Partly allowed

Sri M Shivakumar v. Sri Sudhakar K H

Karnataka HC25 Jan 2024MFA/792/2022

Case brief

AI extract

What is this about?

Claimant injured as motorcycle pillion rider in a rash and negligent car collision sought enhancement of tribunal-awarded motor accident compensation. The High Court raised notional income to Rs.12,500 per month, disability to 15%, and enhanced total compensation from Rs.4,53,000 to Rs.6,27,500 with interest, payable by the insurer.

What did the court decide?

Total compensation enhanced from Rs.4,53,000 to Rs.6,27,500 with interest; insurer to pay within four weeks; no interest on Rs.25,000 future medical expenses.

Sri M Shivakumar Vs Sri Sudhakar K H — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:3587 MFA No. 792 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^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. 792 OF 2022 (MV-I)

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BETWEEN:

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SRI. M.SHIVAKUMAR S/O. MUNIREDDY C, AGED ABOUT 45 YEARS, R/AT VANAKANNAHALLI, ANEKAL TALUK, BENGALURU RURAL DISTRICT - 562 106.

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…APPELLANT

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(BY SRI. JAGADEESH H.T., ADVOCATE)

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AND:

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SRI. SUDHAKAR K.H., S/O. HANUMANTH REDDY, MAJOR, R/AT NO.7, YALLAMMA DEVI TEMPLE, KONAPPA AGRAHARA, BENGALURU - 560 100.

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Digitally signed by V KRISHNA Location: High Court of Karnataka

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THE MANAGER, CHOLAMANDALAM GENERAL INSURANCE CO.LTD., UNIT NO.4, 9^TH FLOOR, LEVEL-6, GOLDEN HEIGHTS COMPLEX, 59^TH C-CROSS, RAJAJINAGAR, BENGALURU - 10.

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…RESPONDENTS

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(BY SRI. B.PRADEEP, ADVOCATE FOR R2; V/O DATED 25.01.2024 NOTICE TO R1 IS D/W)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 08.04.2021 PASSED IN MVC NO. 7004/2018 ON THE FILE OF THE II ADDITIONAL JUDGE AND ACMM, COURT OF SMALL CAUSES, MACT, BENGALURU (SCCH.13), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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2 - NC: 2024:KHC:3587 MFA No. 792 of 2022

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JUDGMENT

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This appeal is preferred by the appellant-claimant challenging the judgment and award dated 08.04.2021 in MVC.No.7004/2018 passed by II Additional Judge and ACMM, Court of Small Causes, Member, MACT, Bengaluru (SCCH-13) (for short ‘the tribunal’). This appeal is founded on the premise of inadequate and meager compensation awarded by the tribunal.

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Parties to the appeal shall be referred to as per

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their status before the tribunal.

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Brief facts of the case are as under:

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The claimant was proceeding on motorcycle bearing No.KA-01-EM-3618 as pillion rider on 09.11.2018. While the rider of the motorcycle was riding the same near Ramasagara in front of Government Hospital, Chandapura-Dommasandra Road, Chandapura, Bengaluru, the driver of the Car bearing No.KA-51-ML-8969, came in a high speed, rashly and negligently dashed against the motorcycle of the claimant. Due to which, the claimant fell down and sustained injuries all over the body. He sustained fracture of left leg both bones distal

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NC: 2024:KHC:3587 MFA No. 792 of 2022

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1/3^rd comminuted fracture and other injuries on other parts of the body. He was operated and implants were inserted. He was inpatient for five days and took follow up treatment.

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It is the case of the claimant that he was working as mason and earning Rs.15,000/- p.m. and due to occurrence of the accident, he is unable to do his work. Thereby, his future earning capacity is reduced and it has effected him mentally and emotionally. Therefore, he has filed the claim petition seeking enhancement of compensation.

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The owner of the offending vehicle i.e., Car, remained exparte and respondent No.2-Insurance Company filed statement of objections, denying the claim made by the claimant including age, avocation, income of the claimant and took up the plea that the Insurer would be liable for violation of breach of terms and conditions of the policy and sought for dismissal of the claim petition.

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

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In order to substantiate the issues and to establish the case, the claimant got examined himself as PW.1,

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NC: 2024:KHC:3587 MFA No. 792 of 2022

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examined Medical Record Keeper of Hospital as PW.2 and the Doctor who assessed the disability as PW.3 and got marked documents as Exs.P1 to P19. The respondent did not lead any evidence.

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On the basis of evidence both oral and documentary, the tribunal granted total compensation of Rs.4,53,000/- along with 8% interest per annum and directed to pay the compensation within 60 days from the date of order.

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It is the vehement contention of the learned counsel for the claimant that the Tribunal has awarded meager compensation without taking into consideration the proper assessment of income of the claimant, so also the disability assessed by the Doctor at 22% to the whole body is reduced to 10%, is erroneous and same requires to be set aside and opinion of the Doctor is to be taken into consideration. Further, he also contended that the tribunal has awarded less and meager compensation under other heads also, which calls for interference and enhancement. On these grounds, learned counsel prays for allowing the appeal and consequently enhance the compensation.

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5 - NC: 2024:KHC:3587 MFA No. 792 of 2022

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Per contra, learned counsel representing the respondent-insurance company vehemently contends that the Tribunal has awarded just and reasonable compensation, which does not call for interference and he seeks dismissal of the appeal.

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I have heard the learned counsel for both the parties i.e., appellant-claimant as well as respondent-insurance company. It is not in dispute that the accident occurred on 09.11.2018, when the claimant was pillion rider of the motorcycle, the driver of the Car bearing No.KA-51-ML-8969, came in a rash and negligent manner and dashed the motorcycle. To establish and prove this aspect, the claimant has produced Exs.P1 to P8, which are police records, which discloses filing of FIR, laying of charge sheet against the driver of the offending vehicle. Exs.P9 to P19 are the medical records for having taken treatment and expended finances. Therefore, negligence is rightly attributed against the owner of the Car for involvement of the accident and for having caused the accident.

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Coming to the question of age, avocation and income of the claimant for awarding compensation, the tribunal

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6 - NC: 2024:KHC:3587 MFA No. 792 of 2022

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has assessed the age of the claimant at 41 years and applied multiplier of ‘14’ which does not call for interference. The tribunal has assessed income at Rs.10,000/- per month. I am of the agreement with learned counsel for the appellant and same requires to be enhanced. The notional income chart of the Legal Services Authority prescribes the income of Rs.12,500/- per month for the accident of the year 2018. Hence, income of the claimant is required to be taken as Rs.12,500/- per month. The tribunal has taken disability at 10%, whereas the Doctor has assessed the disability at 22%. Even if the disability of 44% as assessed by the Doctor-PW.3 is divided into three parts, the disability would come to 14.6%. Hence, disability can be taken on average at 15%. In view of the same, loss of future earning capacity due to disability would be (12,500 X 12 X 14 X 15/100) = Rs.3,15,000/- as against Rs.1,68,000/- awarded by the Tribunal.

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Towards hospital charges and medical expenses, the tribunal has awarded Rs.1,35,000/- on the basis of the medical bills produced, which is not disturbed.

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NC: 2024:KHC:3587 MFA No. 792 of 2022

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Towards, food, nourishment, conveyance and attendant charges, the tribunal has awarded Rs.30,000/-, the same is retained.

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Towards pain and suffering, the tribunal has awarded Rs.45,000/- which is also retained.

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Towards loss of income during laid up period, the tribunal has awarded Rs.30,000/-. This Court has enhanced monthly income of the claimant to Rs.12,500/- per month and the claimant requires atleast three months to get back to his day to day activities, Rs.12,500 x 3 = 37,500/- is enhanced as against Rs.30,000/-.

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Towards loss of amenities and future happiness, the

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tribunal has awarded Rs.20,000/-. This Court deems it appropriate to add an additional Rs.20,000/- under this head.

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Towards future medical expenses, the tribunal has awarded Rs.25,000/-, which does not call for interference.

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In view of the above, the claimant would be entitled to a total compensation of Rs.6,27,500/- as against Rs.4,53,000/- as mentioned in the table below:

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NC: 2024:KHC:3587 MFA No. 792 of 2022

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Heads	Amount in Rs.
Medical expenses and	1,35,000-00
hospitalization charges
Food and nourishment expenses	15,000-00
Conveyance and attendant charges	15,000-00
Pain and sufferings	45,000-00
Loss of future income due to disability	3,15,000-00
Loss of income during laid up period	37,500-00
Loss of amenities and future	40,000-00
happiness
Future medical expenses	25,000-00
TOTAL	6,27,500-00

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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 08.04.2021 passed in MVC.No.7004/2018 by II Additional Judge and ACMM, Court of Small Causes, Member Mact, Bengaluru, is modified;

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iii) The claimant is entitled to a total compensation of Rs.6 ,27,500/- as against Rs.4,53,000/- awarded by the tribunal along with interest from the date of petition till realization and other terms and conditions stipulated by the Tribunal including interest stands intact and it is not disturbed.

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9 - NC: 2024:KHC:3587 MFA No. 792 of 2022

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iv) However, claimant shall not be entitled to the interest towards future medical expenses of Rs.25,000/-.

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

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

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Sd/JUDGE

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SMJ List No.: 1 Sl No.: 9

Sri M Shivakumar v. Sri Sudhakar K H

Case brief

What is this about?

What did the court decide?

Sri M Shivakumar v. Sri Sudhakar K H

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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