Sri Rajanna Vs the United India Insurance Co.Ltd

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.06.2020 PASSED IN MVC NO.323/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MACT, SIRA, 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 JAYANT BANERJI

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AND

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HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL)

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This appeal is filed by the Insurer challenging the judgment and award dated 12.06.2020 in MVC No.323/2018 passed by the Court of Senior Civil Judge and Additional MACT at Sira (hereinafter referred to as ‘Tribunal).

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2. The brief facts of the case are that, on 01.01.2018 at about 5.00 p.m., the appellant/claimant was proceeding in a bike bearing Reg. No.KA.64.L.9930 and when he reached Baragur-Kadirehalli Road, another bike bearing Reg. No.KA.06.EW.0117 came in a rash and negligent manner, hit the appellant’s bike and caused the

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accident. As a result, the appellant sustained grievous injuries. Immediately he was shifted to a Government Hospital at Sira and thereafter, he was shifted to Siddaganga Hospital at Tumakuru and from there to Sapthagiri Hospital at Bengaluru, wherein he was admitted as an inpatient and taken treatment for a period of five months and the appellant spent Rs.8.00 Lakhs towards his treatment and other incidental charges.

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3. Heard Sri. V.B. Siddaramaiah, learned counsel for the appellant and Sri. S.V. Hegde Mulkhand, learned counsel for the Respondent No.1-United India Insurance Company Limited ( for short, ‘Insurance Company’) and perused the materials available on record.

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4. Learned counsel for the appellant submits that, the appellant/injured is a mason by profession and was earning Rs.15,000/- per month. As a result of accidental injuries, he became permanently physically disabled to carry out his masonary work and agricultural activities,

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and as such, lost his earning capacity. He also submits that, though the monthly income of the appellant/injured was Rs.15,000/-, the Tribunal has committed error in assessing his monthly income at Rs.9,000/-. He further submits that, as on the date of accident, the appellant/injured was aged 41 years, he was a mason by profession and in addition he was also carrying on agricultural activities, and he used to earn more than Rs.15,000/p.m.. But, the Tribunal has erred in considering the age of the appellant as 45 years. Due to the accident in question, the appellant is unable to continue with his avocation of Manson and to carry out any agricultural activities. He further submits that, due to the said accident, the appellant has suffered head injury and other injuries, among which head injury is grievous in nature, and immediately after the accident, he took treatment as an inpatient for 41 days and he was advised for follow-up treatment and bed rest. Therefore, he seeks to re-assess the monthly income of the injured by adding

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25% towards ‘future prospects’ and to enhance the compensation awarded by the Tribunal under various heads. Hence, he seeks to allow the appeal.

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5. Per contra, the learned counsel appearing for the Respondent No.1-Insurance Company, supports the impugned judgment and award passed by the Tribunal and submits that the appellant has failed to substantiate the income by way of producing proper oral and documentary evidence before the Tribunal. Hence, the Tribunal had notionally assessed the income at Rs.9,000/- per month and awarded just compensation. He further submits that the Tribunal without there being any documentary evidence, has awarded Rs.75,000/towards Future Medical Expenses, and as such, the said award amount may be adjusted towards Pain and Suffering and Loss of Amenities, etc.. Therefore, he submits that, the compensation awarded by the Tribunal is just and proper and does not call for any interference by this Court.

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6. Having heard the learned counsel appearing for

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the contesting parties on both sides and on meticulously perusing the materials on record, the point that arises for our consideration is, -

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“Whether the impugned judgment and award calls for any interference by this Court?”

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7. The aforementioned point is answered in the affirmative for the following reasons.

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8. The appellant/injured as well as Respondent No.1/Insurance Company are not in dispute with regard to

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facts that the appellant met with a road accident on 01.01.2018 and the accident occurred due to the actionable negligence of the offending vehicle insured with Respondent No.1-Insurance Company.

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9. In order to substantiate the claim, the appellant/injured has examined PW.1-Rajanna, PW.2-Dr. R.S. Chaithanya and PW.3-Srinivasaiah, and got marked

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the documents as per Exs.P1 to P.28 before the Tribunal.

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However, the Respondent No.1/Insured has not adduced any evidence to substantiate their contentions. The Tribunal after appreciation of the oral and documentary evidence produced by the learned counsel for the appellant/claimant, has awarded a total compensation of Rs.14,84,000/- along with interest at the rate of 7% per annum, by fastening the liability of payment of compensation on Respondent Nos.1 & 2, and directing the Respondent No.2 to deposit the compensation amount within a period of one month from the date of award.

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10. It is to be noticed here that the appellant/injured had made an assertion that, he was a mason by avocation and also doing agricultural activities and he was earning an amount of Rs.15,000/- p.m. But, to substantiate this contention, he neither produced any document nor any acceptable oral evidence in that regard. Therefore, since the accident has taken place in the year 2018, it is just and appropriate to fix the notional income of Rs.12,500/-

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per month by placing reliance on the notional income chart

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of KSLSA¹ for the year 2018.

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11. The evidence on record more particularly the oral

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testimony of PW.2-Doctor and the documents at Ex.P7 to Ex.P9 viz., wound certificate, discharge summary and also other material evidence on record would indicate that the appellant sustained head injury, fractures etc.. Considering the evidence of PW.2-Doctor regarding the injuries suffered by the appellant and its impact on the future prospects of the injured and also considering his avocation, the Tribunal has rightly assessed the disability at 50% to the whole body. It is to be noted here that the appellant had been an inpatient for a period of 41 days and underwent surgery, and even as per the oral testimony of PW.2-Doctor, the appellant is required to undergo further surgery and follow-up treatment. Considering these aspects, we are of the opinion that the compensation awarded by the Tribunal under the head of

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1 Karnataka State Legal Services Authority

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‘Pain and Suffering’, ‘Loss of Amenities’ and ‘Loss of Future Earning Capacity’ due to permanent disability to the whole body, is required to be enhanced appropriately, by adding amount of 25% of his monthly income towards ‘Loss of Future income’ of the appellant/injured. Hence, the appellant/claimant is entitled for 25% additional compensation of his monthly income assessed, under the head of ‘Loss of Future earning’, which would work out to Rs.15,625/- [Rs.12,500x25% = Rs.3,125+12,500=Rs.15,625].

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12. Further, on the basis of the re-assessed monthly income of Rs.15,625/-, by adopting the multiplier of ‘14’ as assessed by the Tribunal, the compensation under the head of ‘Loss of Future Income’, would work-out to Rs.13,12,500/- [Rs.15,625x14x12x50%= Rs.13,12,500/-].

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13. Further, considering the evidence of PW.2Doctor that the appellant/injured has suffered 50% permanent disability to the whole body and since there is no evidence adduced by the Respondent/Insurance

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Company to deny or disbelieve the evidence of PW.2Doctor, we deem it appropriate to enhance the compensation awarded by the Tribunal under the head of ‘Loss of Amenities’ from Rs.25,000/- to Rs.75,000/- and accordingly Rs.75,000/- is awarded under this head and the compensation under the head of ‘pain and suffering’ is also required to be enhanced from Rs.30,000/- to Rs.1,00,000/-

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14. Further, though the learned counsel for the appellant/claimant has relied on the evidence PW.2-Doctor stated that, the appellant is required to undergo another surgery for cosmetic purpose and follow-up treatment in that regard and sought for enhancement of the compensation of Rs.75,000/- to Rs.1,50,000/ -, since he has not produced any document to substantiate the said claim, we are of the opinion that the amount awarded by the Tribunal under the head of ‘Future Medical Expenses’ is just and appropriate and does not call for any interference by this Court.

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15. Further, we are of the opinion that, except the

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above, the compensation awarded by the Tribunal under other heads is just and appropriate, the amount awarded

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by the Tribunal under those heads remain intact.

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16. Hence, the award of compensation is re-assessed

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and the break-up is as under:-

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Sl. No.	Particulars	Amount (Rs.) Awarded by Tribunal	Amount (Rs.) Re-assessed by this Court
1	Pain & suffering	30,000/-	1,00,000/-
2	Medical expenses	4,91,000/-	4,91,000/-
3	Attendant Charges	18,000/-	18,000/-
4	Conveyance	25,000/-	25,000/-
5	Food, Diet, Nourishment	10,000/-	10,000/-
6	Loss of income during laid-up period	54,000/-	54,000/-
7	Loss of future earnings	7,56,000/-	13,12,500/-
8	Loss of amenities	25,000/-	75,000/-
9	Future medical expenses	75,000/-	75,000/-
	TOTAL	14,84,000/-	21,60,500/-
	Enhanced compensation		6,76,500/-

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In the result, this Court proceeds to 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 impugned judgment and award dated 12.06.2020 passed in MVC No.323/2018 by the learned Senior Civil Judge and Additional MACT at Sira, is modified as under:

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(a) The appellant-claimant would be entitled to total compensation of Rs. 21,60,500/- a s against Rs.14,84,000/- awarded by the Tribunal.

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(b) The enhanced compensation amount of Rs.6 ,76,500/- (R s. 21,60,500 – Rs.1 4,84,000) shall carry interest at the rate of 9% per annum from the date of petition till the date of payment.

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(c) The Respondent-Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.

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