Sri Neela Kantesh @ Anil Kumar vs B Chandra Shekar
2021 Latest Caselaw 2062 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 1ST DAY OF JUNE, 2021

                          BEFORE

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

                  M.F.A.NO.4465/2013 (MV)

BETWEEN:

SRI NEELA KANTESH @ ANIL KUMAR,
S/O M.K.T. LINGAM,
AGED ABOUT 39 YEARS,
NEAR S V R KALYANA MANTAPA,
BENGALURU TOWN (TQ),
KOLAR DISTRICT-563101.                        ... APPELLANT

            (BY SRI N.M. PRUTHVIRAJ, ADVOCATE)

AND:

1.     B.CHANDRA SHEKAR,
       S/O BASAPPA,
       NO.40. J.C.LAYOUT,
       RAJARAJESHWARI TEMPLE STREET,
       DEVA SANDRA, K.R.PURAM,
       BENGALURU-67.

2.     THE NEW INDIA ASSURANCE CO. LTD.,
       NO.67/1, 1ST FLOOR, REDDY COMPLEX,
       WHITE FIELD ROAD, MAHADEVAPURA,
       BENGALURU-48.                      ... RESPONDENTS

         (BY SRI A.M. VENKATESH, ADVOCATE FOR R-2;
        NOTICE TO R-1 IS DISPENSED WITH VIDE ORDER
                      DATED 09.08.2016)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 08.01.2013
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PASSED IN MVC.NO.3420/2004 ON THE FILE OF THE 14TH
ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION    AND    SEEKING  ENHANCEMENT    OF
COMPENSATION.

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

                           JUDGMENT

Though this matter is listed for admission today, with the

consent of both the learned counsel it is taken up for final

disposal.

2. This appeal is filed challenging the judgment and

award dated 08.01.2013 passed in M.V.C.No.3420/2004 on the

file of XIV Additional Judge and MACT, Bengaluru (SCCH-10)

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

compensation.

3. The parties are referred to as per their original

rankings before the Tribunal to avoid the confusion and for the

convenience of the Court.

4. The factual matrix of the case is that on 09.08.2003

at about 10.30 p.m. Bangalore side Malur Zigzag, when the

petitioner was coming near Malur Zigzag on Kawasaki Caliber

(engine No.DDMBKB 25865 and Chassis No.DDFBKB 29403)

vehicle, at that time one heavy goods vehicle bearing

registration No.KA-16-3339 owned by respondent No.1 and

insured with respondent No.2 was driven by its driver in a rash

and negligent manner and as a result the petitioner had

sustained grievous multiple injuries and he was an inpatient for a

period of 197 days and he was subjected to several surgeries.

The petitioner was earning Rs.8,000/- per month and due to the

accident, he is unable to do the work, which he was doing.

5. The claim petition was opposed by the Insurance

Company by filing a detailed objection statement denying the

income and nature of injuries sustained and contended that the

liability is subject to the terms and conditions of the policy. The

claimant in support of his claim examined himself as P.W.1 and

examined two doctors as P.W.2 and P.W.3 and got marked the

documents at Exs.P.1 to 18. On the other hand, the

respondents did not lead any evidence but got marked the

documents at Exs.R.1 and 2. The Tribunal after considering

both oral and documentary evidence placed on record,

particularly the evidence of P.W.2 and P.W.3 doctors, assessed

the disability of 30% as against the permanent disability of 40%

to whole body as deposed by P.W.2 and P.W.3. The Tribunal

took the income of Rs.4,000/- per month and awarded the

compensation of Rs.9,19,800/-. Hence, the present appeal is

filed before this Court.

6. The learned counsel for the appellant in the appeal

would vehemently contend that the Tribunal has committed an

error in not awarded just and reasonable compensation under

the head conveyance and nourishment, loss of amenities and

future discomfort and loss of earning during the laid up period.

The Tribunal failed to take note of the fact that the petitioner

was an inpatient for a period of 197 days. The learned counsel

would contend that the disability considered by the Tribunal to

the extent of 30% is erroneous and the same is against the

medical evidence. The learned counsel would contend that the

future medical expenses deposed by the doctor is to the tune of

Rs.10,00,000/-, but the Tribunal has awarded only an amount of

Rs.1,50,000/- and hence it requires interference of this Court.

7. Per contra, the learned counsel for respondent No.2

would vehemently contend that the Tribunal while awarding

compensation has considered all the heads. The learned counsel

would contend that earlier the Tribunal had granted

compensation of Rs.7,44,400/- and the same was challenged in

M.F.A.No.1769/2007 along with M.F.A.No.10343/2007 and this

Court set aside the earlier award and remitted back the matter

to the Tribunal. After remitting of the matter, reasonable

compensation has been awarded to the tune of Rs.9,19,800/-

and hence it does not require any interference of this Court.

8. Having heard the arguments of the learned counsel

for the appellant and the learned counsel for respondent No.2,

the point that arise for the consideration of this Court is:

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

9. Having heard the respective learned counsel and also

on perusal of the records, particularly the nature of injuries

sustained by the claimant, he has suffered grievous injuries of

fracture of intracondylar fracture of right tibia, head injury with

frontal benecontusion, fracture of oblique head of femur right

hip portion and other injuries. It is not in dispute that in terms

of Ex.P.14 case sheet, the claimant was an inpatient for a period

of 197 days. The doctor assessed the disability of 40% to the

whole body considering the nature of injuries. However, the

Tribunal considering the material on record, has rightly awarded

an amount of Rs.1,00,000/- under the head pain and suffering.

Hence, I do not find any reason to interfere with the same.

10. The Tribunal awarded an amount of Rs.3,50,000/-

under the head medical expenses based on the documents.

Hence, I do not find any reason to interfere in respect of the

amount awarded under medical expenses.

11. It is noticed by this Court that the Tribunal has

committed an error in not awarding just and reasonable

compensation under the head conveyance and nourishment.

Taking note of the fact that the claimant was an inpatient for a

period of 197 days, an amount of Rs.60,000/- is awarded as

against Rs.20,000/- under the head conveyance and

nourishment and other incidental expenses.

12. The Tribunal has committed an error in awarding

only an amount of Rs.30,000/- under the head loss of amenities

and future discomfort when the injured was aged about 31 years

as on the date of the accident and he has to lead his rest of his

life with 40% disability. Hence, under the head loss of amenities

and future discomfort, an amount of Rs.60,000/- is awarded as

against Rs.30,000/-.

13. The Tribunal awarded an amount of Rs.25,000/-

under the head loss of earning during the period of treatment.

Having considered the fact that the claimant was an inpatient for

a period of 197 days and also considering the nature of fracture

which he has sustained, it requires minimum eight months for

uniting of the fracture and rest. Hence, the same is enhanced

to Rs.32,000/- (Rs.4,000/- x 8) under the head loss of earning

during laid up period.

14. Insofar as future earning capacity due to disability is

concerned, the Tribunal has taken Rs.4,000/- per month as loss

of income and though the document of letter is produced before

the Tribunal regarding his income, the same has not been

proved by examining the author of the said letter. Hence, the

Tribunal has rightly taken the income as Rs.4,000/- per month.

The accident is of the year 2003 and hence it does not require

any enhancement with regard to the income is concerned.

However, the Tribunal has committed an error in taking the

disability of 30% as against the evidence of doctors P.W.2 and

P.W.3, who have deposed the disability of 40% to the whole

body and the Tribunal has erroneously taken the multiplier of

'17'. When the claimant was aged about 31 years 4 months as

per Ex.R.1 driving licence as on the date of the accident, the

relevant multiplier applicable is '16'. Hence, re-visiting the

calculation under the head loss of future earning capacity due to

disability, it comes to Rs.3,07,200/- (Rs.4,000/- x 12 x 40% x

16).

15. The Tribunal awarded an amount of Rs.1,50,000/-

under the head future medical expenses. Having considered the

medical evidence of the doctor P.W.2, he says that

Rs.2,50,000/- is required for future medical expenses and the

doctor P.W.3 who has been subsequently examined says that

Rs.7,00,000/- is required and in total it comes to Rs.10,00,000/-

and it is only an estimation and no substantial evidence is placed

before the Court. However, it requires little interference of this

Court to enhance the compensation under the head future

medical expenses taking note of the nature of injuries and also

the treatment provided to the claimant and also requirement of

future treatment, hence it is enhanced to Rs.2,00,000/-.

In all, the claimant is entitled to a compensation of

Rs.11,09,200/- as against Rs.9,19,800/-.

16. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed in part.

      (ii)    The impugned judgment and award of the
              Tribunal    dated     08.01.2013      passed    in
              M.V.C.No.3420/2004        is   modified   granting

compensation of Rs.11,09,200/- as against Rs.9,19,800/- with interest at 6% per annum on Rs.10,59,200/- (minus Rs.50,000/- awarded towards future medical expenses) from the date of petition till deposit.

(iii) The respondent Insurance Company is directed to deposit the compensation amount with interest within six weeks from today.

(iv) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

Sd/-

JUDGE MD