The High Court
Case Details
- 1 - NC: 2025:KHC:3151 MFA No. 5201 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO. 5201 OF 2021 (MV-I) BETWEEN: SMT. M.S. BHAGYAMMA, W/O LATE CHANDRA SHEKAR, AGED ABOUT 60 YEARS, R/AT NO.8, 6TH A MAIN ROAD, GAYTHRI LAYOUT, SRIRAMAPURAM BENGALURU RURAL - 560 021. (BY SRI. NAIK KRISHNA VENKATRAMAN, ADVOCATE) …APPELLANT Digitally signed by KAVYA R Location: High Court of Karnataka AND: 1. SOMASHEKAR G, S/O GIRI G.V., MAJOR, NO. 364/3, 13TH A CROSS, NEAR AYYAPPA SWAMY TEMPLE, DOBIGHAT, MALLESWARAM, BENGALURU - 560 003. 2. THE MANAGER, UNITED INDIA INSURANCE CO. LTD., PEENYA MICRO OFFICE, JALAHALLI CROSS, PEENYA, NO.1 AND 8 KAVERI COMPLEX, S.M. ROAD, (AYYAPPA TEMPLE ROAD) ABOVE KRISHNA TELECOM, BENGALURU - 560 057. POLICY NO.0723813118P100672807 VALID FROM 12/04/2018 TO 11/04/2019. - 2 - NC: 2025:KHC:3151 MFA No. 5201 of 2021 …RESPONDENTS
Legal Reasoning
(BY SRI. MALLIKARJUNA REDDY N.A, ADVOCATE FOR SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR R2; VIDE ORDER DATED 14.12.2024, NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.02.2021 PASSED IN MVC NO. 2541/2019 ON THE FILE OF THE XXIII ADDITIONAL SMALL CAUSES JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL CAUSES, BENGALURU (SCCH-25), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR ORAL JUDGMENT This Appeal is preferred by the claimant challenging the judgment and award dated 26.02.2021 passed by the XXIII Additional Small Causes Judge, Bengaluru (for short 'the Tribunal') in MVC No.2541/2019 on the ground of inadequate compensation awarded by the Tribunal. 2. It is a case of the appellant/claimant that on 06.02.2019 at 10:00 a.m., near Kunigal bypass road, U - 3 - NC: 2025:KHC:3151 MFA No. 5201 of 2021 turn near Bidanagere Village while she was returning from the temple as a pillion rider, one motorcycle bearing registration No.KA-02-W-8282 came in a rash and negligent manner and dashed against the motorcycle in which the claimant was a pillion rider and due to the impact of the accident the rider as well as the pillion rider fell down and the claimant suffered grievous injuries. Hence, the claimant filed claim petition seeking compensation against the respondents. 3. Upon service of notice, respondent No.2 filed the statement of objections whereas, respondent No.1 did not participate in the proceedings. 4. On the basis of materials placed on record both oral and documentary, the tribunal has awarded total compensation of Rs.9,21,800/- along with interest at 9% per annum and fastened the liability against the respondent Nos.1 and 2 jointly and severally directed respondent No.2-Insurance Company to pay the compensation within 60 days. - 4 - NC: 2025:KHC:3151 MFA No. 5201 of 2021 5. Being aggrieved by the inadequate compensation, the claimant is before this Court seeking enhancement. On the ground that the tribunal has committed a serious error in not taking into consideration the material evidence both oral and documentary so also the evidence adduced by the Doctors PW 2 and PW 4, who opined disability to an extent of 26.6% Cognitive disability due to the Neuro psychological disability and 13% physical disability to the whole body as expressed by the orthopedician. It is also contended that the tribunal has committed an error in taking whole body disability to an extent of only 15% ignoring the evidence of PW 2 and PW 4. 6. Learned counsel further contends that the tribunal has committed an error in taking the income at Rs.10,000/- per month whereas, the notional income fixed by the Karnataka State Legal Services Authorities is Rs.14,000/- per month. Learned counsel also contends that under other heads namely pain and suffering, loss of income during laid up period, towards amenities and - 5 - NC: 2025:KHC:3151 MFA No. 5201 of 2021 towards future medical expenses, the compensation awarded is on the extreme lower side which also requires enhancement. On these grounds, learned counsel for the appellant seeks enhancement of compensation. 7. Per Contra, learned counsel representing the Insurance Company vehemently contends that the tribunal has awarded just and reasonable compensation which does not call for interference. All aspects of the evidence including that of the Doctors have been considered while awarding suitable compensation and that the interest component awarded is on the higher side. Therefore, he sustains the judgement and award of the Tribunal and seeks dismissal of the appeal. 8. I have heard the learned counsel for the appellant /claimant and the respondent/Insurance Company. 9. The point that arises for consideration is Whether the claimant is entitled for enhancement of compensation. If So, what amount?. - 6 - NC: 2025:KHC:3151 MFA No. 5201 of 2021 10. The occurrence of accident, involvement of vehicle and injuries sustained in a road traffic accident are all established and proved by production of Exs.P1 to P.27. No Contra evidence is adduced, materials produced by the respondents. Negligence is rightly attributed against the rider of the offending vehicle. 11. Now coming to the question of age, avocation, income, disability, the multiplier and future prospects, it is seen that the claimant was aged 58 years as on date of occurrence of accident. The appropriate multiplier is taken at '9' which does not call for interference and same is retained. The income taken by the tribunal is Rs.10,000/- per month which is on the lower side. The same is enhanced to Rs.14,000/-per month as per the Karnataka State Legal Services Authority chart. Claimant has adduced evidence of Doctors PW 2 and PW 4, who are Neuro MLC consultant and orthopaedic surgeon respectively. The opinion is expressed by PW 2 on the basis of the Neuro physical assessment and Neuro psychological profile suggesting Cognitive disability of mild - 7 - NC: 2025:KHC:3151 MFA No. 5201 of 2021 global disability to the whole body at 26.6% on the basis of Neuropsychological report on the basis of MRI scans films and CT scans. PW-4, the Orthopedic surgeon has opined disability to an extent of 39% to the right lower limb and whole body disability at 13%. 12. Whereas, the tribunal has taken the disability at 15% to the whole body. It is appalling to see the disability of whole body taken by the tribunal at 15% is without any proper appreciation and not even applying common sense in arriving at a disability when 2 experts have already adduced evidence i.e., the Neuropsychologist MLC consultant and the Orthopedic consultant/surgeon. The tribunal cannot ignore the opinion expressed by the experts in the field of medicine unless contrary material is placed by the rival party namely, the Insurance Company. When there is Cognitive disability expressed by PW-2, the Neuro psychologist suggesting Cognitive disability at 26.6%, the same has to be taken on the face value unless Contra material is suggested for reducing the said percentage. - 8 - NC: 2025:KHC:3151 MFA No. 5201 of 2021 13. In the present case on hand, there is both Neuropsychological cognitive disability as well as physical disability which renders the petitioner incapable of working or doing any job, there by the functional disability has to be calculated keeping in mind both these disabilities. Therefore, I'm in agreement with learned counsel for the claimant that disability assessed by the tribunal is on the lower side. The same requires to be taken at 26% to the whole body including cognitive disability and physical disability. 14. This Court would have to award future prospects. In view of the age of the claimant at 58 years future prospects at 10% is added in addition. Therefore, the loss of future earning capacity due to disability would be Rs.14,000/- + 10% future prospects should be Rs.15,400/- x 12 x 9 x 26% would be Rs.4,32,432/- as against Rs.1,62,000/- awarded by the tribunal. 15. Towards pain and sufferings Tribunal has awarded Rs.30,000/-. Same is enhanced to Rs.50,000/-. - 9 - NC: 2025:KHC:3151 MFA No. 5201 of 2021 Medical expenses of Rs.6,44,795/- is retained, loss of income during laid up period at Rs.14,000 x 4 months, Rs.56,000/- is awarded. Towards loss of future amenities, happiness Rs.50,000/- is awarded as against Rs.20,000/-, towards attendance, conveyance, food and nourishment, as the claimant was inpatient for 24 days Rs.25,000/- is awarded as against Rs.20,000/-. 16. Towards future medical expenses Rs.35,000/- is awarded as against Rs.25,000/-. 17. In view of the above discussion, the appellant/claimant is entitled to total compensation of Rs.12,93,227/- along with interest at 9% per annum. i) ii) Accordingly, I pass the following:-
Decision
ORDER The appeal is allowed-in-part; The judgment and award dated 26.02.2021 passed by the XXIII Additional Small Causes Judge, Bengaluru in MVC.No.2541/2019 is modified; - 10 - NC: 2025:KHC:3151 MFA No. 5201 of 2021 iii) The appellant/claimant would be entitled to a sum of Rs.12,93,227/- as against Rs.9,21,795/- alongwith interest @ 9% p.a. from the date of petition till realization, excluding future medical expenses. iv) The enhanced compensation shall carry interest at 6% per annum. v) Balance compensation shall be paid within a period of four weeks from the date of receipt of copy of this order. vi) All other terms and conditions stipulated by the tribunal shall stand intact with regard to deposit; Ordered accordingly. Sd/- (PRADEEP SINGH YERUR) JUDGE VS List No.: 1 Sl No.: 6 CT: BHK