Partly allowed

Mr v. Lakshmi Pathi v Mr D Sadayan

Karnataka HC19 Aug 2024MFA/7226/2018

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal involved a challenge to the compensation award in a motor vehicle accident case. The High Court held the Tribunal's assessment inadequate and enhanced compensation by Rs.1,07,740/- to Rs.3,51,140/-, setting interest at 6% p.a. based on a disability of 13%.

What did the court decide?

Enhancement of compensation by Rs.1,07,740/- with interest at 6% p.a. directed to be deposited by the insurer within six weeks.

Mr v Lakshmi Pathi Vs Mr D Sadayan — Contract and Commercial Disputes | Karnataka HC (2024)

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1 - NC: 2024:KHC:33047 MFA No. 7226 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI

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MISCELLANEOUS FIRST APPEAL NO. 7226 / 2018 (MV-I)

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BETWEEN:

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MR V LAKSHMI PATHI S/O V.NAGAPPA, R/AT KOTHAPALLI VILLAGE, KEELAPATLA, GANGAVARAM MANDALAM, CHITTOOR DISTRICT ANDHRA PRADESH-517 408 …APPELLANT

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(BY SRI. HARISH BABU K N.,ADVOCATE)

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AND:

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MR D SADAYAN S/O DHARMAN NO.5-27, KRISHNASWAMY STREET 75, DODDIPALLI CHITTOOR DISTRICT, ANDRA PRADESH-517 001.

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Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka

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THE REGIONAL MANAGER THE ORIENTAL INSURANCE COMPANY LTD., REGIONAL OFFICE NO.44/46, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE-560 025 3. SMT. T. PARVATAHMMA W/O LATE KRISHNAREDDY AGED ABOUT 62 YEARS R/AT KOTHAPALLI VILLAGE GANGAVARAM MANDALAM KEELAPATLA, CHITTOOR DISTRICT ANDHRAPRADESH-517 408 …RESPONDENTS

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(BY SRI.S.V.HEGDE MULKHAND, ADVOCATE FOR R2; V/O/DATED 20.01.2024, NOTICE TO R1-DISPENSED WITH; NOTICE TO R3-SERVED AND UNREPRESENTED)

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NC: 2024:KHC:33047 MFA No. 7226 of 2018

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.01.2018 PASSED IN MVC NO.6929/2016 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ADMISSION , THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging award dated 02.01.2018 passed by Principal MACT, Bengaluru, in MVC No.6929/2016, this appeal is filed.

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Sri K.N.Harish Babu, learned counsel for appellant submitted that appeal was by claimant for enhancement of compensation. It was submitted, on 10.12.2014 at about 9:30 P.M., when claimant was pillion rider on Motorcycle bearing Registration no.AP.03/P.2290, a Lorry bearing Registration no.AP.03/X.0419, driven by its driver in a rash and negligent manner came from opposite direction and dashed against motorcycle. In said accident, claimant sustained fracture of neck of right humerus, tenderness and swelling of right shoulder, abrasion of occipital region and abrasion of right elbow etc., and was treated with open reduction and internal fixation. It was submitted, claimant sustained severe pain and

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3 - NC: 2024:KHC:33047 MFA No. 7226 of 2018

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injury and despite treatment, he sustained permanent physical disability. It was submitted, claimant was a coolie and due to disability sustained, he had lost earning capacity. Though Tribunal had assessed compensation and held insurer liable to pay same, assessment of compensation under various heads of compensation were on lower side. Further, merely on ground that claimant had lost medical bills, Tribunal was not justified in denying compensation towards same. On said grounds, sought for allowing appeal.

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Sri S.V.Hegde Mulkhand, learned counsel for Insurer on other hand, opposed appeal. It was submitted, taking note of fact that claimant had not produced any medical bills, no compensation was awarded. It was submitted, claimant took treatment at Government Hospital and PW.4Doctor examined to substantiate disability sustained had not treated claimant. Therefore, his assessment could not be accepted. It was submitted, though insurer had not preferred appeal, rate of interest at 9% was exorbitant and called for moderation.

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Heard learned counsel on both side and perused

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impugned judgment and award.

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NC: 2024:KHC:33047 MFA No. 7226 of 2018

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From above, since claimant is in appeal for

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enhancement, only point that would arise for consideration is whether claimant is entitled for compensation as sought for. Occurrence of accident involving insured vehicle, claimant sustaining injuries and disability in said accident are not in dispute. Tribunal has assessed compensation by taking disability at 10%. Claimant is seeking for enhancement. In so far as pain and suffering, when claimant sustained one fracture i.e., compound fracture of right humerus, compensation of Rs.40,000/- cannot be stated to be grossly inadequate.

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Claimant took in-patient treatment for 10 days. He also underwent surgery. Tribunal has awarded only Rs.5,000/- towards diet, conveyance, attendant charges etc. which would be inadequate. It would be appropriate to enhance it to Rs.10,000/- . Claimant was 37 years of age and worked as a coolie. Accident occurred in year 2014. Even in case of failure to substantiate income, notional income for said period i.e., Rs.8,500/- had to be considered. Therefore, Tribunal erred in taking it at Rs.8,000/-. Due to fracture sustained, claimant could have been away from avocation for three months.

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NC: 2024:KHC:33047 MFA No. 7226 of 2018

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Consequently, he would be entitled for compensation at Rs.8,500*3 = Rs.25,500/- .

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Though claimant sustained open fracture of right humerus resulting in loss of rotation and grip strength, Tribunal has awarded only Rs.20,000/- towards loss of amenities. Considering age and occupation, it would require to be enhanced to Rs.35,000/-. Tribunal has taken note of implants, but awarded Rs.20,000/- only towards future medical expenses which appears to be on lower side. Taking note of increase in medical expenses, it would be appropriate to enhance it to Rs.30,000/-.

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In so far as disability, PW.4, Doctor, who examined claimant for assessment of disability stated, claimant sustained open compound fracture of right humerus and claimant underwent surgery by open reduction and internal fixation of plate and screw. Further, though fracture was united, implants were in situ. He opined that claimant has sustained total disability to affected limb at 38.8%, after taking note of loss/restriction of range of movement of right shoulder joint, loss of muscle power around right shoulder joint. He also assessed loss of earning capacity at 13% to whole body.

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6 - NC: 2024:KHC:33047 MFA No. 7226 of 2018

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However, Tribunal took it at 10% without assigning any reason.

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Normal rule of 1/3^rd of disability in case of lower limb and 1/4^th in case of upper limb would not be justified when evidence about specific nature of disability caused is available on record. Since normally right hand would be dominant hand, disability assessed by PW-4 i.e. at 13% would appear appropriate. Thus

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future loss of income would be as follows:

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Rs.8,500*13%1214 = Rs.1,85,640/-.

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Thus total compensation can be tabulated as

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follows:

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SL.NO.	PARTICULARS	AMOUNT
1.	Injury, pain and suffering	Rs.40,000/-
2.	Conveyance charges, Attendant and other Miscellaneous expenses	Rs.10,000/-
3.	Loss of income during treatment (Rs.8,500*3)	Rs.25,500/-
4.	Loss of income on account of disability	Rs.1,85,640/-
5.	Loss of amenities in life/future inconvenience	Rs.35,000/-
6.	Future medical expenses	Rs.30,000/-
7.	Medical expenses	Rs.25,000/-
	TOTAL	Rs.3,51,140/-
LESS:	Compensation awarded by Tribunal	Rs.2,43,400/-
ENHA	NCED COMPENSATION	Rs.1,07,740/-

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Thus there would be enhancement of compensation of Rs.1,07,740/-. Point for consideration is answered partly affirmative as above. However, rate of interest on

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7 - NC: 2024:KHC:33047 MFA No. 7226 of 2018

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enhanced compensation would be at 6% p.a., following decision

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of this Court in Shriram General Insurance Company Ltd.,

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v. Smt.Laxmi and others reported in 2018 (4) AKR 808

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and in Ms.Joyeeta Bose & Others v. Venkateshan. V & Others (MFA no.5896/2018 c/w MFA no.4444/2018 & 4659/2018 D.D.24.08.2020). Consequently, following:

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ORDER

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(i) Appeal is allowed in part ;

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(ii) Claimant is entitled for compensation of

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Rs.3,51,140/- as against Rs.2,43,400/- awarded by Tribunal;

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(iii) There is enhancement of compensation of

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Rs.1,07,740/-, which shall carry interest at rate of 6% p.a., from date of claim petition till payment (excluding Rs.30,000/- awarded towards medical expenses); and

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(iv) Insurer is directed to deposit enhanced compensation before Tribunal within six weeks.

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Sd/(RAVI V HOSMANI) JUDGE

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List No.: 1 Sl No.: 13

Mr v. Lakshmi Pathi v Mr D Sadayan

Case brief

What is this about?

What did the court decide?

Mr v. Lakshmi Pathi v Mr D Sadayan

Case brief

What is this about?

What did the court decide?

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