Shri S Nagarajachari vs M/S National Insurance Company Ltd on 16 August, 2010

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Karnataka High Court

Shri S Nagarajachari vs M/S National Insurance Company Ltd on 16 August, 2010

Bench: Jawad Rahim

1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 16"' DAY OF AUGUST 2010 

BEFORE

THE HOE\%'BLE MRJUSTICE IAWAD RANIM  

M.F.A. NO. 14008/2vOO'7'-(.MV'T}'M   E

BETWEEN:

AND:

SHRI SNAGARAJACHARI ._ 
S/O LATE SL+ANI<ARRAcHA'RI,T»
AGED ABOUT 25 YEARS,   '  ~  
C/O SRINIVASA, M',A~N,_CH_ANAH---ALI._'I'"ROAD,
NEXT TO NAGALINGES--HV'.1_ARA   I
TEMPLE, 3"' LEFT, ATTI_BEL'E;

ANEKAL TALUK,  "  .  .
BANGALQ*REgR.U RAL D_ISTR'ICfI"  L. 

 --------     APPELLANT
(By SR_I RM.R_AEVEEi'SH'wit§UMAR, ADV.,)

 M/S NA.TI'OI§:AL"IN"SuRANGE

 _C_OE'{IPANY'LT.D,.ID.O.2, N064,
"SjATH~I,_ COMPLEX, MISSION
-ROA'D. '/ L_AL--BAGH ROAD,

 vvB}'»..[§J'GAL.ORE A 560 027

 M.~SLi'.RESH BABU,

,. S,/,O'P.MuNIREDDY,
ISETTIPALLI VILLAGE,
ATTIBELE, ANEKAL TALUK,
BANGALORE RURAL DISTRICT.
 RESPONDENTS

(BY SRI LEXPLEXUR, ADv.,) rm ./x V. 'J 2 THIS MFA FILED U/S 173(1) OF EVEV ACT AGAINST THE JUDGMENT AND AWARD DATED 23-07-2007 PASSED IN MVC NO.784/2006 ON THE FILE OE THE XVI ADDL.W3U_D'C.E, COURT OF SMALL CAUSES, MEMBER, "E'-'l4A--CT., METROPOLNYAN AREA, BANGALORE, (SCCH"*NQJﬁQy PARTLY ALLOWHNG THE CLAIM pETm:oN,f=EoR:'a COMPENSATHDN AND SEEKENG ENHANCEMENT. OE .' COMPENSATION.

This appeal coming on for court delivered the following .

JUDGAEQJ Claimant is in and award dated 23;L2oo7_niiwyc§?aéjoa ah tag fHe of MACT, Ba nga lore Cityg: si=.j_el¥tini;j enhavn-cement.

2. The'l'appV.e'al i.s:31fpost*eVd'*--.f'or' a'dm'i"ssion after notice to the respondents liepresented. The appeal is admitted and-._i:Aal<en -ii p'.foi=.final disposal. Examinedvthe records.

v_App'ellant--.sought compensation towards pecuniary and »n'on--pe.cis;;_n.i:'ary loss on the premise that on 29.1.2006 'pat 3.3OS"p.m. while he was riding motorcycle bearing A XNov.TON--./O4/Y--0344 from Belongandapalli to Miiggondapaili, 'V"-____""."ari'other vehicle (milk van) bearing No.l<A--O5-C~98r~'i7 «W 3 proceeding in the opposite direction on the same road was driven in a rash and negligent manner, and the driv'e..rvib,yVh1is negligent act, lost control consequent to ?

collided with his motorcycle. As a result of"t'iivei:i*mp*act,V net fell suffering injuries and his lower, limb was.'cn_isrieéi[;-..__ its was admitted to Sanjay Gandhi ll-iospital:""wAhere radiological examination, both Tieg were found to be fractured,' to surgery with several metallic im_plants_.... the bones did not unite physical disability Of 560/0.

5. Aap;)e'll4ant tailor by profession earning Rs.5,OOO/--VVV'p'-.,r,n.ii but dtiveto' the injuries in the accident, he

-"'~._lost,_"h3"i:.s :avo,cation'.«...____i:l.«e has since' been terminated from 'V-..,s'ar.v'ice,.".._a'i~i'e.dsought reimbursement of amount spent tow.ar'd's con'i2f'eyance, medical expenses, etc. The claim Twas resisted' by the respondents placing actionable wrong V' tahegclaimant, but the Tribunal has negated such defence held the accident was the result of negligent driving of vehicle owned by the respondent. That finding has not are 4 been questioned. Claimant seeks= enhancement.

6. Learned counsel for the claimant draws my attent.iyd*n' to two heads on which he says cornpensatiojn' inciuded. Firstly, it is urged that tVhe"'injuries"ha\re' ixé?t.'_thsi/.. uh' petitioner physicaliy disabled and grantiiforllyioss. of Rs.2'3,000/-- is too low. Seco*nyd'i~y, he'V'questwions't_:h'e'award * it towards loss of future ea.rning.,~-In"y_th'i's-reoard,-reference is made to medical evidence"_by"'P\lli2v~i$:rV;lShiyakumar to show that claimant to the iower limb which ::h:isVV_oroVl'ession as a taiior. He subrr:'its' vhasjlylfbted body disability at 19% and hasxjeduced: 'tr7iieijnic§irrny:¢from Rs.5,000/- to Rs.4,000/---. In_lAV'rie%gatio'i*'i«ofthese contentions, learned counsel for tifi.e"1?'tyA has opposed any enhancement.

8. has to be considered at this juncture is, VVy»"whethei'..--there is any enhancement required and whether ._"th'e--dicontentions of the insurance company against

-enhancement could be accepted. The insured had remained §;,i,'2,..i 3 exparte before the triai court. Since the insurance company has obtained permission under Section 170, Motor \v/Ve;-rhiiicriges Act before the trial court, it is permitted to cor.-teVst'_':'tli:i_e' ciaim.

9. I have examined the records if}.,.f5'L[.prj.ieffi.€'FifatiOfiXIQT what is urged by both sides.,*Lain«satisfiedrgitiieigawardfifofwtﬁ Rs.4S,0O0/- towards pain and'V"f'sti_V'fferingis. and it is affirmed. The i7ts.V3r'V.0,000/~ towards medical reimbur5ei}henft'__Vw:hichivyhisiibvaised on medical biiis and '~:_"'«..i§.iimiiariY» award of Rs.18,000 ' and conveyance and Rs.S,00_:ffdf--v during the time ciaimantiiwas days is quite reasonabie and the sai'neAis aft'i~rrTied'.

.,g'i'?h'e~Tr.i'bu._nai has awarded Rs.25,000/-- towards loss of'ariiieniVt'ie'sj,: ii.-si10,00()/- towards future unhappiness and 'nfrustratiori and Rs.10,00D/~ towards disabiiity. In this if :f_'rnAAarin.er,"i7{s.45,OO0/- is awarded giving different names. I ' feet the same is also reasonabie and is therefore affirmed. '4"v.V.iiowever, it is noticed that the during iaid--iip period, Qtgl, 6 Rs.20,000/- is awarded for five months at the rate of Rs.4,000/- p.m. But as proved b Ex.P7, salary:.f"~be'i.ng Rs.5,000/-, 1 enhance it to Rs.25,000/- tovxiyagrds,:the"lsa'idS head. _m~__

11. The head of cornpensation 2 iieeidsﬁ reconsideration is loss of "i's».:VVliature PW2-- Dr.Shivai<umar's evide.n:cey_anilfinéiifadyiyoiogicalvrebort leaves no scope for doubt that'.ll,iiﬂS:»'»»__now visited with 56% physical iivrnipiairmeﬂnt l His avocation as tailor is not his salary as RS.S,OiJO/';'_".V.fE?he have reduced it merely on the not examined. Therefore, as the docu'mePt_'i~.s li1ot'*"shown to be unbelievable, it is «..acceb'ted.i.aaiVdA. incoVm'e"i's' taken as Rs.S,OOO/- p.m. P'i1:ys,i_caw.l::"disability of lower limb is 56% and whole body'---disability at 19%. The Tribunal has taken 19% to _decide future loss of income. Merely because there is disability, claimant will not be entitled to loss of

-income, unless physical disability results in loss of earning /,i;i,;'l./ l/ 7 capacity or impedes the process of earning. In the instant case, tailoring job undoubtedly involves use of botvh_j"i4.i.yrre.bs but for which he will not be able to tailor any c!o:th."" . the lower limbs in operating the sewing machine'_fisV"no'"tiVced' "

as most essential. With 56% V"-;disa"bi..ii'ty'=.of~ T'oné'Ii"i--i.rht:h,:

appellant may be in a position t-o__carr'y. on Vhis'V:wo;_r'l<,.,ybut not--.i* to the extent he was doing Tfherefore, there is co--reEation bVetw"eenA--V_y.p%h'y's'icaVE:A'idisability and loss earning capacity-. and whole body disability playsiriwe have to consider disability.9f:_ti§§ii.:lh?l:bin been a different case if the appeEla._n~tlA Eiice clerical work or some such jobs in which lphyVs--ica'3.VAfitn'essis not very essential. In such a case._§fDhy*sical di-sabiiity would not cause any impediment in earnlilrrgiciapacity. For the reasons mentioned above, 19% ldisahbiyiity:'t_oV___th:e"'whoie body taken by the Tribunal is not V . correct. V-.C:)n'vthe other hand, we have to consider the extent loss ofﬁearning capacity due to 56% physical disability of dnVe'Ei'n1b. It would be safer to hold that earning capacity is T "reduced by 25%.

E54/)c.-'

13. The contention of the appellant that since he.--has been retrenched, he is entitled to 100% loss of.W:fut,u_re,, income is not acceptable. He may not be able to--fd'o ' work to the extent he was doing earl'ier,4 impossibility. Secondly, he can certai_n:ly_l"engla'g,e any other gainful employment. '--vf,l:l*ie,refoV're, the 'po'ssibil~it'y of " if his earning from othersQurces"'bei,_n{:l"ayailabi'e,.. is only entitled to loss of future of 25% which comes to Rs.1,2.E'sAf.V):,/V'r_~. Since the appella,,tviip,e§§;Vim.el'of the accident, the applicable"n;u.l,tipliet§ §;'?~~and thus, the multiplicand of Rs.1f:§V",.0O()'\/4 gives future loss of income at Rs,.2,,5s,ooo/¢{.

l':l4~. it:Ais,VV:rig,_htly pointed out to me that PW2 has deposed llabout.Aco4rr_elctiAye*:"surgery which has to be performed 0 the clairhant_','cost of which is estimated between Rs.9,000/-- Rs':1:0,000/--. The Tribunal has not awarded any i'~__"a.mou'ént under this head, hence, 1 award Rs.10,000/-- 'towards future medical expenses, which amount shall not at 9,, Vgh*"

carry any interest.

15. In the resuit, the award under the head"3E:osfS«V?:of'4 future income' is enhanced from Rs.1,5-§;'Q4QZ.;V'L:--..4-:5_'"*M' Rs.2,5S,OO0/~, and total cornpens'a't'ion¢ is Rs.4,13,ooo/--. This shall be the oni;}'--A.Aniodiii'cati-oyra award in question. Enhanced amot._i%nt shall carry i'nte'res5t at " V 6% pa to be dischargedby t_hre"in:su1rance ciiompangy within four weeks from the date'of":"e'ce.i3'p:t off of this order. Rest of the directt~o;:n's_ in avward are confirmed.

16. The ai:)pe*a.iV;i';_s' tvheiiabove terms. 35$ Edi?

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