Karnataka High Court
The Divisional Manager vs Shri.Sidram S/O Laxman Pujeri on 27 June, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:8765-DB
MFA No. 102447 of 2022
C/W MFA No. 100019 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.102447 OF 2022 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.100019 OF 2020
IN MFA NO.102447 OF 2022
BETWEEN:
SHRI SIDRAM S/O. LAXMAN PUJERI,
AGE. 38 YEARS, OCC. AGRICULTURE NOW NIL,
R/O. RAIBAG, DIST. BELAGAVI
...APPELLATE
(BY SRI V.S. KALASURMATH, ADVOCATE)
AND:
1. SHRI K.DURAISWAMY S/O. KALIMUTTU,
AGE. MAJOR, OCC. BUSINESS,
R/O. HIDAKAL DAM, TQ. HUKKERI,
Digitally signed DIST. BELAGAVI.
by VINAYAKA B V
Location: HIGH 2. THE DIVISIONAL MANAGER,
COURT OF
KARNATAKA NATIONAL INSURANCE COMPANY LTD.,
RAMADEV GALLI, BELAGAVI.
...RESPONDENTS
(BY SRI GANGADHAR S.HOSAKERI, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS UNDER SECTION
173 (1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT
AND AWARD DATED 18.10.2019 PASSED IN MVC
NO.2684/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG, ALLOWING THE
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NC: 2024:KHC-D:8765-DB
MFA No. 102447 of 2022
C/W MFA No. 100019 of 2020
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.,
IN MFA NO.100019 OF 2020
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
RAMADEV GALLI, BELAGAVI,
(INSURER OF TRIPPER BEARING NO.GA-09/U-4904)
POLICY NO.610201311610007949
VALID FROM 20.02.2017 TO 19.02.2018
NOW REPRESENTED BY ITS AUTHORIZED
SIGNATORY ADMINISTRATIVE OFFICE,
REGIONAL OFFICE, HUBBALLI.
...APPELLATE
(BY SRI GANGADHAR S.HOSAKERI, ADVOCATE)
AND:
1. SHRI SIDRAM S/O. LAXMAN PUJERI,
AGE. 38 YEARS, OCC. AGRICULTURE NOW NIL,
R/O. SAVASUDDI, TQ. RAIBAG, DIST. BELAGAVI.
2. SHRI K.DURAISWAMY S/O. KALIMUTTU,
AGE. MAJOR, OCC. BUSINESS,
R/O. HIDAKAL DAM, TQ. HUKKERI,
DIST. BELAGAVI.
(OWNER OF TIPPER BEARING NO.GA-09/U-4904)
...RESPONDENTS
(BY SRI V.S. KALASURMATH, ADVOCATE FOR R1;
NOTICE TO R2 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS UNDER SECTION
173 (1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT
AND AWARD DATED 18.10.2019 PASSED IN MVC
NO.2684/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG, AWARDING
COMPENSATION OF RS. 20,79,102/- WILL INTEREST AT 6%
P.A. FROM THE DATE OF PETITION ITS DEPOSIT.
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NC: 2024:KHC-D:8765-DB
MFA No. 102447 of 2022
C/W MFA No. 100019 of 2020
THESE MISCELLANEOUS FIRST APPEALS, COMING ON
FOR FURTHER ORDERS, THIS DAY, BASAVARAJA, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
Both these appeals arise out of the judgment and award dated 18th October, 2019 passed in MVC No.2684 of 2017 by the Senior Civil Judge and JMFC, Raibag (for short hereinafter referred to as "the Tribunal").
2. For the sake of convenience, the parties in these appeals are referred to with their rank and status before the Tribunal.
3. Brief relevant facts that led to filing of these appeals are that the petitioner filed claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the injuries suffered in the road traffic accident. It is stated in the claim petition that on 07th December, 2017 at about 2.30 pm, near Belladbagewadi Canal on Hukkeri-Belladbegewadi road, the petitioner was proceeding on motorcycle bearing Registration No.KA-23/EC-0505, at that time, the driver of the Tipper bearing Registration No.GA-09/U-4904 drove the same in a high speed, rash and negligent manner causing danger to -4- NC: 2024:KHC-D:8765-DB MFA No. 102447 of 2022 C/W MFA No. 100019 of 2020 the human life, and lost his control and dashed to the motorcycle being ridden by the claimant and caused the accident. Due to impact the petitioner sustained compound comminuted fracture proximal one-third right leg (tiba and fibula) with cut lacerated wound 2 x 1 cm. Immediately, he was shifted Ganga Surgical and Fracture Clinic, Gokak wherein he was there as an inpatient for more than fifteen days and spent Rs.2.50 lakhs towards medical expenses. It is further stated that the petitioner is aged 35 years, was an agriculturist and was also doing milk vending and earning an amount of Rs.10.00 lakh per annum. The injured is the only earning member in the family and due to the unfortunate accident, the petitioner has become permanently disabled and unable to work and earn as he was prior to accident. It is contended that the respondent No.1 who is the owner of the offending Tipper and the respondent No.2 who is the insurer are jointly and severally liable to pay the compensation to the petitioner and hence, prayed for compensation.
4. In pursuance to summons, respondents appeared and filed statement of objections. The sum and substance of respondent No.1 denying the averments made in the claim -5- NC: 2024:KHC-D:8765-DB MFA No. 102447 of 2022 C/W MFA No. 100019 of 2020 petition. The contention of the clamant that the driver of the offending vehicle drove the same in a rash and negligent manner is denied and hence, prayed for dismissal of the claim petition.
5. The respondent No.2-Insurer in its statement of objections stated that the petition is not maintainable in the eye of law. It is also contended that the driver of the Tipper did not possess valid and effective driving licence as on the date of accident. It is also denied as to the other averments made in the claim petition and accordingly, sought for dismissal of the claim petition.
6. Based on the pleading, Tribunal framed appropriate issues. To prove the case of the petitioner, petitioner has examined two witnesses as PWs.1 and 2 and marked sixteen documents as per Exhibits P1 to P16. The respondents have not adduced any evidence. Upon hearing the arguments on both sides, the Tribunal allowed the claim petition with costs and awarded compensation of Rs.20,79,102/- with interest at the rate of 6% per annum excluding the amount of Rs.5,00,000/- awarded towards purchase of artificial limbs. -6-
NC: 2024:KHC-D:8765-DB MFA No. 102447 of 2022 C/W MFA No. 100019 of 2020 Being aggrieved by the judgment and award passed by the Tribunal, the appellant-Insurance Company has preferred MFA No.100019 of 2020 questioning the quantum of compensation; being not satisfied with the compensation awarded by the Tribunal, the claimant has preferred MFA No.102447 of 2022 seeking enhancement of compensation.
7. Sri Gangadhar Hosakeri, learned counsel appearing for the appellant-Insurance Company submits that the judgment and award passed by the Tribunal is contrary to law and the facts of the case and the same is erroneous. The Tribunal has failed to appreciate the evidence as well as documents placed before it by the parties. As regards quantum of compensation is concerned, it is the submission of the learned counsel that the Tribunal as committed an error in awarding Rs.5,00,000/- towards purchase of artificial limb. He submits that the petitioner has only submitted the quotation and has not let in any evidence to prove the said document. The learned counsel would further submit that the Tribunal has considered 80% disability to the whole body which is arbitrary and the same deserves to be interfered with. Further, he submits that time and again the Constitutional Courts have held -7- NC: 2024:KHC-D:8765-DB MFA No. 102447 of 2022 C/W MFA No. 100019 of 2020 that, without any basis the Tribunal should not presume the income of the petitioner and award just compensation. However, the Tribunal in the instant case, has not considered the law laid down by the constitutional courts and has awarded very high compensation and the same is to be revisited by this Court. On all these grounds, sought to allow the appeal.
8. On the other hand, Sri V.S.Kalasurmath, learned counsel appearing for the claimant would submit that the Tribunal has awarded compensation of Rs.12,28,800/- towards loss of future earning taking the monthly income of the claimant at Rs.8,000/- per month and taking 80% disability to the whole body, which is meager and the same requires enhancement. The Tribunal has committed an error in awarding Rs.80,000/- under the head pain and suffering though the injury caused is grievous in nature and the claimant has undergone operation and there is 100% functional disability on account of amputation of limb, in spite of the same, the Tribunal has awarded meager compensation. Further, though the claimant has spent more than Rs.2.50 lakh towards treatment and has produced the medical bills, so also, the claimant needs medical treatment throughout his life, awarding -8- NC: 2024:KHC-D:8765-DB MFA No. 102447 of 2022 C/W MFA No. 100019 of 2020 of Rs.1,97,302/- under the said head is meager and requires enhancement. It is further submitted that the compensation awarded under other heads viz. food, nourishment and conveyance charges, and loss of income during the laid up are on lower side. On all these grounds sought to allow the appeal.
9. Having heard the learned counsel appearing for the parties and on perusal of appeal papers, the following points would arise for our consideration:
1. Whether the Tribunal is justified in awarding compensation of Rs.5,00,000/- towards purchase of artificial limb?
2. Whether the claimant is entitled for enhancement of compensation on other heads?
3. What order or award?
Our answer for the above points is as under:
Points No.1 & 2: partly in the affirmative; Point No.3: as per final order -9- NC: 2024:KHC-D:8765-DB MFA No. 102447 of 2022 C/W MFA No. 100019 of 2020 Regarding Points No.1 and 2:
10. With regard to purchase of artificial limb is concerned, the Tribunal has awarded Rs.5,00,000/-. In this regard, the petitioner has produced only Exhibit P11 prescription and quotation. On that basis, the Tribunal has awarded an amount of Rs.5,00,000/- for purchase of artificial limb. The petitioner has not adduced or placed any cogent or corroborative evidence to prove the said document. Hence, Tribunal is not justified in awarding an amount of Rs.5.00 lakh towards purchase of artificial limb. However, considering the nature and gravity of injury, so also, the medical evidence, it is just and proper to award an amount of Rs.3,00,000/- towards purchase of artificial limb as against Rs.5,00,000/- awarded by the Tribunal. Accordingly, we answer point No.1 in the partly affirmative.
11. We have examined the material placed before this Court. There is no dispute with regard to occurrence of accident on account of rash and negligent act on the part of the driver of the Tipper. It is also not in dispute as to claimant suffering accidental injuries. Hukkeri Police has registered case
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NC: 2024:KHC-D:8765-DB MFA No. 102447 of 2022 C/W MFA No. 100019 of 2020 in Crime No.221 of 2017 for the offence punishable under Section 279 and 338 of Indian Penal Code and conducted investigation and filed charge sheet against the driver of the offending Tipper. The Insurance Company has questioned as to the quantum of compensation awarded by the Tribunal. With regard to quantum of compensation is concerned, the petitioner has got himself examined as PW1. He has deposed in his evidence that due to accident he has suffered grievous injuries. The petitioner sustained compound comminuted fracture proximal one-third right leg (tiba and fibula) with cut lacerated wound 2 x 1 cm; Neuro-vascular compression and gangrene of right lower limb, limb cold toe movements absent/no sensation in toes/muscles unhealthy. It is stated that the petitioner was an inpatient for fifteen days and had taken treatment to the said injuries and spent more than Rs.2.50 lakh towards medical expenses. PW2-Doctor has deposed that the petitioner sustained injury in the road traffic accident, underwent operation and was in hospital from 07th to 20th December, 2017 and has also stated as to the injuries suffered by the petitioner as is deposed by PW1. It is further deposed that the petitioner has undergone operation on 07th December, 2017 under spinal
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NC: 2024:KHC-D:8765-DB MFA No. 102447 of 2022 C/W MFA No. 100019 of 2020 tourniquet fracture upper and right tibia exposed by lateral incision reduced and stabilized by a IFS plate and screws wound closed in layers above knee plaster with derotation bar applied. On 08th December, 2017 has undergone plastic and micro vascular faciotomy of post compartment, inside graft taken from saphenois vein and joined to side of traumatized popleateal artery and ant tibial artery bypassed clots removed by foragti catheter and the wound closed partially and further the patient has come up for follow-up treatment on 28th December, 2017, 19th January, 2018, 28th February, 2018 and on 14th March, 2018. The Ministry of Social Justice prescribed a disability for amputation of lower limbs at 80%. PW2 is a treated Doctor. Upon examination of the petitioner, it was seen that the petitioner complain pain in the amputation area and he is not able to stand and walk and has difficulty in sleeping, wearing cloth, turning on bed, climbing staircase and has imbalance and instability due to los of right lower limb and hence he opined that the petitioner has got 100% functional disability to the whole body. Considering the medical evidence and the nature and gravity of injuries sustained by the petitioner, we are of the opinion that it just and proper to
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NC: 2024:KHC-D:8765-DB MFA No. 102447 of 2022 C/W MFA No. 100019 of 2020 assess the functional disability to the petitioner at 100% instead of 80% assessed by the Tribunal.
12. With regard to the income of the petitioner is concerned, the Tribunal has assessed the notional income of the deceased at Rs.8,000/- per month, which is not in consonance with the chart prepared by the Karnataka State Legal Service Authority. According to chart, for the accidents of the year 2017, the notional monthly income is to be taken at Rs.10,250/-. Since we hold that the petitioner sustained 100% permanent functional disability and since the petitioner is self- employed, as per the decision of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS, reported in AIR 2017 SC 5157, the petitioner is entitled for 40% future prospects. Accordingly, the monthly income would be come to Rs.14,350/-. Hence, the compensation under the head loss of future income would be Rs.27,55,200/- (Rs.14,350/- x 12 x 16 x 100%). As regards pain and suffering is concerned, the Tribunal has awarded compensation of Rs.80,000/- and the same is just and proper. Considering the medical bills placed by the petitioner, the Tribunal has awarded an amount of Rs.1,97,302/- towards
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NC: 2024:KHC-D:8765-DB MFA No. 102447 of 2022 C/W MFA No. 100019 of 2020 medical expenses and the same is left unaltered. The Tribunal has awarded an amount of Rs.48,000/- towards loss of income during the laid up period. Since we hold that the petitioner has suffered 100% permanent functional disability and the compensation is awarded under the head loss of future income by adding future prospects, the petitioner is not entitled for compensation under the head loss of income during the laid-up period. The Tribunal has awarded Rs.25,000/- towards food, nourishment, attendant and conveyance charges. The same does not call for any interference. The Tribunal has not awarded any amount towards loss of amenities. Considering the trauma and discomfort to be undergone by the petitioner for the rest of his life, an amount of Rs.50,000/- is awarded towards loss of amenities. The petitioner has sought an amount of Rs.5.00 lakh for future medical expenses. Since the petitioner has not placed any material before this Court to substantiate his submission, the petitioner is not entitled for compensation towards future medical expenses as sought for.
13. In the result, the petitioner is entitled for modified compensation as under:
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NC: 2024:KHC-D:8765-DB
MFA No. 102447 of 2022
C/W MFA No. 100019 of 2020
Sl.No. Head Amount (in Rs.)
1. Pain and suffering
80,000.00
(as awarded by the Tribunal)
2. Loss of future income 27,55,200.00
3. Towards medical expenses (as
1,97,302.00
awarded by the Tribunal)
4. Loss of amenities 50,000.00
5. Food, nourishment, Attendant
and conveyance charges (as 25,000.00
awarded by the Tribunal)
6. Purchase of artificial limb 3,00,000.00
Total 34,07,502.00
Accordingly, we answer point No.2, partly in the affirmative. Regarding point No.3:
14. For the aforestated reasons and discussions, we proceed to pass the following:
ORDER
1. Appeals are partly allowed;
2. Judgment and award dated 18th October, 2019 passed in MVC No.2684 of 2017 by the Senior Civil Judge and JMFC, Raibag is modified holding that the claimant is entitled for compensation of Rs.34,07,502/- as against 20,79,102/- which shall carry interest at the rate of 6% per annum from the date of petition till realisation, excluding the amount
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NC: 2024:KHC-D:8765-DB MFA No. 102447 of 2022 C/W MFA No. 100019 of 2020 of Rs.3,00,000/- awarded towards purchase of artificial limb;
3. The respondent-Insurance Company shall deposit the award amount with interest within 60 days from the date of receipt of certified copy of this judgment;
4. Amount in deposit shall be transmitted to the Tribunal forthwith;
5. Draw modified award accordingly;
6. Registry to transmit the trial court records along with the copy of this judgment to the concerned court forthwith.
Sd/-
JUDGE Sd/-
JUDGE LNN List No.: 1 Sl No.: 50