.R. ROAD, MOLAKALMURU, CHITRADURGA DIST - 577 535.

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2 - NC: 2024:KHC:11180 MFA No. 6803 of 2022

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RAMLAL CHOWDHURI, S/O CHITRADHOWDURI, AGED ABOUT 53 YEARS, OWNER OF LORRY BEARING REG. NO.RJ-01-GB-8625,, THIHARI VILLAGE, VIA SRINAGAR, NASIRABAD TALUK, AJMIR DISTRICT, RAJASTHAN STATE.

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NAGESH K, S/O RAMUDU K, AGED ABOUT 48 YEARS, OWNER OF TAXI NO.KA-34-A-7102, R/O NO.32/A, 1ST CROSS, LEFT SIDE KAPPAGAL ROAD, BELLARY TOWN, BELLARY - 583 101.

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…RESPONDENTS

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(BY SRI. G.S.MARULAIAH, ADVOCATE FOR R1; SRI. RAVISH BENNI, ADVOCATE FOR R2; VIDE ORDER DATED 08.08.2023, NOTICE TO R3 AND R4 IS DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.11.2021 PASSED IN MVC NO.595/2019 ON THE FILE OF THE ITINERARY SENIOR CIVIL JUDGE, JMFC AND MACT, MOLAKALMURU, 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

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the judgment and award dated 26.11.2021 passed by the

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3 - NC: 2024:KHC:11180 MFA No. 6803 of 2022

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Itinerary Senior Civil Judge, JMFC and MACT, Molakalmuru (for short ‘the Tribunal’) in MVC No.595/2019. This appeal

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is founded on the premise of inadequacy of compensation.

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Hence, the appellant seeks enhancement of compensation.

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2. Parties to the appeal shall be referred to as per

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their status before the Tribunal.

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3. Brief facts of the case are as under;

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That on 17.05.2018 at about 2.30 p.m., the claimant

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was returning to his village in a tempo toofan taxi bearing registration No.KA-34-A-7102 along with his friends, when

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the vehicle came near NH.150(A), Garani cross, Taluk, Hirehalli, the driver drove the vehicle in a rash and negligent manner and dashed against the parked lorry bearing registration No.RJ-01-GB-8625. Due to the said impact, the claimant sustained grievous injuries along with other inmates of the taxi. He was immediately shifted to

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Government Hospital, Challakere and thereafter, to Government Hospital, Chitradurga and later to Chigateri hospital, Davanagere, he took treatment as an inpatient

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NC: 2024:KHC:11180 MFA No. 6803 of 2022

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for 30 days in all and the claimant spent more than Rs.6,00,000/- towards medical treatment.

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3.1 It is stated that the claimant was hale and healthy prior to the occurrence of accident. He was doing sheep rearing and agricultural work and earning an income of Rs.25,000/- per month and Rs.5,00,000/- per annum respectively. Due to the occurrence of accident and injuries suffered, the claimant is unable to do his work normally as he was doing prior to the occurrence of accident. Hence, the claimant filed a claim petition seeking compensation.

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3.2 On service of notice, respondent No.1 did not appear before the tribunal and he was placed ex parte . Respondent Nos.2, 3 and 4 appeared through their counsels and filed their respective statement of objections. Respondent No.2-Insurance Company denied the averments made in the claim petition including age, avocation, income and negligence attributed against the driver of the lorry and also contended that it was the

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NC: 2024:KHC:11180 MFA No. 6803 of 2022

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negligence on behalf of the driver of the maxi cab which dashed against the parked lorry. Therefore, there was no negligence on behalf of the driver of lorry or the owner of the lorry. It was also pleaded that the driver of the maxi cab did not possess a valid and effective driving licence and violated the terms and conditions of the policy. Hence, sought for dismissal of the claim petition.

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3.3 Respondent No.3-owner of the maxi cab denied

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the averments made in the claim petition and pleaded that the accident occurred due to the wrong parking by the driver of the lorry. He also contended that the driver of the maxi cab possessed a valid and effective driving licence and if at all liability is fastened on him, the same would have to be indemnified by respondent No.4, who is the insurer of the maxi cab. Hence, sought for dismissal of the claim petition.

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3.4 Respondent No.4-Insurance Company denied the averments made in the claim petition and pleaded that the contributory negligence on the part of the driver of the

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NC: 2024:KHC:11180 MFA No. 6803 of 2022

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lorry for having parked the lorry in a negligent manner in the middle of the road. Therefore, the contributory negligence would have to be fastened as against the driver of the lorry to a larger extent. If at all he had not parked the vehicle, the accident would have been avoided. It also pleaded that the Insurance Company is not liable to indemnify the owner as the driver of the maxi cab is found to possess an invalid licence and violated the terms and conditions of the policy. On these grounds, sought for dismissal of the claim petition.

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

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3.6 In order to substantiate the issues and to establish the case, the claimant got examined himself as PW.1 and the Doctor as PW.2 and got marked documents as Exs.P1 to P24. On the other hand, respondents examined a witness as RW.1 and got marked documents as Exs.R1 to 4.

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NC: 2024:KHC:11180 MFA No. 6803 of 2022

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3.7 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 of Rs.3,69,920/- with interest @ 7.5% p.a. from the date of petition till its deposit and also held respondent Nos.1 and 2 to be jointly and severally liable to pay 25% of the compensation proportionate interest and cost. Respondent Nos.3 and 4 to be jointly and severally liable to pay 75% of the compensation to the claimants.

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3.8 Being aggrieved by the meager compensation awarded by the tribunal, the claimant is before this Court seeking enhancement of compensation.

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It is the vehement contention of the learned counsel for appellant-claimant that the tribunal has committed an error in awarding meager compensation, which calls for interference at the hands of this Court. Accordingly, she seeks enhancement of compensation.

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8 - NC: 2024:KHC:11180 MFA No. 6803 of 2022

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Per contra , learned counsels for respondent Nos.1 and 2 contend that the tribunal has awarded just and reasonable compensation, which does not call for interference. Hence, they seek dismissal of the appeal.

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Having heard learned counsel for appellantclaimant and learned counsel for Insurance Company, perused the impugned judgment and award, the documents produced at Exs.P1 to P24, the Police records clearly depict the filing of FIR against the driver of the offending vehicle and same has not been challenged or controverted. Therefore, the tribunal rightly attributed the negligence against the driver of the offending vehicle. The medical records, clearly depicts the injury sustained by the claimant in the occurrence of accident.

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Now coming to the aspect of age, avocation and income, it is stated that age of the claimant was 28 years as on the date of occurrence of accident. The tribunal taken the income of Rs.11,750/- per month, in view of there being no proof of income. However, the notional

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NC: 2024:KHC:11180 MFA No. 6803 of 2022

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income chart of the Legal Services Authority prescribes the income of Rs.12,500/- for the accident year 2018. Accordingly, income is taken as Rs.12,500/-. The tribunal has rightly applied the multiplier at ‘17', which does not call for interference. PW.2-Doctor has opined the disability to an extent of 30% to the whole body, but in the cross examination, he has admitted the functional disability to the whole body at 6%. However, the tribunal has taken the disability at 6% to the whole body, which does not call for interference and the same is retained. Therefore, the claimant would be entitled to the compensation of Rs.1,53,000/- (Rs.12,500/- x 12 x 17 x 6%) towards loss of future income as against Rs.1,43,820/- awarded by the tribunal.

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Towards medical expenses, Rs.1,32,600/- is awarded by the tribunal on the basis of actual bills produced by the claimant, which also does not call for interference and the same is retained.

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10 - NC: 2024:KHC:11180 MFA No. 6803 of 2022

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The tribunal awarded Rs.20,000/- towards pain and suffering. I deem it appropriate to award an additional amount of Rs.20,000/-. In all, the claimant would be entitled to Rs.40,000/- under this head.

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The tribunal awarded Rs.20,000/- towards loss of

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amenities. I deem 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 awarded Rs.23,500/- towards loss of

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income during laid up period. In view of enhancement of the income by this Court to Rs.12,500/- per month, the claimant would require atleast three months period to recuperate and to get back to his normal day to day activities. Therefore, claimant would be entitled to Rs.37,500/- (Rs.12,500/- x 3) under the head loss of income during laid up period.

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The tribunal awarded Rs.10,000/- towards food and nourishment, Rs.10,000/- towards attendant charges

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NC: 2024:KHC:11180 MFA No. 6803 of 2022

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and Rs.10,000/- towards conveyance, which do not call for

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interference and the same are retained.

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In view of the above, the claimant would be

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entitled to a total compensation of Rs.4,38,100/- as

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against Rs.3,69,920/- as mentioned in the table below:

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Heads	Amount in Rs.
Loss of future income	1,53,000-00
Medical expenses	1,32,600-00
Pain and sufferings	40,000-00
Loss of amenities	45,000-00
Loss of income during laid up period	37,500-00
Food and nourishment	10,000-00
Attendant charges	10,000-00
Conveyance	10,000-00
TOTAL	4,38,100-00

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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 26.11.2021 passed in MVC.No.595/2019 by the Itinerary Senior Civil Judge, JMFC and MACT, Molakalmuru, is modified;

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iii) The claimant is entitled to a total compensation of Rs.4,38,100/- as against Rs.3,69,920/- awarded by the tribunal;

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NC: 2024:KHC:11180 MFA No. 6803 of 2022

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iv) The interest awarded by the tribunal at the rate of 7.5% per annum on the compensation amount of Rs.3,69,920/- 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 in accordance to the share stipulated by the tribunal within a period of four weeks from the date of receipt of a copy of this judgment;

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vi) The ratio of the liability fixed on the respondents is retained;

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vii) The compensation amount shall be released in favour of the appellant-claimant upon proper verification;

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viii) All other terms and conditions stipulated by the tribunal shall stand intact.

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CT: BHK

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Sd/JUDGE

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CPN

Shiva M @ Shivu v. New India Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Shiva M @ Shivu v. New India Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

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