Sri Sudhair Kumar Vs Sri Ummar Saheb

SRI SUDHAIR KUMAR S/O NARASIMHA ACHARYA AGED ABOUT 44 YEARS R/AT: HOUSE No.11-107 ”SRI PADMA”, RAMANNA SHETTY ROAD SANTHEKATTE POST, SHIVALLI UDUPI TALUK AND DISTRICT.

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…APPELLANT

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(BY SRI NAGARAJA HEGDE, ADVOCATE)

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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AND:

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SRI UMMAR SAHEB S/O ABDUL KHADER AGED ABOUT 55 YEARS R/O. HOUSE No.6-118, R5 HANUMAN NAGAR PUTTUR, SHIVALLIK VILLAGE UDUPI TALUK AND DISTRICT.

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THE MANAGER IFFCO-TOKIO GENERAL INSURANCE CO. LTD.,

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BRANCH OFFICE 3^RD FLOOR, LAL BAGH TOWER

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HC-KAR

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M G ROAD, MANGALURU REP. BY ITS BRANCH MANAGER.

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…RESPONDENTS

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(BY SRI S V HEGDE MULKHAND, ADVOCATE FOR R2 V/O DTD. 29.4.2026, NOTICE TO R1 IS HELD SUFFICIENT R1-UMMAR SAHEB)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:07.02.2023 PASSED IN MVC No.840/2021 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL M.A.C.T., UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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This appeal is filed by the claimant seeking

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enhancement of the compensation awarded in the judgment and award dated 07.02.2023 passed in MVC No. 840/2021 by the Additional Senior Civil Judge and Additional MACT, Udupi.

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Even though the matter is listed for `Admission' today, it is taken up for hearing with the consent of the learned counsel appearing for the parties.

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HC-KAR

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The appellant - claimant made a claim petition

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for the injuries sustained by him in a road traffic accident which took place on 23.04.2021 contending that the accident occurred due to the rash and negligent driving by the driver of the goods vehicle bearing registration No. KA20-AA-8859. The Tribunal after recording evidence, appreciating the evidence on record, assessed the compensation and awarded compensation under different heads as under:

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Heads of compensation	Rs.
Medical expenses	1,55,210.00
Loss of future earning capacity	3,02,400.00
Pain and suffering	50,000.00
Attendant charges, food and	17,000.00
nourishment, Conveyance charges
Future medical expenses	30,000.00
Total	5,54,610.00

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The Tribunal has also awarded interest at the

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rate of 6% p.a. from the date of petition till the date of realization. Since the driver of the offending vehicle was not holding driving license as on the date of accident the

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HC-KAR

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Tribunal has directed the insurer to pay the award amount

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and recover the same from the owner who is respondent No. 1. Claimant seeking enhancement has filed the present appeal.

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Heard learned counsel for appellant and learned

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counsel for the respondent No. 2.

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Learned counsel for appellant would contend that claimant has sustained 11 injuries as per Ex.P.6 – wound certificate and out of them, 9 are fractures and he was admitted in the hospital for 27 days. P.W.2 – Doctor has stated that the claimant has to undergo surgery for removal of the implants and for that he has to spend Rs.45,000/-. Considering the said aspects compensation awarded by the Tribunal under the head pain and suffering, attendant charges and future medical expenses’ are on lower side. The Tribunal has not awarded compensation for loss of amenities’. He further submits that appellant – claimant, out of medical expenses of Rs.3,58,000/-, got Rs.2,00,000/- from the insurance –

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HC-KAR

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company and the Tribunal erred in deducting the said amount Rs.2,00,000/received from the insurance company from the compensation awarded. He placed reliance on the decision of the Hon’ble Apex Court in the case of Pramod Kumar Tiwari Vs. Premlal Gautam and others arising out of SLP (C)26620/2023 wherein the Apex Court has held that the amount got from the insurance company cannot be deducted from the compensation awarded. With this, he prayed to allow the appeal.

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Learned counsel for respondent No.2 would contend that the compensation awarded by the Tribunal is just and proper and there are no grounds for enhancement. The Tribunal has rightly deducted the amount received by the claimant from the insurance company out of medical expenses. With this, he prayed to dismiss the appeal.

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HC-KAR

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Having heard learned counsel for the parties,

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this Court has perused the impugned judgment, award and trial Court records.

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Ex.P.6 is the wound certificate and appellant - claimant has sustained the following injuries:

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1) Complaints of pain over the left hip, left leg, left arm, left wrist and head region.

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2) Bilateral nasal bleed and oral bleed was present.

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3) Deep abrasion, reddish in colour, measuring 6 x 4 cm was present over the front and the inner aspect of the left knee joint.

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4) Laceration measuring 3 x 2 cm x tissue deep was present over the glabella and root of nose.

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5) Laceration measuring 2 x 1 cm x tissue deep was present over the left eye upper lid.

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6) Abrasion, reddish in colour, measuring 4 x 2 cm on nasal bridge.

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7) Laceration measuring 3 x 1 cm x tissue deep was present over the left lower lip.

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8) Multiple abrasions, reddish in colour, over an area of 10 x 10 cm was present over the entire face, starting from glabella to chin region varying in sizes from 1 cm to 2 cm.

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9) Left racoon eyes present.

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HC-KAR

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10) Laceration, measuring 3x1 cm x tissue deep was present over the back of the left forearm & wrist joint. 11) Deformity over left forearm.

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Out of the said 11 injuries 9 are fracture injuries. Considering the said injuries the compensation awarded by the Tribunal towards `pain and suffering’ requires to be enhanced from Rs.50,000/to Rs.2,25,000/-.

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Claimant was admitted in the hospital for 11 days and therefore he is entitled to `attendant and conveyance charges’ in a sum of Rs.27,000/- (27 X 1000) as against Rs.17,000/- awarded by the Tribunal.

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The Doctor who has treated the claimant and assessed the disability has stated that for removal of implants appellant - claimant has to undergo surgery and for that he is required to spend a sum of Rs.45,000/-. Considering the said aspect compensation awarded by the Tribunal for `future medical expenses’ in a sum of Rs.30,000/- requires to be enhanced to Rs.45,000/-.

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HC-KAR

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The Tribunal has not awarded any amount under the head loss of amenities’. Considering 11 injuries sustained by the claimant, he is entitled to loss of amenities’ in a sum of Rs.1,00,000/-.

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Ex.P.8 is the bill which indicate that the claimant has spent Rs.3,58,000/- towards his medical expenses for treatment to the injuries sustained. Out of that amount he had received Rs.2,00,000/- from the insurance company and he had paid the balance amount. The Hon’ble Apex Court in the case of Pramod Kumar Tiwari (supra) has observed as under:

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“5) The issue whether deduction of pension amount from the salary can be made has been settled by the judgment of this Court in the case of 'Helen C. Rebello (Mrs.) and Others Vs. Maharashtra State Road Transport Corporation and Another, (1999) 1 SCC 90′, wherein, this Court drawing an analogy in para 35 observed as under-

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"35. Broadly, we may examine the receipt of the provident fund which is payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs

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are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No corelation between the two. Similarly, life insurance policy received either by the insured or the heirs of the insured on account of the contract with the insurer, for which the insured contributes in the form of premium. It is receivable even by the insured if he lives till maturity after paying all the premiums. In the case of death, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant of any not on account accidental death but otherwise on the insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary

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advantage receivable by the heirs on account of one's death but all these have no corelation with the amount receivable under statute occasioned only on a account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. When we seek the principle of loss and gain, it has to be on a similar and same plane having nexus, inter se, between them and not to which there is no semblance of any corelation. The insured (deceased) contributes his own money for which he receives the amount which has Act is no on corelation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act he receives without any contribution. As we have said, the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual."

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HC-KAR

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(emphasis supplied)

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6) Later, in a recent judgment in the case of 'Sebastiani Lakra and others Vs. National Insurance Company Limited and Another, (2019) 17 SCC 465' , this Court observed that deductions cannot not be allowed from amount of compensation either on or account of insurance or pensionary benefits gratuity or grant of employment to kith and kin of the deceased. The Court in para 12 noted as thus -

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" 12. The law is well settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased account of his death in a motor vehicle accident. The claimants/dependents are entitled to "just compensation" under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle the accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his

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dependents as a result of some contract or act which the deceased performed in his lifetime cannot be said to be the outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death.”

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In view of the above, deduction of amount received by the claimant from the insurance company towards his medical expenses in a sum of Rs.2,00,000/cannot be sustained. Therefore, claimant is entitled to the entire amount of medical bills as per Ex.P.8 in a sum of Rs.3,58,000/-.

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The Tribunal, considering the disability and income of the claimant, has rightly awarded compensation under the head `loss of future earning’ in a sum of Rs.3,02,400/-.

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In view of the above the claimant is entitled to total compensation under different heads as under:

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Heads of compensation	Rs.
Medical expenses	3,58,000.00

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HC-KAR

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Loss of future earning capacity	3,02,400.00
Pain and suffering	2,25,000.00
Attendant charges, food and	27,000.00
nourishment, Conveyance charges
Future medical expenses	45,000.00
Loss of amenities	1,00,000.00
Total	10,57,400.00

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Accordingly, claimant is entitled to enhanced compensation of Rs.5,02,790/- (1057400-554610) with interest at the rate of 6% p.a. from the date of petition till the date of realization.

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The Tribunal has rightly held that the insurer has to pay award amount to the claimant and recover the same from the owner of the vehicle i.e., respondent No. 1 as driver of the vehicle was not holding driving license at

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the time of accident.

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In view of the above, the following;

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O R D E R

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i) Appeal is allowed in part.

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HC-KAR

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ii) Appellant - claimant is entitled to enhanced

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compensation of Rs.5,02,790/- with interest at the rate of 6% p.a. from the date of petition till the date of realization.

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iii) Respondent No. 2 – insurer shall deposit the enhanced compensation before the Tribunal within six weeks from this day.

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iv) Respondent No. 2 – insurer is at liberty to recover the said enhanced compensation within interest from the owner of the vehicle i.e., respondent No.1.

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v) Appellant - claimant is entitled to release of entire enhanced compensation.

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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LRS

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List No.: 1 Sl No.: 56

Sri Sudhair Kumar v. Sri Ummar Saheb

Case brief

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Sri Sudhair Kumar v. Sri Ummar Saheb

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