Sri. Divakar.J vs Mr. Guruprasad Dinakar
2021 Latest Caselaw 2709 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 8TH DAY OF JULY 2021

                             PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                              AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

               M.F.A. NO.1124 OF 2020 (MV-I)
BETWEEN:

SRI. DIVAKAR .J
AGED ABOUT 34 YEARS
SON OF JAYARAM REDDY
RESIDING AT NO.92/1
MADIWALA KYASAMBALLI
KOLAR DISTRICT.
                                               ... APPELLANT
(BY SRI. GOPAL L.T. ADV.,)

AND:

1.    MR. GURUPRASAD DINAKAR
      S/O SRI B V DINAKAR, MAJOR
      RESIDING AT NO.217/A BALAJI ROAD
      2ND BLOCK, THYAGARAJANAGAR
      BENGALURU-560 028
      (R.C. OWNER OF THE CAR
      BEARING REG NO.KA-05-MR-5871).

2.    ICICI LOMBARD GENERAL INSURANCE
      CO., LTD.,
      NO.121, THE ESTATE, 9TH FLOOR
      DIKENSON ROAD, M G ROAD
      BENGALURU-560 001
      (INSURER OF THE CAR BEARING
      REG NO.KA-05-MR-5871).
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                                                     ... RESPONDENTS
(BY SRI. H.N. KESHAV, ADV., FOR R1
    SRI. PRASHANTH, ADV., FOR R2)
                             ---

     THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DT.23.08.2019 PASSED IN MVC
NO.1620/18 ON THE FILE OF THE VI ADDITIONAL AND ACMM,
COURT OF SMALL CAUSES, BENGALURU (SCCH-2), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS M.F.A. COMING ON FOR FINAL HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:


                              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

23.08.2019 passed by the Motor Accident Claims Tribunal

(hereinafter referred to as 'the Tribunal' for short) in

M.V.C.No.1620/2018 .

2. Facts leading to filing of this appeal briefly stated

are that on 28.10.2017, the claimant - Divakar J was

proceeding in a car bearing Registration No. KA-05-MR-5871

(hereinafter referred to as 'the offending vehicle' for short)

near Sadali Cross, Chikkaballapura. At that time, the

aforesaid car which was being driven by its driver in a rash

and negligent manner, dashed against another car bearing

Registration No.MH-46-W-1668. As a result of the aforesaid

accident, the claimant sustained grievous injuries and was

immediately given first aid at Hosmat Hospital for treatment

where the claimant was an inpatient from 28.10.2017 to

13.11.2017.

3. The claimant thereupon filed a petition under

Section 166 of the Act inter alia on the ground that the

claimant was admitted to Hosmat Hospital where he took

treatment as inpatient for 17 days from 28.10.2017 to

13.11.2017. It is also pleaded that the claimant has spent

huge sums towards medical expenses. It was also claimed

that the claimant was earning Rs.44,785/- from working as a

Senior Analyst at DROI Global Services Pvt Ltd. 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 on account of the rash and negligent

driving of the driver of the offending vehicle. The claimant

claimed compensation to the tune of Rs.60,00,000/- along

with interest.

4. The respondent insurance company appeared

through its counsel and filed separate written statement,

inter alia, in which the mode and manner of the accident was

denied. It was pleaded that the accident occurred due to the

sudden and negligent application of brakes by the driver of

the car bearing Registration No.MH-46-W-1668 and not due

to the negligence of the driver of the offending vehicle. The

age, occupation, income and injuries sustained by the

claimant was denied. It was also pleaded that liability of the

insurance company to pay the compensation, if any, is

subject to the terms and conditions of the policy. 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 himself as PW-1, Dr.Krishna Prasad (PW2) and got

exhibited documents namely Ex.P1 to Ex.P18. The

respondent insurance company neither adduced any oral

evidence nor 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.4,90,000/- along

with interest at the rate of 9% 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 erred in not awarding compensation under the head

'Loss of Earning Capacity' when Dr. Krishna Prasad (PW2)

has assessed the disability of the claimant at 44% to the

whole body. It is further submitted that the Tribunal erred in

not awarding any compensation towards 'Loss of income

during laid up period'. It is also submitted that the claimant

has sustained multiple fractures and has undergone surgery

for amputation of left leg. It is urged that amount of

compensation awarded by the Tribunal under 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 the Tribunal upon has upon

meticulous appreciation of the entire evidence on record has

awarded the compensation. It is further submitted that the

Tribunal rightly not awarded any compensation under the

head 'Loss of Future Income' as the claimant has continued

in his previous employment and has not sustained any loss of

future income. It is also submitted that the amount of

compensation awarded by the Tribunal is just and reasonable

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 has sustained injuries in

the accident which occurred on account of the rash and

negligent driving of the driver of the offending vehicle. The

only issue which arises for our consideration in this appeal is

with regard to the quantum of compensation. Admittedly, the

claimant continues to be employed with Jois Bank as a Senior

Analyst and is drawing a salary of Rs.44,000/- per month as

on 17.11.2018. The claimant has not sustained any loss of

earnings on account of his disability. The Tribunal is justified

in not awarding any compensation under the head 'Loss of

Earning Capacity' as the claimant has not sustained any loss

of earning due to disability. Similarly, the claimant in his

cross examination has admitted that he had availed paid

leave from his employer from 28.10.2017 to 01.04.2018 for

his recuperation and therefore, the Tribunal has rightly not

awarded any compensation under the head 'Loss of income

during laid up period'.

8. Perusal of the Ex.P6 Wound Certificate discloses that

the claimant has sustained the following injuries:

1. Femur shaft T condyle fracture open

2. Lower limb vascular injury

3. Tibia shaft fracture.

All the aforesaid injuries are grievous in nature.

Dr.Krishna Prasad (PW2) in his evidence has stated that the

claimant has undergone three sugeries namely amputation of

right limb above the knee, right leg interlocking nailing and

wound debridement left amputation stump. The aforesaid

witness has further stated that the claimant continues to

suffer from pain as well as stiffness in the left limb due to

usage of the prosthesis limb along with numbness and

phantom sensation in the stump which has been fixed. The

aforesaid witness has assessed the permanent physical

disability of the claimant at 44% to the whole body and

functional disability at 50%. The claimant has remained an

inpatient for 17 days. Therefore, in view of the injuries

sustained by the claimant and surgical procedures undergone

by him, the claimant is held entitled to Rs.80,000/- under the

head 'Nourishment, Conveyance and Attendant Charges' and

to Rs.1,40,000/- under the head 'Pain and Suffering'.

9. The Tribunal has awarded Rs.2,00,000/- under the

head 'Future Medical Expenses' for purchase of prosthetic

limb. The claimant has adduced some documentary evidence,

however, the author of the document has not been examined

to prove its contents. There is no doubt that the claimant has

to purchase a prosthetic limb and has to pay for its upkeep

through out his life. Considering the same, the amount of

compensation awarded by the Tribunal is on the lower side

and the same is enhance by Rs.50,000/-. The claimant's

lower limb has been amputated above the knee which has

caused difficulty to the claimant in carrying on and enjoying

the activities of his daily life. The amount of compensation

awarded by the Tribunal is on the lower side considering the

injuries sustained by the claimant. Therefore, the claimant is

held entitled to Rs.2,00,000/- under the head 'Loss of

Amenities (including loss of marriage prospects and loss due

to permanent disability)'. Thus, the claimant is held entitled

to a total compensation of Rs.6,70,000/-. Needless to state

that the enhanced amount of compensation viz.

Rs.1,80,000/- shall carry interest at the rate of 6% per

annum from the date of filing of the petition till the payment

is made. To the aforesaid extent, the judgment of the

Tribunal in M.V.C.No.1620/2018 is modified.

Accordingly, the appeal is partly allowed.

Sd/-

JUDGE

Sd/-

JUDGE ss