Karnataka High Court
Nagaraja Shetty vs Ramesh Shetty on 6 July, 2021
Author: Alok Aradhe Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JULY 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
M.F.A. NO.5268 OF 2020 (MV-I)
BETWEEN:
NAGARAJ SHETTY
AGED ABOUT 42 YEARS
R/O. ALTHARU DODDAMANE
YADTHADI VILLAGE AND POST
UDUPI TALUK AND DISTRICT-576201.
SINCE APPELLANT IS NOT ABLE
TO WALK DUE TO SPINAL CORD INJURY
AND BED RIDDEN
HE IS REPRESENTED BY HIS WIFE
AND GUARDIAN SMT. KAVITHA SHETTY
W/O NAGARAJ SHETTY
AGED ABOUT 40 YEARS
R/O DYASAMANE
JAPTHI VILLAGE AND POST
KUNDAPURA TALUK
UDUPI DISTRICT-576201.
... APPELLANT
(BY SRI. PAVANA CHANDRA SHETTY H, ADV.,)
2
AND:
1. RAMESH SHETTY
S/O MANJAYYA SHETTY
R/O KAVRADI HOUSE
KENCHANOOR POST
KUNDAPURA TALUK
UDUPI DISTRICT-576201.
2. IFFCO TOKIO GENERAL
INSURANCE COMPANY LIMITED
3RD FLOOR, LALBHAG TOWERS
BALLAL BHAG, M G ROAD
MANGALORE-575003
REP BY ITS BRANCH MANAGER.
... RESPONDENTS
(BY SRI. B. PRADEEP, ADV., FOR R2
V/O DTD:4.3.2021 NOTICE TO R1 IS D/W)
---
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:30.05.2020 PASSED IN MVC
NO.33/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
ADDITIONAL MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
3
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles
Act, 1988 (hereinafter referred to as 'the Act' for short) has
been filed by the claimant seeking enhancement of the
amount of compensation, against the judgment dated
30.05.2020 passed by the Motor Accident Claims Tribunal
(hereinafter referred to as 'the Tribunal' for short) in MVC
No.33/2016.
2. Facts leading to filing of this appeal briefly stated
are that on 30.05.2013, the claimant - Nagaraj Shetty was
proceeding in a motor cycle bearing registration No.KA-20-
EB-0863. When he reached near Hunsemakki Petrol Bunk, a
car bearing registration No.KA-20-Z-3420 (hereinafter
referred to as 'the offending vehicle' for short) which was
being driven by its driver in a rash and negligent manner,
dashed against the motor cycle which the claimant was
riding. As a result of the aforesaid accident, the claimant
sustained grievous injuries and was immediately given first
aid at NR Acharya Hospital, Koteshwara and thereafter was
shifted to KMC Hospital, Manipal and later to Tejaswini
Hospital and Wenlock Hospital, Mangalore for further
treatment where the claimant was an inpatient for 300 days.
3. The claimant thereupon filed a petition under
Section 166 of the Act inter alia on the ground that the
claimant was admitted to KMC Hospital, Manipal and later to
Tejaswini Hospital and Wenlock Hospital, Mangalore for
further treatment where the claimant was an inpatient
treatment. It is also pleaded that the claimant has spent
more than Rs.5,00,000/- towards medical expenses. It was
also claimed that the claimant was earning Rs.25,000/- by
working as a cook and due to the impact of the accident, the
claimant is unable to carry on with the work as before. It was
also pleaded that the accident took place wholly on account
of the rash and negligent driving of the driver of the
offending vehicle. The claimant claimed compensation along
with interest.
4. The respondent insurance company appeared
through their counsel and a filed separate written statement,
inter alia, in which the mode and manner of the accident was
denied. It was pleaded that the accident occurred on account
of the rash and negligent riding of the motor cycle by the
claimant. The age, occupation, income and injuries sustained
by the claimant was denied. It was also pleaded that liability
of the insurance company to the compensation, if any, is
subject to the terms and conditions of the policy. It was also
pleaded that the driver of the offending vehicle at the time of
accident did not possess a valid and effective driving licence
to drive the offending vehicle. It was also stated that the
compensation claimed by the claimant is highly excessive,
speculative and exorbitant.
5. On the basis of the pleadings of the parties, the
Claims Tribunal framed the issues and thereafter recorded
the evidence. The claimant, in order to prove his case,
examined Kavitha Shetty (PW1), Satish Shetty (PW2),
Dr.Mahabalesh Shetty (PW3) and got exhibited documents
namely Ex.P1 to Ex.P168. The respondent insurance
company neither examined any witness nor adduced any
documentary evidence. The Claims Tribunal, by the
impugned judgment, inter alia, held that the accident took
place on account of rash and negligent driving of the
offending vehicle by its driver, as a result of which, the
claimant sustained injuries. The Tribunal further held that the
claimant is entitled to a compensation of Rs.18,87,873/-
along with interest at the rate of 6% p.a. Being aggrieved,
this appeal has been filed by the claimant seeking
enhancement of the amount of compensation.
6. Learned counsel for the claimant submitted that
the Tribunal has grossly erred in assessing the income of the
claimant at Rs.6,000/- per month and in any case, the same
ought to have been taken as per the guidelines framed by
the Karnataka State Legal Services Authority. It is further
submitted that the Tribunal erred in not adding future
prospects to the income of the claimant while assessing the
compensation under the head 'Loss of Future Earning
Capacity' in view of the decision of the Supreme Court in
'PAPPU DEO YADAV Vs. NARESH KUMAR AND ORS' AIR
2020 SC 4424. It is also submitted that the claimant is a
paraplegic and requires the care of an attendant for the rest
of his life and that the amount of compensation awarded
under the head 'Attendant Charges' is on the lower side. It is
urged that the amount of compensation awarded under all
the other heads are on the lower side and deserve to be
enhanced suitably. On the other hand, learned counsel for
the insurance company submitted that no evidence has been
adduced by the claimants to prove the income of the
claimant before the Tribunal and that the Tribunal has rightly
taken the income of the deceased notionally at Rs.6,000/-
per month. It is submitted that the Tribunal erred in
awarding compensation under the head 'Loss of expectancy
of life' when compensation for the same had already been
awarded under the head 'Loss of amenities'. It is further
submitted that the amount of compensation awarded by the
Tribunal under all the heads is just and proper and does not
call for any interference.
7. We have considered the submissions made by
learned counsel for the parties and have perused the record.
It is not in dispute that the claimant sustained injuries in the
accident which occurred due to the rash and negligent driving
of the offending vehicle by its driver. The only question which
arises for our consideration in this appeal is with regard to
the quantum of compensation. Admittedly, the claimant has
not produced any evidence with regard to his income.
Therefore, the notional income of the claimant is to be
assessed as per the guidelines issued by the Karnataka Legal
Services Authority. Since the accident is of the year 2013,
the notional income of the claimant is assessed at Rs.8,000/-
per month. The Tribunal on the basis of the evidence of
record has assessed the disability of the claimant at 100% to
the whole body as he is suffering from paraplegia due to the
injury to the dorsal spine. The claimant is entitled to addition
of future prospects to the tune of 25% in view of the decision
of the Supreme Court in 'PAPPU DEO YADAV Vs. NARESH
KUMAR AND ORS' AIR 2020 SC 4424 as the claimant was
more than 40 years of age and was self employed. Therefore,
the income of the claimant after addition of future prospects
comes to Rs.10,000/- per month. Thus, the claimant is
entitled to Rs.16,80,000/- (Rs.10,000 x 12x 14) under the
head 'loss of earning capacity'.
8. Ex.P4 Wound Certificate discloses that the claimant
has sustained the following injuries:
1. 4x3x2 cm laceration over left side of upper lip
2. Multiple superficial abrasions over both cheeks.
3. 2x1x1 cms laceration over the left occipital region
4. Dorsal spine D6, D7, D8 fracture with paraplegia
5. Fracture of right distal radius.
Out of the aforesaid injuries injury No.(4) and (5) are
grievous in nature. Ex.P11 and Ex.P12 Discharge summaries
disclose that the claimant has sustained dorsal spine D6, D7,
D8 fracture with paraplegia. He had remained inpatient from
30.05.2013 to 24.06.2013, 06.11.2013 to 12.11.2013 and
from 20.12.2013 to 26.12.2013 for a period of 300 days.
PW3 Dr.Mahabalesh Shetty in his evidence has assessed the
disability of the claimant at 100% to the whole body as the
claimant suffers from paraplegia and has sustained loss of
sensation below the level of thoracic verterbra 7 with loss of
bowel bladder control. PW1 Kavitha Shetty has also stated in
her evidence the claimant is bed ridden and that he requires
the services of an attendant for his care. Therefore, it is clear
that the claimant would require the services of an attendant
for the rest of his life. When compensation is paid in lump
sum, the Tribunal has to follow the multiplier system as it is
used to balance out various factors. This system need not
only be limited to the computation of loss of dependency or
loss of future earnings. It can also be applied in respect of
Attendant Charges also. [SEE: KAJAL VSD JAIDISH
CHAND 2020 SCC ONLINE SC 127]. Therefore, we deem
it appropriate to adopt the system of multiplier to award the
compensation under the head 'Attendant Charges' as the
claimant would require the care of an attendant for the rest
of his life. The claimant is held entitled to 'Attendant Charges'
at the rate of Rs.100 per day which is quantified at
Rs.5,04,000/- (Rs.100x 30 x12x 14). Rs.1,00,000/- under
the head 'Nourishment and conveyance charges' by the
Tribunal is maintained in view of the fact that the claimant
remained inpatient from 30.05.2013 to 24.06.2013,
06.11.2013 to 12.11.2013 and from 20.12.2013 to
26.12.2013 and is required to travel for his follow up
treatment.
9. The Tribunal has awarded compensation under the
head 'loss of amenities' as well as 'loss of expectancy of life'
and the same amounts to an overlap as such loss of
expectancy of life has already been compensated under the
head 'Loss of amenities'. Therefore, the compensation under
the head 'Loss of expenctency of life' is set aside. The
claimant who is aged about 43 years, has lost sensation in
both his lower limbs. The Tribunal has awarded
Rs.1,00,000/- towards loss of amenities which is on the lower
side and the same is enhanced to Rs.1,80,000/-. The
claimant is also held entitled to Rs.1,50,000/- under the head
'Pain and suffering' having regard to the fact that the
claimant was an inpatient for a period of 300 days and has
sustained dorsal spine fracture with paraplegia. The amount
of compensation awarded under the other heads is
maintained as the same are just and reasonable. Thus, the
claimant is held entitled to the following compensation:
Sl. Compensation under different Amount in
No. heads Rs.
1. Pain and suffering Rs.1,50,000/-
2. Nourishment and Conveyance Rs.1,00,000/-
charges
3. Loss of Future earning capacity Rs.16,80,000/-
4. Medical Expenses Rs.2,79,873/-
5. Loss of amenities Rs.1,80,000/-
6. Attendant Charges Rs.5,04,000/-
Total Rs.28,93,873/-
Thus, the claimant is held entitled to a total
compensation of Rs.28,93,873/-. Needless to state that the
enhanced amount of compensation viz., Rs.10,06,000/- shall
carry interest at the rate of 6% per annum from the date of
filing of the petition till the date of realization of the amount.
To the aforesaid extent, the judgment of the claims Tribunal
in MVC No.33/2016 is modified.
Accordingly, the appeal is partly allowed.
Sd/-
JUDGE
Sd/-
JUDGE
ss
