Karnataka High Court
Sri Raghavendra V vs Sri Anandtheertha B on 26 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:23496
MFA No. 134 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 134 OF 2022 (MV)
BETWEEN:
SRI RAGHAVENDRA V
S/O VEERABADRAIAH
AGE 42 YEARS,
R/O AVATHI VILLAGE,
DR RAJKUMAR TALUK,
DEVANAHALLI TALUK,
BENGALURU DISTRICT - 562 164.
...APPELLANT
(BY SRI LATUR SURESH MAHALINGAPPA, ADV.)
AND:
1. SRI ANANDTHEERTHA B
S/O B.S. KRISHNAMURTHY
NO.68, NEAR VIJAYA MANDIR,
2ND MAIN, 5TH CROSS,
Digitally MARUTHI NAGAR, YELAHANKA,
signed by BENGALURU - 560 064.
NANDINI MS
Location: 2. THE MANAGER,
High Court of
Karnataka TATA AIG INSURANCE COMPANY
LTD., BANGALORE
NO69, 2ND FLOOR,
JP AND DEVI JAMBUKESHKAR
ARCADE, NEW ICICI FIRST
SOURCE, MILERS ROAD,
BENGALURU - 560 052.
...RESPONDENTS
(BY SRI L. SREEKANTA RAO, ADV., FOR R-2;
V/O DATED 12.07.2022, NOTICE TO R-1
IS DISPENSED WITH)
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NC: 2024:KHC:23496
MFA No. 134 of 2022
THIS MFA IS FILED U/S 173(1) OF MV ACT PRAYING AGAINST
THE JUDGMENT AND AWARD DATED 12.10. 2021 PASSED IN MVC
NO. 2036/2019 ON THE FILE OF THE VII ADDITIONAL SMALL
CAUSES JUDGE AND ACMM, MEMBER, MACT-3, COURT OF SMALL
CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant under Section 173(1) of Motor Vehicles Act, 1988 challenging the judgment and award dated 12.10.2021 passed in MVC No.2036/2019 by the Court of Small Causes & Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as the 'Tribunal').
2. Heard the arguments of the learned counsel for the appellant and learned counsel for respondent No.2- Insurance Company.
3. The status of the parties before the Tribunal is retained for the sake of convenience.
4. The case of the appellant/claimant is that the petitioner filed a claim petition before the Tribunal under -3- NC: 2024:KHC:23496 MFA No. 134 of 2022 Section 166 of Motor Vehicles Act (for short 'M.V. Act') claiming compensation of Rs.15,00,000/- for the injuries sustained by him in a road traffic accident that occurred on 18.02.2019 inter alia contending that on the said date at about 4.20 p.m, when he was proceeding from Yarthiganahalli to Kannamangala Gate, while crossing B.B.Road, at that time the driver of car bearing Registration No.KA-51-Z-0371 came from Devanahalli to Bengaluru in a rash and negligent manner and dashed against the petitioner's motor cycle due to which, he has sustained grievous injuries and was taken to private hospital at Devanahalli for treatment and then he was admitted to Baptist Hospital, Bengaluru and for further treatment he was admitted to Victoria hospital, Bengaluru. Therefore, he became disabled and unable to work. Hence, he prayed to grant compensation.
5. Learned counsel for respondent No.1 has filed statement of objection by denying occupation and income of the petitioner. However, it is contended that the -4- NC: 2024:KHC:23496 MFA No. 134 of 2022 petitioner is insured the vehicle with respondent No.2. Respondent No.2 has also filed statement of objection by denying all the contentions of respondent No.1 and prayed for dismissal of the petition.
6. On the basis of pleadings, the tribunal framed the following issues for consideration:
1. Whether the Petitioner proves that, he has sustained grievous injuries in the accident occurred on 18.02.2019 at about 4.20 p.m, near Kannamangala Gate, B.B.Road, Devanahalli, Bengaluru, due to negligent act of driver of Car bearing reg.No.KA-51-Z-0371 as alleged in the petition?
2. Whether the Petitioner is entitled for Compensation? If so, what is the quantum of compensation and from whom?
3. What order or award?
7. In order to substantiate the case, the petitioner himself examined as PW.1 and he has also examined doctor as PW.2 and record keepers of Baptist Hospital and Victoria Hospital were examined as PWs.3 and 4 and in -5- NC: 2024:KHC:23496 MFA No. 134 of 2022 total got marked documents as 26 documents as Exs.P1 to P26. On behalf of the respondents no evidence let in.
8. On the basis of material evidence, both oral and documentary and on hearing the submissions of learned counsel for both parties, the tribunal answered issue No.1 in affirmative and issue No.2 in partly affirmative. Consequently, allowed the petition in part by granting compensation of Rs.5,95,000/- with 6% interest. Being aggrieved by the compensation, the claimant is before this Court.
9. Learned counsel for the appellant submits that as the accident occurred in the year 2019, the Tribunal has considered notional income of Rs.9,000/- which is very meager. The disability given by the Doctor to whole body is 21% but the Tribunal considered only 14% disability to the whole body. There is no compensation under the head loss of future prospects and compensation awarded under other heads is very meager, hence, he prays for enhance the same.
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NC: 2024:KHC:23496 MFA No. 134 of 2022
10. Per contra, the learned counsel for respondent- Insurance Company, supported the judgment of Tribunal justifying the judgment and award passed by the Tribunal. Further, he contended that the Tribunal has assessed the disability correctly which does not call for interference and in all other heads, the tribunal has awarded reasonable compensation. Therefore, on these grounds, he seeks dismissal of the appeal.
11. Having heard the learned counsel for appellant- claimant and the learned counsel for respondent-Insurance Company, the point that arise for my consideration is Whether the appellant is entitled for enhancement of compensation. If so, to what extent?
12. The accident in question dated 18.02.2019 is not in dispute due to which the petitioner had sustained grievous injuries. Exs.P1 to P3 is police records. As per Exs.P5 & P6 he has sustained grievous injuries. Wound certificate at Ex.P6 reveals that there was right leg mid -7- NC: 2024:KHC:23496 MFA No. 134 of 2022 shaft fracture, comminuted fracture medial malleolus, Tibial posterior tendon laceration and cut wound on left eyebrow. The petitioner admitted in the hospital for 2-3 days including Victoria hospital as well as Baptist hospital, Bengaluru. He has admitted in the hospital for 35 days and 3 times he was inpatient. Hence, he could have suffered lot of pain and agony. The Tribunal has awarded Rs.50,000/- towards pain and agony which is very meager. Hence, it is just and proper to award Rs.75,000/- towards pain and agony,.
13. As regards medical expenses, the Tribunal has awarded Rs.1,99,159/-, which is based on the medical expenses incurred by the petitioner. Therefore, there is no need to interfere with the same.
14. As regards to amenities and nutritious food, the Tribunal has awarded Rs.30,000/-. The petitioner was admitted in the hospital for 35 days. The Tribunal has awarded Rs.20,000/- towards attendant charges and conveyance. In total Rs.50,000/- was awarded by the -8- NC: 2024:KHC:23496 MFA No. 134 of 2022 Tribunal towards Loss of amenities & nutritious food and attendant charges & conveyance. Under the facts and circumstances, I deem it just and proper to award another Rs.20,000/- under this head.
15. As regard to loss of income during the laid up period, The Tribunal has taken the notional income of the claimant as Rs.9,000/-, which is not correct. Therefore, the notional income would be Rs.14,000/- p.m. as per the chart prepared by the Karnataka State Legal Services Authority. Though the petitioner has stated that he is a photographer and earning more income but no documents were produced to prove his income and profession. Therefore, there is no option to this Court to consider notional income as Rs.14,000/-. as the accident occurred in the year 2019. The laid up period is taken as six months and calculated as Rs.14,000/- x 6 = Rs.84,000/-.
16. The petitioner is also entitled for future medical expenses towards removal of implants. He has undergone surgery. The Tribunal has awarded Rs.15,000/- towards -9- NC: 2024:KHC:23496 MFA No. 134 of 2022 future medical expenses, which is very meager. For the purpose of treatment and surgery he has admitted to Baptist hospital. If such being the case, he has to come before the same hospital for removal of implants. Therefore, he may requires Rs.50,000/- towards medical expenses. Therefore, I propose to award Rs.50,000/- towards future medical expenses.
17. As regards loss of income due to disability, the doctor has stated 41.59% towards disability of limb and 20.79% towards whole body. Though learned counsel for the appellant has contended to take 21% as disability, the petitioner has sustained injury on other parts of the body but the disability is only to right leg which is fracture injury. Therefore, disability is only to particular one limb. Normally, the Court used to consider 1/3rd disability towards whole body. The Tribunal has rightly taken 1/3rd disability to whole body instead of 1/2 disability to whole body as suggested by the doctor and therefore, there is no
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NC: 2024:KHC:23496 MFA No. 134 of 2022 need to consider 21% disability to the whole body instead of 14% as considered by the Tribunal.
18. As regard to future prospects, learned counsel for the appellant contended that the petitioner is entitled for loss of future prospects. Though the petitioner/claimant is a photographer but he has not produced any document to prove his profession and due to the injury he has suffered physical functional disability. In order to grant any loss of income towards future prospects, the petitioner/claimant has to prove physical functional disability. Therefore, contention of learned counsel for the appellant is not acceptable and there is no loss of future prospects due to physical functional disability. Hence, question of awarding loss of future income does not arise. Therefore, the petitioner is entitled only for loss of income due to disability. Accordingly, loss of income due to disability is calculates as follows:
14,000/- x 12 x 15 x 14%=Rs.3,52,800/-
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NC: 2024:KHC:23496 MFA No. 134 of 2022
19. Therefore, the loss of income due to disability would be Rs.3,52,800/- as against Rs.2,26,800/- awarded by the tribunal.
20. In view of the above, the claimant would be entitled to a total compensation of Rs.8,30,959/- and the same is rounded off to Rs.8,31,000 as against Rs.5,95,000/- as mentioned in the table below:
Heads Amount in
Rs.
Loss of future income 3,52,000-00
Pain and agony 75,000-00
Medical expenses 1,99,159-00
Loss of amenities & nutritious food & 70,000-00
Attendant charges & conveyance
Loss of income during laid up period 84,000-00
Future medical expenses 50,000-00
TOTAL 8,30,959-00
Rounded off Rs.8,31,000.00
21. Accordingly, I pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The judgment and award dated 12.10.2021 passed in MVC No.2036/2019 by the Motor
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NC: 2024:KHC:23496 MFA No. 134 of 2022 Accident Claims Tribunal, Court of Small Causes, Bengaluru is modified;
iii) The claimant would be entitled to a sum of Rs.8,31,000/- as against Rs.5,95,000/-;
iv) The enhanced compensation amount shall be paid by the respondent-Insurance Company with interest @ 6% per annum within a period of two months from the date of receipt of a copy of this order;(excluding future medical expenses)
v) Out of the enhanced compensation, 60% shall be released in favour of the claimant and 40% to be deposited in any nationalized bank in the name of petitioner;
vi) Registry is directed to return the Trial Court records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
vii) Draw award accordingly.
Sd/-
JUDGE NMS