Karnataka High Court
Chandrashekar vs Kotresh N on 7 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
-1-
NC: 2024:KHC:19931
MFA No. 3979 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 3979 OF 2021 (MV-I)
BETWEEN:
CHANDRASHEKAR
S/O BASAVARAJAPPA
AGED 47 YEARS,
AGRICULTURIST,
R/O NEAR GOVERNMENT HOSPITAL
UCHANGIDURGA VILLAGE
HARAPANAHALLI TALUK
DAVANAGERE DISTRICT
NOW R/O SHAMANUR VILLAGE
DAVANAGERE TQ AND DIST - 577 001
...APPELLANT
(BY SRI. G.J.SUNKAPUR, ADVOCATE)
Digitally
signed by V
KRISHNA AND:
Location:
High Court of 1. KOTRESH N
Karnataka S/O DIWAKAR N
AGE 30 YEARS,
DRIVER CUM OWNER OF THE CAR
BEARING NO. KA-17/P-8935
R/O UCHANGIDURGA VILLAGE
HARAPANAHALLI TALUK
DAVANAGERE DISTRICT - 577 001.
2. THE DIVISIONAL MANAGER
NATIONAL EGRO GENERAL
INSURANCE CO LTD.,
-2-
NC: 2024:KHC:19931
MFA No. 3979 of 2021
HDFC BUILDING, MG ROAD
BENGALURU - 560 001
...RESPONDENTS
(BY SRI.D. VIJAYA KUMAR, ADVOCATE FOR R-2;
R-1 - NOTICE DISPENSED WITH VIDE ORDER DT.11.04.2022)
***
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND
AWARD DATED 14.02.2020 PASSED IN MVC NO.752/2018 ON
THE FILE OF THE COURT OF III ADDITIONAL SENIOR CIVIL
JUDGE & VI M.A.C.T. AT DAVANAGERE, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the claimant under Section 173 (1) of the Motor Vehicles Act, 1988 (for short "M.V. Act"), against the judgment and award passed by the III Additional Senior Civil Judge and VI M.A.C.T., at Davanagere, (hereinafter for brevity referred to as "the Tribunal"), dated 14.02.2020 in M.V.C.No.752/2018, seeking enhancement of compensation. -3-
NC: 2024:KHC:19931 MFA No. 3979 of 2021
2. Though this appeal is posted for Admission, with the consent of the learned counsel for the parties, the same is taken up for final disposal.
3. Heard the arguments of the learned counsel for the appellant and learned counsel for the second respondent - Insurer. Notice to first respondent is dispensed with vide order dated 11.04.2022.
4. The case of the appellant who was the petitioner in the Tribunal is that, he filed a claim petition under Section 166 of the M.V. Act, claiming compensation of a sum of `5,00,000/- on account of the injuries sustained by him in the road traffic accident that occurred on 17.02.2018 at about 3:00 p.m.
5. It is alleged that on 17.02.2018 at about 3:00 p.m., when the appellant was proceeding in a Car bearing Registration No.KA-17/P-8935 driven by first respondent, between Uchangidurga-Harapanahalli Road, the driver of the said Car drove the vehicle in a rash and negligent manner with a high speed, due to which, the vehicle -4- NC: 2024:KHC:19931 MFA No. 3979 of 2021 toppled and he fell down and sustained injuries. Immediately, he was taken to the City Central Hospital, Davanagere, where he underwent a surgery and took medical treatment as an in-patient from 17.02.2018 to 22.02.2018.
The appellant contended that he incurred expenses of a sum of `1,00,000/- towards treatment and nourishment. Prior to the accident, he was doing agriculture and earning a sum of `15,000/- per month. On account of the road traffic accident, he has sustained fracture on his left shoulder, as such, he could not do his work as earlier due to the accidental injuries. He suffered permanent physical disability and sustained loss of future earning capacity.
6. In response to the notice served upon the respondents, though both the respondents appeared before the Tribunal through their respective Advocates, however, it is only the second respondent-Insurer which filed its Statement of Objections and contended that the -5- NC: 2024:KHC:19931 MFA No. 3979 of 2021 driver of the offending vehicle was not holding a valid and effective Driving Licence as at the time of the occurrence of the accident. It further contended that there is violation of the terms of the insurance policy, as such, it is not liable to indemnify the insured and sought to dismiss the claim petition.
7. Based upon the pleadings of the parties, the Tribunal framed the following issues for its consideration.
1. Whether the petitioner proves that, on 17.2.2018 at about 3:30 PM when he was proceeding in a Car bearing Reg.No.KA-17/P.8935 driven by 1st respondent, between Uchangidurga- Harapanahalli road, the driver of the vehicle drove the same in a rash and negligent manner and at that time the cattle came across the road as a result the vehicle toppled and as a result he suffered injuries?
2. Whether the petitioner is entitle for the compensation as prayed? If so, at what rate?
3. What Order?
8. To prove his case, the claimant (appellant herein) got himself examined as PW-1 and also examined -6- NC: 2024:KHC:19931 MFA No. 3979 of 2021 one witness, Dr. Ramesh Poojar, as PW-2 and got marked eleven documents from Exs.P-1 to P-11. On behalf of the respondents, neither any witnesses were examined nor any documents were got marked.
9. After hearing the arguments and going through the entire material placed before it, the Tribunal, by answering issue No.1 in the affirmative, issue No.2 partly in the affirmative and issue No.3 as per the final order, allowed the claim petition in part by granting the compensation under the following heads with the sum shown against them:
Sl.
Heads of compensation Amount in `
No.
1 Loss of future earning capacity 98,280-00
2 Pain and sufferings 25,000-00
3 Loss of amenities 05,000-00
4 Medical expenses 49,457-00
5 Loss of income during laid up period 09,000-00
for one month
6 Nourishment and conveyance 05,000-00
Total 1,91,737-00
10. The Tribunal rounded it off and awarded
compensation of a sum of `1,91,740/- with interest at the -7- NC: 2024:KHC:19931 MFA No. 3979 of 2021 rate of `9% per annum from the date of the claim petition till the date of deposit of the entire amount, holding the respondents 1 and 2 jointly and severally liable to pay the compensation, however, directed the second respondent- Insurer to deposit the compensation amount in the Tribunal. Being aggrieved by the quantum of compensation, on the ground that it is inadequate, the claimant has filed this appeal seeking enhancement of compensation.
11. Heard the argument of the learned counsel for the appellant (claimant), who appeared and the argument of the learned counsel for second respondent-Insurer, who appeared through video conference. Perused the materials placed before this Court including the memorandum of appeal and the impugned judgment and award passed by the Tribunal.
12. Learned counsel for the appellant seriously contended that the quantum of compensation awarded by the Tribunal under all the heads is meagre. He submitted -8- NC: 2024:KHC:19931 MFA No. 3979 of 2021 that, on account of the road traffic accident, the appellant has sustained fracture on his left shoulder and other injuries, but the Tribunal has awarded only a sum of `25,000/- towards pain and suffering, which requires reasonable enhancement. He submits that the compensation awarded towards loss of amenities and nourishment and conveyance is also too less and liable to be enhanced reasonably. Further, he submitted that the compensation awarded towards loss of future earning capacity is also on the lower side for the reason that the Tribunal has assessed the monthly notional income of the appellant at only a sum of `9,000/-, when in fact, at the relevant point of time, the MACTs were taking the notional income at `12,500/- per month. Therefore, he prayed to re-assess the income and award reasonable compensation towards loss of future earning capacity. Thus, he sought to award reasonable compensation under all the heads by modifying the impugned judgment and award passed by the Tribunal.-9-
NC: 2024:KHC:19931 MFA No. 3979 of 2021
13. Per contra, learned counsel for the second respondent - Insurer, though supported the impugned judgment and award passed by the Tribunal, however, fairly submitted that the notional income assessed by the Tribunal appears to be on the lower side and that reasonable enhancement may be made by modifying the impugned judgment and award passed by the Tribunal.
14. After hearing the arguments of the learned counsel for the parties, the only point that arise for my consideration is, Whether the Tribunal erred in computing the loss of future income on account of disability and awarded meager compensation under other heads and hence the appellant is entitled for enhancement of compensation?
15. The Police have filed the charge sheet against the driver of the offending Car, which is not contested. The present appeal being the claimant's appeal and the respondent Insurer having not preferred either cross- objection or a counter appeal, the question of occurrence
- 10 -
NC: 2024:KHC:19931 MFA No. 3979 of 2021 of accident on the date, time and place as alleged by the claimant and also the alleged rash and negligent driving on the part of the driver of the offending Car is not in dispute. Thus, the only question that remains for consideration is about the quantification of the compensation, which, according to the claimant/appellant, is inadequate.
16. It can be seen that the Tribunal has awarded compensation of a sum of `25,000/- towards pain and sufferings. Due to the accident, the appellant has sustained fracture on his left shoulder. Considering the nature of injuries sustained by the appellant, I am of the view that, the compensation awarded at `25,000/- towards pain and sufferings is just and proper and it does not call for any interference at the hands of this Court.
17. As regards the medical expenses, the Tribunal has rightly awarded the compensation of a sum of `49,457/- as per the medical bills and prescriptions
- 11 -
NC: 2024:KHC:19931 MFA No. 3979 of 2021 produced by the appellant. Hence, it does not call for interference at the hands of this Court.
18. As regards the compensation towards loss of amenities, it is pertinent to note that, the Tribunal has awarded compensation of a sum of `5,000/-. The same is on the lower side for the reason that he was aged about 47 years at the time of accident and because of the injuries sustained in the accident, he is deprived of comforts in his future life. Hence, I deem it fit and proper to award a sum of `10,000/- as against `5,000/- awarded by Tribunal.
19. As regards nourishment expenses and conveyance charges, the Tribunal has awarded a sum of `5,000/-. He was in-patient for six days in City Central Hospital, Davanagere. Thus, considering the nature of injuries and period of treatment undergone, I am of the view that the compensation awarded by Tribunal being just and proper, it does not call for interference at the hands of this Court.
- 12 -
NC: 2024:KHC:19931 MFA No. 3979 of 2021
20. As regards the compensation awarded towards loss of future earning capacity on account of permanent disability of the appellant, it can be seen that the Doctor(PW-2) has stated that the appellant has sustained fracture of left clavicle bone. PW-2, by clinical and radiological methods, assessed the functional disability at 23% towards the particular limb. When the said disability is considered to whole body, it comes to 7%, which is 1/3rd of 23%.
The Tribunal grossly erred in assessing the notional monthly income of the appellant at only `9,000/-. During the said period, the MACTs were assessing the notional income at `12,500/- per month, which is not disputed by the learned counsel for the Insurance Company. Accordingly, I propose to assess the notional income of the appellant at `12,500/- per month as against `9,000/- per month assessed by the Tribunal.
As per the Wound Certificate at Ex.P-3, the appellant was aged about 47 years as at the time of the accident.
- 13 -
NC: 2024:KHC:19931 MFA No. 3979 of 2021 For the said age, the proper multiplier applicable as per the decision of the Hon'ble Apex Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and another reported in AIR 2009 SUPREME COURT 3104, is '13'. Thus, taking the notional monthly income at `12,500/-, disability at 7% and multiplier of '13', the compensation towards loss of future income on account of disability comes to `1,36,500/- (i.e `12,500/-x12 x 7% x'13'). Accordingly, the same is awarded as against a sum of `98,280/- awarded by the Tribunal.
21. In so far as the compensation awarded towards loss of income during laid up period is concerned, it can be seen that, on account of the fracture of clavicle bone and other injuries sustained in the road traffic accident, he was hospitalised for a period of six days from 17.02.2018 to 22.02.2018. He was advised follow-up treatment for four to five times. Thus, considering the fracture and other injuries and follow-up treatment, I am of the view that he must have taken rest and been away from his work at
- 14 -
NC: 2024:KHC:19931 MFA No. 3979 of 2021 least for a period of two months. Thus, taking his notional income at `12,500/- per month, for two months, the compensation towards loss of income during the laid up period comes to `25,000/- as against a sum of `9,000/- awarded by Tribunal.
22. Barring the above, the claimant is not entitled for compensation under any other heads or for any modification or enhancement of compensation under any other existing heads.
Thus, the appellant is entitled for a modified compensation as tabulated below:
Sl.
Heads of compensation Amount in `
No.
1 Loss of future earning capacity 1,36,500-00
2 Pain and sufferings 25,000-00
3 Loss of amenities 10,000-00
4 Medical expenses 49,457-00
5 Loss of income during laid up period 25,000-00
for two months
6 Nourishment and conveyance 05,000-00
Total 2,50,957-00
Since the quantum of compensation awarded by the Tribunal at `1,91,740/- is in short by a sum of `59,217/-,
- 15 -
NC: 2024:KHC:19931 MFA No. 3979 of 2021 for the said enhancement of a sum of `59,217/-, rounded off to a sum of `59,220/-, the impugned judgment and award deserves to be interfered with.
Accordingly, I proceed to pass the following :
ORDER [i] The appeal filed by the appellant stands allowed in part;
[ii] The impugned judgment and award passed by the III Additional Senior Civil Judge and VI M.A.C.T., at Davanagere, dated 14.02.2020 passed in M.V.C.No.752/2018, is hereby modified to the extent that the compensation awarded at `1,91,740/- is enhanced by a sum of `59,220/- (Rupees Fifty Nine Thousand Two Hundred and Twenty only), with interest at the rate of 6% per annum on the enhanced compensation, thus fixing the total compensation at `2,50,957/- (Rupees Two Lakhs
- 16 -
NC: 2024:KHC:19931 MFA No. 3979 of 2021 Fifty Thousand Nine Hundred and Fifty Seven Only).
The second respondent - Insurer is directed to deposit the enhanced compensation with interest at 6% per annum, within two months from the date of receipt of a copy of the award;
Since the enhanced quantum of compensation is not huge, the entire sum shall be released in favour of the appellant, after his proper identification, in accordance with law.
Draw the modified award accordingly. Registry to transmit a copy of this judgment to the concerned Tribunal, without delay.
Sd/-
JUDGE BMV* List No.: 1 Sl No.: 34