Sri. Muthuraju Vs United India Insurance Company Ltd.

SRI. MUTHURAJU, S/O LATE SEENAPPA @ SRINIVAS, AGED ABOUT 33 YEARS, MALLIGAMMANADODDI, THERUBEEDI POST, MARALAWADI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT - 562 121.

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…APPELLANT

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(BY SRI. GIRIMALLAIAH, ADVOCATE)

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Digitally signed by KAVYA R Location: High Court of Karnataka

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AND:

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UNITED INDIA INSURANCE COMPANY LTD., T.P. HUB, KRUSHI BHAVAN, 6TH FLOOR, HUDSON CIRCLE, NRUPATHUNGA ROAD, BENGALURU - 560 001, BY ITS MANAGER.

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SRI. K.V. YOOGANANDA, S/O VISHAKANTAIAH, MAJOR, (AGE OF R-2 NOT KNOWN TO APPELLANT) KUNAMUDDANAHALLI, BELAGUMBA POST,

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RAMANAGARA TALUK - 562 159, RAMANAGARA DISTRICT.

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MR. REVANNA HEGDE (AGE FATHER NAME OF R-3, NOT KNOWN TO APPELLANT) SANGYA MALAVALLI TALUK, MANDYA DISTRICT - 571 401.

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…RESPONDENTS

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(BY SMT. GEETHA R, ADVOCATE FOR R1; VIDE ORDER DATED 11.07.2023, NOTICE TO R2 AND R3 ARE DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.10.2022 PASSED IN MVC NO. 7703/2018 ON THE FILE OF THE 12TH ADDITIONAL JUDGE AND ACMM, COURT OF SMALL CAUSES, BENGALURU (SCCH-8), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 3052/2023

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BETWEEN:

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SRI. CHANDU. N S/O LATE NAGARAJU, NOW AGED BOUT 31 YEARS, HEGGADAGERE COLONY, URAGAPURA POST, MAGADI TALUK - 562 109, RAMANGARA DISTRICT.

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...APPELLANT

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(BY SRI. GIRIMALLAIAH, ADVOCATE)

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AND:

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UNITED INDIA INSURANCE COMPANY LTD., T.P. HUB, KRUSHI BHAVAN,

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6TH FLOOR, HUDSON CIRCLE, NRUPATHUNGA ROAD, BENGALURU - 560 001, BY ITS MANAGER.

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SRI. K.V. YOGANANDA, S/O VISHAKANTAIAH, MAJOR, (AGE OF R-2 NOT KNOWN TO APPELLANT) KUNAMUDDANAHALLI, BELAGUMBA POST, RAMANAGARA TALUK - 562 159, RAMANAGARA DISTRICT.

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MR. REVANNA HEGDE (AGE FATHER NAME OF R-3, NOT KNOWN TO APPELLANT) SANGYA MALAVALLI TALUK, MANDYA DISTRICT - 571 401.

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...RESPONDENTS

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(BY SMT. GEETHA R, ADVOCATE FOR R1; VIDE ORDER DATED 11.07.2023, NOTICE TO R2 AND R3 ARE DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.10.2022 PASSED IN MVC NO.7704/2018 ON THE FILE OF THE 12TH ADDITIONAL AND ACMM, COURT OF SMALL CAUSES, MACT, BENGALURU, (SCCH-8), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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These two appeals are preferred by the claimants challenging the judgment and award passed by the Motor Accidents Claims Tribunal and XII Additional and A.C.M.M., Court of Small Causes, Bengaluru (for short 'the Tribunal').

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The claimants are before this Court seeking enhancement of compensation aggrieved by inadequate compensation awarded by the Tribunal in MFA No.2988/2023 arising out of M.V.C.No.7703/2018, in which the claimant is a rider of the motor cycle bearing registration No.KA-41-U-4916 and in the connected appeal MFA No.3052/2023 arising out of M.V.C.No.7704/2018, in which the claimant is a pillion rider.

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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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Brief facts of the case are as under:

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That on 16.11.2018 at about 1.30 P.M., the rider and the pillion rider were proceeding on the motor cycle mentioned herein above at Thattekere Village near Banavasi Cross cautiously, at that time, driver of Eicher (Canter) vehicle bearing Registration No. KA-05-AB-4404 came in a rash and negligent manner and dashed against the motorcycle of the claimants. Due to the impact of the accident, the rider and the pillion rider fell down and sustained grievous injuries and they underwent treatment in the hospital. Due to the injuries suffered in the road traffic accident, to claim the expenditures incurred during the course of treatment, they filed respective claim petitions seeking compensation against the owner of the offending vehicle and the Insurance Company.

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These two cases are taken up together.

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In the case of rider of motor cycle, viz,

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Sri Muthuraju, it is stated that he was aged 28 years, working as a coolie and earning Rs.15,000/- per month. However, there is no material placed on record to

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substantiate the same. He has examined the Doctor PW.3 who has opined permanent disability to whole body to an extent of 11%, but the Tribunal not being satisfied with the opinion expressed by the Doctor has reduced the permanent disability to 4%. However, the Tribunal has not awarded any amount towards loss of future earning capacity, for the reason that permanent disability suffered by him does not affect his earning capacity and he has also admitted in the cross-examination that he is presently earning Rs.15,000/- per month working as a coolie.

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It is the vehement contention of learned

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counsel for the claimants that Tribunal has failed to take into consideration, the proper income while awarding compensation. The Tribunal has not awarded any amount of compensation towards loss of future earning capacity due to the disability. Towards pain and suffering the compensation awarded by the Tribunal is on the lower side, so also loss of amenities and the loss of income

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during laid up period. On all these grounds learned counsel seeks enhancement of compensation.

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7. Per Contra , learned counsel Smt. Geetha.R. appearing for respondent No.1-Insurance Company contends that Tribunal has awarded just and reasonable compensation. Though it is stated by the claimant that he was working as a coolie nothing has been placed on record to substantiate the same. Hence, the Tribunal is justified in awarding the compensation, which is reasonable. She also contends that Tribunal has rightly awarded compensation towards loss of income due to permanent disability, for the reason that during the course of crossexamination, the claimant has admitted the fact that he is presently working as a coolie and earning Rs.15,000/- per month. If at all, he had any difficulty in earning the income due to the injuries sustained in the road traffic accident, he could have stated so in the evidence, but he has admitted that he is earning Rs.15,000/- as coolie.

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It is also submitted by learned counsel for the

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Insurance Company that under all other heads since no material is placed on record, the Tribunal is justified in awarding the compensation, which is reasonable. Hence, she seeks to dismiss the appeal preferred by the claimants.

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I have heard learned counsel for the appellants-

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claimants and learned counsel for respondent No.1Insurance Company. The point that arises for

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consideration is:-

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(i) Whether the claimants are entitled for enhancement of compensation?

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(ii) If so, what order?

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The occurrence of accident, involvement of the

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vehicle, injuries sustained by both claimants are not seriously disputed and they are proved and established by production of the documents by both the parties in both cases at Exs.P1 to P19.

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Now, in the case of Muthuraju, coming to the question of age, avocation, income, appropriate multiplier and the compensation to be awarded, the age of rider of the motor cycle is 28 years, which is not disputed. The disability opined by the Doctor at 11% is not believed by the Tribunal and it is reduced to 4% but however, while granting compensation towards loss of income due to permanent disability, the Tribunal is refrained from awarding any compensation on the ground that claimant has admitted that he is continuing to work as coolie and there is no disability.

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Towards pain and suffering, the Tribunal has awarded Rs.20,000/- and this Court is of the opinion that same could be enhanced to Rs.50,000/- .

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Towards Medical expenses nothing is awarded as no documents are produced, same does not call for interference.

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Towards loss of amenities, this Court deems it appropriate to award Rs.50,000/- as against Rs.25,000/-.

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Towards loss of income during laid up period, this Court deems it appropriate to award Rs.37,500/- for three months, at the rate of Rs.12,500/- per month as income (Rs.12,500/- x 3 months).

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Towards food, nourishment and other expenses, Tribunal awarded Rs.5,000/- and same is retained.

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Coming to the aspect of not awarding loss of

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income for permanent disability though the Court has opined 4% disability, I am in agreement with learned counsel for the respondent-Insurance Company that the claimant himself has admitted that he is continuing to work as a coolie. Therefore, the question of awarding loss of income due to permanent disability is not called for. However, considering the fact that there is disability to an extent of 4%, which is opined by the Tribunal itself, as a

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global compensation this Court awards Rs.50,000/- under this head.

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Coming to the case of Chandu.N. petitioner in MFA No.3052/2023, who was a pillion rider in the very same accident in MVC No. 7704/2018. It is seen that he was aged 26 years and he was also working as a coolie. The Doctor has been examined as PW.5Neuropsychologist, who has opined disability to an extent of 42.37% as cognitive disability. However, the Tribunal on the basis of evidence adduced by the claimant and the demeanour of the witness has come to the conclusion that the witness has deposed in the witness box that he was attentive, orientative to time, place and person and is co-operative. On the basis of the evidence adduced by the witness in the witness box, the Tribunal has assessed 10% disability to the whole body. The income taken by the Tribunal is at Rs.12,500/- per month, which does not call for interference, so also the multiplier '17' is adopted. Coming to the aspect of disability with regard to 10%

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assessed at by the Tribunal, I am in partial agreement with the learned counsel for the claimant that this amount of disability being cognitive disability, the Tribunal may not be in a position to assess a cognitive disability merely on the statement of the witness in the witness box. Cognitive disability could mean several aspects, which disable the person from an attentive behaviour or for that matter any other behaviour, which may not be depictive before the Court, with regard to the same claimant has deposed before the Court. The Doctor, who is a Neuropsychologist, on the basis of the records, has opined the disability to an extent of 42.37 mostly as cognitive disability.

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Under the circumstances, though the claimant may have been in a position to answer most of the questions and did not show any disability to the naked eye of the Presiding Officer before the Tribunal, the disability assessed on the basis of clinical assessment by the Doctor who is a Neuropsychologist, cannot be brushed aside.

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Under the circumstances, also considering the fact that the claimant has answered all the questions without any difficulty and having not said that he is not able to perform any of the activities by himself in the evidence, this Court is of the opinion that 15% could be taken as disability to the whole body as against 10% opined by the Tribunal.

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Though learned counsel for the Insurance Company has vehemently contended that disability need not be enhanced for the reason that witness has answered all the questions efficiently and he was attentive in the Court, which is also noted by the Tribunal and it is only the hearing disability, which is expressed by the Doctor PW.5 and also the fact that PW.5 is not the Doctor, who treated the claimant. Therefore, the disability of 10% assessed is also on the higher side and she supports the order passed by the Tribunal.

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However, I am not much inclined with the submission so made by learned counsel for the reasons herein above stated in the above paragraph.

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Therefore, considering the income at Rs.12,500/- per month and taking the multiplier at '17', the loss of income due to permanent disability would be Rs.3,82,500/- (Rs.12,500/-x17x12x15%) as against

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Rs.2,55,000/-.

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The Tribunal has awarded Rs.50,000/- towards pain and suffering same is retained. Medical expenses at Rs.30,607/- is retained. Towards loss of amenities Rs.50,000/- is awarded as against Rs.30,000/-. Towards loss of income during laid-up period the compensation awarded by the Tribunal at Rs.75,000/- is retained. Towards food, nourishment and other expenses. Rs.36,000/- is awarded as the claimant was in-patient for36 days as against Rs.25,000/-.

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25, Coming to the aspect of contributory negligence attributed against the claimants in both these cases, it is seen that it is not the case of either the respondents that FIR and Charge sheet is filed against the rider of the motorcycle, so also no material is placed before the Court to show that the rider of the motorcycle that is the claimants have contributed for occurrence of the accident, no materials are placed before the Court, merely, at the instance of RW.2, the Tribunal has taken 10% contributory negligence as against the claimants, which in my opinion is not correct and the same is without any proper basis and materials on record. Unless there is cogent material to show that the claimants have contributed to the occurrence of the accident, more specifically the rider in one case, the pillion rider cannot be fastened with contributory negligence.

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Be that as it may, in both the cases, be the rider or the pillion rider, no material is placed before the Court to show that they have contributed to the

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occurrence of the accident. Hence, the contributory

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negligence fastened at 10% is set aside.

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In view of the discussions made herein above,

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the claimant in MVC No.7703/2018 in MFA No.2988/2023

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would be entitled to total compensation of Rs.1,92,500/ .

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Sl. No.	Head of compensation	Amount of compensation awarded Rs.
1.	Loss of Future Income	50,000/-
2.	Pain and Sufferings	50,000/-
3.	Medical Expenses	-
4.	Loss of Amenities	50,000/-
5.	Loss during laid-up period	37,500/-
6.	Food and Nourishment Expenses	5,000/-
	TOTAL	1,92,500/-

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The claimant in MVC No.7704/2018 arising out

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of MFA No.3052/2023 is entitled to total compensation of

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Rs.6,24,107/- .

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Sl. No.	Head of compensation	Amount of compensation awarded Rs.
1.	Loss of Future Income	3,82,500/-
2.	Pain and Sufferings	50,000/-
3.	Medical Expenses	30,600/-
4.	Loss of Amenities	50,000/-
5.	Loss during laid-up period	75,000/-
6.	Food, Conveyance, and Nourishment Expenses	36,000/-
	TOTAL	6,24,107/-

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29. Accordingly, I pass the following:-

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ORDER

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(i) These two appeals are allowed-in-part .

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(ii) The claimant in MFA No. 2988/2023 (MVC No.7703/2018) shall be entitled to a total compensation of Rs.1,92,500/- as against Rs.56,250/-.

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(iii) The claimant in MFA No.3052/2023 (MVC No.7704/2018) shall be entitled to total compensation of Rs.6,24,107/- as against Rs.4,65,607/-.

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(iv) The interest awarded by the Tribunal at the rate of 9% per annum on the compensation amount of Rs.56,250/- in MVC No.7703/2018 and Rs.4,65,607/- in MVC No.7704/2018 is left undisturbed. The enhanced compensation amount shall be paid with interest at 6% per annum within a period of four weeks from the date of receipt of copy of this judgment.

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(v) The compensation amount shall be released in favour of the appellants-claimants as per the terms of the Tribunal by electronic transfer to the claimants upon furnishing the required Bank details/upon proper identification.

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(vi) All other terms and conditions stipulated by the Tribunal shall stand intact.

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(vii) Registry is directed to transmit the original records to the jurisdictional Tribunal forthwith.

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(viii) Ordered accordingly

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Sd/(PRADEEP SINGH YERUR) JUDGE

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PSJ List No.: 1 Sl No.: 38 CT: BHK

Sri. Muthuraju v. United India Insurance Company Ltd.

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Sri. Muthuraju v. United India Insurance Company Ltd.

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