Karnataka High Court

Lokeshnaika vs Sri M S Shivakumar on 7 July, 2021

Author: H.P.Sandesh

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 7TH DAY OF JULY, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.8983/2011 (MV)

BETWEEN:

LOKESHNAIKA,
S/O KRISHNANAIKA,
AGED ABOUT 40 YEARS,
OCCUPATION AT PRESENT NO WORK,
PREVIOUSLY WORKING AS BUS DRIVER,
R/O PARASHURAMPURA,
ANNAPURA POST,
DAVANAGERE TALUK & DISTRICT.                  ... APPELLANT

           (BY SRI DIVYATEJ H.N., ADVOCATE FOR
         SRI R. KOTHWAL & ASSOCIATES, ADVOCATE)

AND:

1.     SRI M.S. SHIVAKUMAR
       S/O M.D. GANGAYANAIK,
       AGED ABOUT 45 YEARS
       DRIVER OF AUTORICKSHAW
       BEARING REG.NO:KA-15-4471,
       R/O THIPPUNAGAR RIGHT SIDE,
       5TH CROSS, SHIVAMOGGA.

2.     SRI SHANKRANAIK,
       S/O TAVARYANAIK,
       AGED ABOUT 41 YEARS
       AGRICULTURIST,
       OWNER OF AUTORICKSHAW
                           2



     BEARING NO.KA-15-4471,
     R/O HOTANAKATTE,
     SHIKARIPURA TALUK,
     SHIVAMOGGA DISTRICT.

3.   THE MANAGER
     ORIENTAL INSURANCE COMPANY LIMITED,
     1ST FLOOR, THILUVALLI COMPLEX,
     P.B.ROAD, DAVANAGERE.

4.   SRI P.RAMESH,
     S/O PARAMESHWARAPPA,
     AGD ABOUT 31 YEARS,
     DRIVER-CUM-OWNER OF VEHICLE
     BEARING REG.NO.KA-15-4613,
     RESIDENT OF JAKKANAHALLI VILLAGE,
     SHIKARIPURA TALUK,
     SHIVAMOGGA DISTRICT.

5.   THE MANAGER,
     ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
     MANGALORE.
     (AMENDED VIDE Court ORDER DATED 07.07.2021)
                                       ... RESPONDENTS

         [BY SRI K.K. VASANTH, ADVOCATE FOR R3;
 SRI B.C. SHIVANNE GOWDA, ADVOCATE FOR R-5 (THROUGH
                           VC);
       NOTICE TO R1, R2 AND R4 IS DISPENSED WITH]

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.11.2010
PASSED IN MVC.NO.27/2008 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE (SR.DN.) AND MACT-IV AT DAVANAGERE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

    THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                       3



                             JUDGMENT

This appeal is filed challenging the judgment and award

dated 26.11.2010, passed in M.V.C.No.27/2008 on the file of the

Principal Civil Judge (Senior Judge) and MACT IV at Davanagere

('the Tribunal' for short) questioning the quantum of

compensation.

2. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

3. The factual matrix of the case is that the claimant

before the Tribunal contended he met with an accident on

09.08.2007, when he was proceeding in an auto rickshaw, the

driver of the vehicle bearing registration No.KA-15-4613 came in

a rash and negligent manner and caused the accident. As a

result, he sustained injuries. It is the contention of the claimant

before the Tribunal that he was earning Rs.10,000/- per month

and working as a private bus driver and due to the accidental

injuries, he suffered permanent disability. In order to

substantiate his contention, he examined himself as P.W.1 and

also examined the doctor as P.W.2. The respondents have also

examined two witnesses R.W.1 and R.W.2. The claimant got

marked the documents at Exs.P1 to P55. The respondents have

got marked the documents at Exs.R1 and R2. The Tribunal after

considering both oral and documentary evidence, allowed the

claim petition by granting compensation of Rs.3,18,000/- with

interest at the rate of 6% per annum from the date of petition till

realization and directed respondent Nos.3 and 5 insurers of both

vehicles to deposit the compensation amount to the extent of

50% each. Being aggrieved by the said judgment and award,

the present appeal is filed by the claimant seeking for an

enhancement.

4. Learned counsel appearing for the appellant would

vehemently contend that the Tribunal committed an error in

taking the income of the claimant at Rs.3,000/- per month and

also erroneously committed an error in deducting 1/3rd towards

his personal expenses. The Tribunal also not awarded any

compensation on the heads of 'loss of earning during the laid up

period', 'pain and sufferings' and considered only the future loss

of income. Learned counsel also would vehemently contend that

the Tribunal failed to award the compensation on the head of

future medical expenses. Hence, it requires interference of this

Court.

5. Per contra, learned counsel appearing for the

respondents would submit that the Tribunal assessed the

disability at 80% considering the fact that he was also an HIV

patient and taken the income at Rs.3,000/- per month in the

absence of any documentary proof with regard to his income.

Hence, it does not require any interference of this Court.

6. Having heard the learned counsel for the appellant

and also the learned counsel for respondent Nos.3 and

respondent No.5, the points that would arise for the

consideration of this Court are:-

1. Whether the Tribunal has committed an error in not awarding the just and reasonable compensation and whether it requires interference of this Court ?

2. What Order?

Points No.1 and 2:-

7. Having perused the evidence of PW.1 and PW.2, who

is the treated doctor of the claimant at C.G.Hospital, Davanagere

from 7.9.2007 to 16.10.2007. It is not in dispute that the right

leg of the claimant was amputated. PW.2 deposed in his

evidence that the right thighs and right ankle knee of the

claimant was amputated and opined that PW.1 suffered 80%

disability to his right lower limb. He also issued the disability

certificate as per Ex.P7 and identified his signature at Ex.P7(a).

In the cross-examination of PW.2, he categorically admits that

PW.1 has not obtained any follow up treatment from 16.10.2007

onwards. However, he categorically admits that Ex.P7 was

issued in the year 2009. It is suggested that in order to help the

claimant, he has assessed the disability at 80% and the said

suggestion was denied. The Tribunal also discussed at para

No.14 with regard to the fact that he was also an HIV Positive

patient and he sustained crush injuries, which will not heal up

easily. It is not in dispute that the right leg of the claimant was

amputated.

8. The Tribunal, taking note of the evidence of PW.1,

though the accidental injuries caused 100% functional disability

to the claimant, restricted the disability to the extent of 80%.

The Tribunal, taking into consideration of the fact that the

claimant was an HIV patient, has erroneously assessed the

income at Rs.2,000/- per month after deducting 1/3rd of his

income towards personal expenses in case of injury though not a

case of death and calculated the loss of income at Rs.3,60,000/-

and out of the said compensation, 80% of the amount to the

tune of Rs.2,88,000/- is awarded as compensation. The accident

is of the year 2007. In the absence of any documentary proof

with regard to the income of the claimant, the Court has to

consider the notional income at Rs.4,000/- per month. Thus, the

Tribunal erred in taking the income of the claimant at Rs.3,000/-

per month which ought to have been Rs.4,000/- per month and

further the Tribunal erred in deducting 1/3rd of his income

towards personal expenses as well as in taking the loss of future

earning only to the extent of 80%, when there was functional

disability to the extent of 100%, due to the amputation of his

right leg. Hence, it requires interference of this Court.

Taking the income of the claimant at Rs.4,000/- per month

and by applying the relevant multiplier as 15, the loss of future

earning is recalculated as under:-

Rs.4,000x12x15=Rs.7,20,000/-.

9. The Tribunal awarded an amount of Rs.30,000/-

towards medical expenses. It is the contention of the learned

counsel for the claimant that no compensation is awarded on the

head of future medical expenses. In order to substantiate the

fact that the claimant is in need of future treatment, no material

is placed before the Court. PW.2 categorically admits in the

cross-examination that after discharge of the claimant from the

hospital, he has not taken any follow up treatment with PW.2. It

is also not in dispute that the right leg of the claimant was

amputated but there is no substantial material to show that after

the amputation, he is in need of further treatment. Hence, the

contention of the appellant's counsel that the Tribunal has not

awarded any compensation on the head of 'future medical

expenses' cannot be accepted. However taking into note of the

factual aspects of the case that he was an inpatient for a period

of 63 days and also his right leg was amputated, the Tribunal

ought to have taken the loss of income for the period of 5

months. Hence, an amount of Rs.20,000/- is awarded on the

head of 'loss of income during the laid up period'. To meet the

ends of justice, the Tribunal also failed to award any

compensation on the head of 'other incidental expenses' when

he was inpatient for a period of 63 days and the accident has

taken place in the year 2007. Hence, it is appropriate to award

an amount of Rs.35,000/- on the head of 'other incidental

expenses'. The Tribunal also failed to award any compensation

on the head of 'loss of amenities' and erred in not coming to the

conclusion that the claimant has suffered 100% functional

disability. Hence, it is appropriate to award an amount of

Rs.75,000/- on the head of 'loss of amenities'. Accordingly, the

claimant is entitled for the compensation of Rs.8,80,000/- as

against Rs.3,18,000/-.

10. In view of the discussion made above, I pass the

following:-

ORDER

(i) The appeal is allowed in part.

(ii) The judgment and award passed by the Tribunal is modified by granting compensation of Rs.8,80,000/- with interest at the rate of 6% per annum from the date of petition till realization.