Karnataka High Court
Karithimmegowda vs Sri G R Raju on 11 January, 2021
Author: Alok Aradhe Rangaswamy
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.8744 OF 2017 (MV-I)
BETWEEN:
KARITHIMMEGOWDA
S/O MUNIYAPPA,
AGED ABOUT 53 YEARS,
HEBBATHANAHALLI VILLAGE,
MALLASANDRA POST,
KASABA HOBLI,
TUMKUR TALUK
...APPELLANT
(BY SRI. RAJU.S., ADVOCATE)
AND:
1. SRI. G.R. RAJU
S/O RAMAKRISHNA G.N.,
AGED ABOUT 48 YEARS,
BHALAJI NILAYA,
1ST CROSS, ASHOKA NAGAR,
TUMAKURU CITY-560050.
2. THE MANAGER
SHRIRAM GENERAL INSURANCE CO. LTD.,
NO.5/4, 3RD FLOOR,
S.V.ARCADE,
BILAKAHALLI MAIN ROAD,
2
OPP. B.G.ROAD, IIM POST,
BANGALORE-560076.
BRANCH OFFICE: SHIRANI ROAD,
TUMKUR.
...RESPONDENTS
(NOTICE TO RESPONDENT NO.1 IS SERVED;
SRI. H.N.KESHAVA PRASHANTH, ADVOCATE FOR RESPONDENT
NO.2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED 24.06.2017, PASSED IN
MVC NO.406/2016, ON THE FILE OF THE II ADDITIONAL
DISTRICT JUDGE AND MACT, TUMAKURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
NATARAJ RANGASWAMY, J., DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal filed by the claimant seeking
enhancement of the compensation awarded by the
II Additional District Judge and MACT., at Tumakuru
(henceforth referred to as 'Tribunal') in MVC No.406/2016
in terms of the Judgment and Award dated 24.06.2017.
2. Though this appeal is listed for admission, the
same is taken up for final disposal with the consent of the
learned counsel for the parties.
3. The claim petition discloses that on
20.11.2015, the claimant was walking back to his house
after completing his work. At about 7.30 pm., when he
was walking near Vinayaka Petrol Bunk on service road of
National Highway No.58/National Highway No.4, service
road, a lorry bearing registration No.KA-51-A-1398
(henceforth referred to as 'offending lorry') dashed against
the claimant while reversing the vehicle. As a result, the
claimant sustained injuries and was shifted to Aditya
Orthopedic and Trauma Centre, where he was admitted as
an inpatient and underwent surgery and incurred medical
expenses of Rs.5,00,000/-. He claimed that he was
working as a owner-cum-driver of the lorry bearing
registration No.AP-24-TA-5455 and was earning
Rs.1,00,000/- per month and was maintaining his family.
He contended that based on a complaint lodged against
the driver of the offending vehicle, the jurisdictional police
have registered Crime No.287/2015 against the driver of
the vehicle. Hence, he filed a claim petition under Section
166 of the Motor Vehicles Act claiming compensation of a
sum of Rs.50,00,000/- from the owner and driver of the
offending vehicle.
4. The owner of the offending vehicle filed
statement of objections denying the manner in which the
accident occurred as described by the claimant. It
contended that the accident was due to the negligence on
the part of the claimant himself. However, it contended
that the offending vehicle was insured by the insurer and
that the policy of insurance was in force as on the date of
the accident. In so far as the insurer is concerned, it also
contested the claim petition and contended that the
claimant was sitting just beside the door in a moving lorry
bearing registration No.AP-24-TA-5455 and he fell down
when the driver of the said lorry tried to over take the
offending lorry from the wrong side and without observing
the vehicles moving on the road. Therefore, the insurer
contended that the accident was solely due to the
negligence on the part of the claimant himself. It
contended that the driver of the offending lorry did not
possess a valid driving licence and that the owner had
violated the terms and conditions of the policy. It also
contended that the vehicle did not possess a valid permit
as on the date of accident and thus, sought to exonerate it
from any liability.
5. The claimant was examined as PW1 and he
examined PW2 who was a doctor who treated the claimant
and he marked the documents as Exs.P1 to P22. In order
to rebut the contentions putforth by the claimant, the
insurer examined its official as RW1 and marked the
documents Exs.R1 and R2.
6. The Tribunal after noticing the documents
placed on record in the form of police complaint and the
documents prepared by the police in discharge of their
official duties held that the driver of the offending vehicle
was negligent and was responsible for the accident.
7. In so far as the injuries sustained by the
claimant is concerned, it noticed from Ex.P6-wound
certificate that the claimant had suffered a degloving injury
on the 1/3rd leg to the toe. It also noticed the evidence of
PW2 that the wound was infected and on 27.11.2015, he
underwent an amputation below the knee and was
discharged on 25.12.2015. He claimed that on
17.02.2016, he was re-admitted for skin grafting and
discharged on 23.02.2016. He claimed that since he was a
driver, the amputation had resulted in permanent partial
disability of 100% to the left leg. The Tribunal noticed the
evidence of PW2 who deposed that the claimant had
suffered disability to the extent of 33% to the whole body.
The Tribunal therefore, assessed the disability of the
claimant at 33% to the whole body. In so far as the
compensation payable to the claimant is concerned,
though the claimant contended that he was earning
Rs.1,00,000/- per month, but yet, the Income Tax Returns
filed by the claimant for the Assessment Year 2015-16
indicated an annual income of Rs.2,18,510/- and for the
Assessment Year 2015-16, his income was declared as
Rs.3,00,820/-. The Tribunal noticed that the Income Tax
Returns were filed subsequent to the date of the accident.
The Tribunal however, held that the returns of income was
filed within the time prescribed by the Income Tax
Department and therefore, held that the income as
declared by the claimant for the year 2014-15 at
Rs.2,18,510/- could be considered as the annual income of
the claimant. Hence, the Tribunal awarded the following
compensation:
Heads under which Amount in
compensation awarded Rupees
Pain and suffering 50,000
Medical expenses 3,08,268
Food and nourishment 20,000
Transportation charges 20,000
Loss of amenities in life 50,000
Loss of future income 9,37,407
Attendant charges 9,000
Loss of income during laid up period 54,627
Towards artificial limb 50,000
Total 14,99,302
8. The claimant aggrieved by the quantum of
compensation awarded by the Tribunal has filed this
appeal and contend that the Tribunal ought to have
considered the disability of the claimant at 100%, having
regard to the avocation of the claimant. He contended
that the claimant was a driver who was driving his own
lorry and that as a result of the accident, he could not
henceforth drive the lorry. The learned counsel relied on
the following Judgment in support of his contention that
the disability was to the extent of 100%.
Judgments of the Apex Court:
(a) K.Janardhan Vs. United India Insurance
Co.Ltd., and Anr. reported in AIR 2008 SC
2384.
(b) V.Mekala Vs. M.Malathi and Another
reported in (2014) 11 SCC 178.
Judgments of the High Court of Karnataka:
(c) Salman B.K. Vs. Githa Bhat and another in
M.F.A.No.3595/2013(MV-I), dated:20.08.2019.
(d) Gurumurthy Vs. H.R.Sathish and another in
M.F.A.No.262/2016 (MV) dated:09.11.2017.
9. The learned counsel also contended that he
has to now wear a prosthetic limb and that the Tribunal
failed to award the compensation towards the cost of the
prosthetic limb. In addition, the learned counsel
contended that the claimant had suffered immense loss of
amenities by the amputation of his left leg. He therefore,
contended that compensation awarded towards the 'loss of
amenities' and 'pain and suffering' had to be reconsidered.
10. Per contra, the learned counsel for the insurer
contended that the compensation awarded by the Tribunal
is just and proper and prays that the disability suffered by
the claimant and as assessed by the Tribunal be upheld.
11. We have given our anxious consideration to
the arguments advanced by the learned counsel for the
parties and we have perused the records of the Tribunal as
well as its Judgment and Award.
12. It is seen from Ex.P12 that the claimant is the
owner of a lorry bearing registration No.AP-24-TA-5455. It
is also relevant to note that the income tax returns that
were filed by the claimant were subsequent to the date of
the accident. As held by the Apex Court in the case of
V.Subbulakshmi and others Vs. S.Lakshmi and
another reported in (2008) 4 SCC 224, if the income tax
returns were filed subsequent to the date of the accident,
some amount of exaggeration cannot be ruled out, at the
instance of the claimant and therefore, cannot form the
basis to assess the income of the claimant. However,
since there is evidence on record to indicate that the
claimant was the owner of a lorry, it is quite natural that
the claimant must have had some income which is higher
than what is prescribed in the Lok Adalath Chart. It is
found from Ex.P14 that the claimant had raised a loan
from M/s.India Infoline Finance Limited and was required
to pay a monthly EMI of Rs.26,444/-. Ex.P14 which is the
Bank extract of the claimant at State Bank of India,
Mysuru indicates that the claimant had transacted in cash.
Thus, the claim of the claimant that he was earning
substantial income from the lorry that he owned cannot be
disbelieved. Though the income tax returns filed by the
claimant for the Assessment Year 2014-15 that his income
was Rs.2,18,510/- and Rs.3,00,820/- for the Assessment
Year 2015-16 are subsequent to the date of the accident,
the same cannot be disbelieved in the facts and
circumstances of the case. Therefore, the income of the
claimant could be determined at a sum of Rs.25,000/- per
month.
13. It is seen that the claimant possessed a driving
licence to drive the transport vehicle. Thus, the contention
of the claimant that he was earning his livelihood as a
driver cannot be disbelieved. Since, the left leg below the
knee of the claimant was amputated, the injury had
definitely caused 100% functional disability as the claimant
cannot now drive any transport vehicle including the one
owned by him. As rightly contended by the insurer, the
claimant could still earn his income by engaging a driver
and therefore, the functional disability cannot be assessed
at 100%. As regards the functional disability though the
claimant cannot now be a driver, yet, it is not as if the
claimant cannot indulge in any other avocation and earn
his livelihood. Therefore, the functional disability could be
assessed at 80%. Since, the functional disability of the
claimant is assessed at 80%, the question of granting
substantial compensation towards 'loss of amenities' would
not arise. In view of the fact that the claimant was aged
50 years as on the date of the accident, the claimant
would be entitled to compensation. In view of the above,
the compensation awarded by the Tribunal is to be
re-considered and re-calculated which is as follows:
Heads under which Amount in
compensation awarded Rupees
Loss of income due to disability 31,20,000
(Rs.25,000/-x12x13x80/100)
Pain and suffering 50,000
Medical expenses 3,08,268
Food and nourishment charges 50,000
Transportation charges 20,000
Loss of amenities in life 25,000
Attendant charges 10,000
Cost of prosthetic limb 50,000
Total 36,33,268
14. The appeal filed by the claimant is allowed in
part and the Judgment and Award in MVC No.406/216 is
modified and the compensation of Rs.14,99,302/- awarded
by the Tribunal is enhanced by a sum of Rs.21,33,966
payable by the insurer along with interest at the rate of
8% per annum from the date of claim petition, till the date
of realization.
15. The insurer is directed to deposit the said
amount within a period of one month from the date of
receipt of a certified copy of this Judgment.
Sd/-
JUDGE
Sd/-
JUDGE
GH
