The Manager Cholamandalam M S Gen Ins Co. Ltd. Vs Rohan Sagar J N @ Sagar

ROHAN SAGAR J.N @ SAGAR, S/O NAGARAJASHETTY ALIAS NAGARAJU, AGED ABOUT 24 YEARS R/O JANIVARA VILALGE, KASABA HOBLI, CHANNARAYAPATNA TALUK HASSAN DISTRICT - 571 231.

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V R KUMARA S/O RANGASWAMY V.J., AGED ABOUT 42 YEARS R/O VAGARAHALLI VILLAGE

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2 - NC: 2025:KHC:42152 MFA No. 748 of 2023 C/W MFA No. 4167 of 2023

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HC-KAR

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DANDIGANAHALLI HOBLI CHANNARAYAPATNA TALUK, HASSAN DISTRICT - 571 231.

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…RESPONDENTS

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(BY SRI. RAJU S.,ADVOCATE FOR R1, R2-SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.09.2022 PASSED IN MVC NO. 344/2021 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN (SIT AT CHANNARAYAPATNA), AWARDING COMPENSATION OF RS.17,00,000/WITH INTEREST AT 6 PERCENT P.A. ON SUM OF RS. 16,00,000/FROM DATE OF PETITION TILL REALIZATION. IT IS MADE CLEAR THE CLAIMANT IS NOT ENTITLED ANY INTEREST ON FUTURE MEDICAL EXPENSES OF RS.1,00,000/-.

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IN MFA NO. 4167/2023

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BETWEEN:

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SRI ROHAN SAGAR J N @ SAGAR S/O NAGARAJASHETTY @ NAGARAJU AGED ABOUT 25 YEARS R/O JANIVARA VILLAGE KASABA HOBLI CHANNARAYAPATNA TLAUK HASSAN DISTRICT.

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...APPELLANT

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(BY SRI. RAJU S.,ADVOCATE)

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AND:

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SRI. V.R. KUMARA S/O RANGASWAMY V.J. AGED ABOUT 43 YEARS R/O VAGARAHALLI VILLAGE DANDIGANAHALLI HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT 573 201.

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NC: 2025:KHC:42152 MFA No. 748 of 2023 C/W MFA No. 4167 of 2023

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HC-KAR

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2. THE MANAGER

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CHOLAMANDALAM M S GENERA INSURANCE CO., LTD., GOLDEN HEIGHTS COMPLEX 59^TH CROSS ROAD INDUSTRIAL SUB-URB RAJAJINAGAR 4^TH BLOCK BENGALRU - 560 010.

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...RESPONDENTS

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(BY SRI.VIJAYA PHANEENDRA T.B FOR SRI.A.N.KRISHNA SWAMY, ADVOCATE FOR R2, R1-SERVED)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.21.09.2022 PASSED IN MVC NO.344/2021 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN, (SIT AT CHANNARAYAPATNA), 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:

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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The above appeals arises out of judgment and award dated 21.09.2022 passed by the IV Additional Distsrict and Sessions Judge, Hassan sitting at Channarayapatna, Hassan (for short 'Tribunal) in MVC.No.344/2021.

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HC-KAR

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The claimant has filed MFA.No.4167/2023 seeking enhancement of compensation and MFA.No.748/2023 is filed by the insurer challenging the quantum of compensation awarded by the Tribunal.

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Though the matters are listed for admission, with

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the consent of both the parties, the matters are taken up for final disposal.

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The brief facts of the case of both the parties before the Tribunal were that :

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On 19.04.2020, at about 9.30 a.m, the petitioner was traveling on the motor cycle bearing registration No.KA-13EK-5425 from Udayapura to Yaliyur. When he reached near Mango plantation, a Bolero Pickup Goods Vehicle bearing registration No.KA-13-C-8309, which was driven by its driver came in rash and negligent manner and dashed against the motorbike of the petitioner. Due to the injuries sustained in the accident, he has suffered permanent disability resulting in loss of his earning capacity. With these reasons, the claimant has prayed for awarding of compensation.

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HC-KAR

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The respondent No.1 is the owner and respondent

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No.2 is the insurer of the offending motorcycle. Respondent Nos.1 and 2 appeared through their counsel and filed their respective written statements denying the averments in the claim petition and denied their liability to pay the compensation. With these reasons, prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues.

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The claimant to prove his case, examined himself

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as PW-1 and marked 17 documents, as per Exs.P-1 to P-17. The claimant also examined the doctor, who treated him through Court Commissioner as CW-1 and through CW-1, Ex-C.1 to 4 were marked. The respondent No.2 examined its Senior Manager as RW-1 and marked Ex.R1.

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Learned counsel for the claimant contends that

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the Tribunal has not awarded a just and fair amount of compensation. He further submits that, as per the evidence

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HC-KAR

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of PW-2, an amount of Rs.2,00,000/- is required towards future medical expenses, whereas the Tribunal has awarded only Rs.1,00,000/-. He also contends that the Tribunal has granted compensation for the laid-up period for only three months. Considering the complications and injuries suffered by the claimant, the loss of income during the laid-up period should have been considered for a period of nine months to one year. He further submits that the claimant underwent inpatient treatment for 23 days in a private hospital and continued follow-up treatment thereafter. However, the Tribunal has awarded only a meager sum of Rs.50,000/towards attendant charges and miscellaneous expenses. Despite the gravity of the injuries, the Tribunal has not awarded any compensation under the head of 'loss of amenities' . Therefore, prayed to enhance the said amount of compensation.

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Learned counsel for the insurer contends that the

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Tribunal has awarded an excessive amount of compensation. He further submits that the claimant has not proved that his income was Rs. 20,000/- per month. Moreover, during the

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HC-KAR

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year 2020, due to the COVID-19 pandemic, most shops were closed, and therefore, the question of loss of income to the claimant during the laid-up period does not arise. Many employers had closed their establishments and not retained their employees. Under such circumstances, the claimant’s contention that he was earning Rs.20,000/- per month is not justified. The Tribunal awarded an amount of Rs.1,00,000/without adequate reasons. Therefore, prayed to recalculate the amount of compensation.

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The fact of accident, injuries sustained by the claimants in the said accident are not in dispute. Therefore, there is no need to reconsider the same.

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10(a) The Tribunal in the impugned judgment has discussed in detail the nature of injuries and treatment taken by the claimant as an inpatient for about 23 plus 3 days. Considering the disability sustained by the claimant, as per evidence of PW-2, there are no valid reasons to interfere with the said findings.

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HC-KAR

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The main grievance of the insurer is that, the claimant had failed to prove his income as Rs.20,000/- per month and was unable to prove that he was working as a cashier in a bar. Ex-P10 was not proved before the Tribunal. Still, the Tribunal has considered income of the claimant as Rs.20,000/-.

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In paragraph No. 30 of the impugned judgment, the Tribunal discussed this matter at length and relied on the supporting documents provided by the Excise Department of the Government of Karnataka, holding that the claimant was employed as a cashier at Bhavya Bar and Restaurant. This is also evident from the cross-examination of PW-1. However, nothing was brought on record to show that he was retrenched from service during the COVID-19 pandemic. Therefore, there was no material before the Tribunal to indicate that the claimant was not working as a cashier in the bar and restaurant. Considering these facts, the Tribunal determined the claimant’s income to be Rs.20,000/- per month. Learned counsel for the appellant-insurer contends that Ex-P10 does not mention any deductions for PF or other

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HC-KAR

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contributions, such as the employee’s contribution towards ESI. There is also no material on record to show that the establishment was registered under the EPF Act or under the Labour Act. In the absence of such material, it is difficult to accept that the employer was liable to pay the employee’s provident fund, etc. According to the Tribunal’s discussion, there were only four employees working in the said establishment. It appears that the provisions of the EPF Act may not be applicable to the said establishment; therefore, on this ground, Ex-P10 cannot be rejected.

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Claimant sustained injuries which are mentioned

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in paragraph No.23 of the impugned judgment. He had sustained the following fractures:

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i. Severe crush injury right knee with fracture patella.

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ii. Severe crush injury right lower leg with fracture patella.

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iii. Severe crush injury right upper leg fracture tibia.

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iv. Fracture lower femur right with bone loss with soft tissue loss.

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v. Severe commuted fracture distal radius right.

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vi. Fracture clavicle lateral 1/3^rd right.

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vii. Chest injury

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viii. Spine injury.

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HC-KAR

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Considering the injuries mentioned in paragraph Nos. 23, the Tribunal has awarded adequate compensation under the head 'Pain and suffering'. The same doesn't appear to be exorbitant or disproportionate.

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The claimant sustained multiple fractures, as detailed in paragraph No.23 of the impugned judgment. Considering the severity of his injuries, he was unable to attend to his work for at least six months. Hence, it requires enhancement.

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Less amount of compensation has been awarded under the head of 'loss of amenities.' Due to the injuries sustained in the incident, the claimant must have suffered the loss of certain amenities which are otherwise enjoyed by a healthy person. Reconsidering the same, the claimant is entitled to the following amount of compensation:

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Sl.No.	Particulars	Amount in Rs.
1.	Pain and Suffering	1,50,000
2.	Medical expenses	3,44,613
3.	Future medical expenses	1,00,000
4.	Loss of future earnings due to disability	9,93,600

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HC-KAR

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5.	Loss of earnings during laid up period (Rs.20,000 x 6)	1,20,000
6.	Food, nourishment and other miscellaneous expenses	50,000
7.	Loss of amenities	50,000
	TOTAL	18,08,213
	Rounded off to	18,10,000
A	mount awarded by the Tribunal	17,00,000
	Enhancement	1,10,000

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Accordingly, the claimant is entitled for enhancement of ₹1,10,000/- on and above the amount of compensation awarded by the Tribunal.

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16. Undisputedly, the respondents are liable to pay

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the same. The claimant is also entitled to the interest on the

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said amount from the date of petition till its realisation.

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In the result, I proceed to pass the following:

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ORDER

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i) MFA No.748/2023 is dismissed.

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ii) MFA No.4167/2023 is allowed in part.

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iii) The impugned judgment and award dated 21.09.2022 in MVC No.344/2021 on the file of IV

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NC: 2025:KHC:42152 MFA No. 748 of 2023 C/W MFA No. 4167 of 2023

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HC-KAR

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Additional District Court and MACT, Hassan, sitting at Channarayapatna is modified;

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iv) The claimant is entitled to enhancement of Rs.1,10,000/- with the interest at @ the rate of 6% per annum from the date of petition till its realisation excluding the period of delay of 166 days in filing the appeal.

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