S M Shanthakumar vs Ravikumar
2021 Latest Caselaw 2083 Kant

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 2ND DAY OF JUNE 2021

                       PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                         AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

            M.F.A. NO.2232 OF 2019 (MV-I)
BETWEEN:

S.M. SHANTHAKUMAR
S/O S. MAHESHWARAPPA
AGED ABOUT 47 YEARS,
R/O MADHUKESWARA NILAYA,
5TH CROSS, VINAYAKA NAGAR,
SHIVAMOGGA-577 201,
ALSO R/O RMR ROAD, PARK EXTENSION,
SHIVAMOGGA-577 201.
                                        ... APPELLANT
(BY SRI PRASAD B.S., ADVOCATE)

AND:

1.     RAVIKUMAR
       S/O ESWARA NAIK,
       AGED ABOUT 42 YEARS,
       R/O KENGATTE VILLAGE,
       KADADAKATTE POST-577 217,
       HONNALI TALUK,
       DAVANAGERE DISTRICT.

2.     G.B. LALITHAMMA
       W/O BASAVA GOWDA K.,
       AGED ABOUT 51 YEARS,
                               2



     R/O SRI BOMMALINGESWARA NILAYA,
     BESIDES VIVEKANANDA SCHOOL,
     SAVALANGA ROAD,
     SHIVAMOGGA -577 201.

3.   THE DIVISIONAL MANAGER
     THE ORIENTAL INSURANCE COMPANY LIMITED,
     1ST CROSS, GARDEN AREA,
     SHIVAMOGGA-577 201.
                                   ... RESPONDENTS

(R-1, R-2 AND R-3 ARE SERVED)

                            ---

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
28.12.2018 PASSED IN MVC NO.842/2017 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL
MACT-VI, SHIVAMOGGA, ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THIS M.F.A. COMING ON FOR HEARING, THIS DAY,
HEMANT    CHANDANGOUDAR      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) is

filed by the claimant seeking enhancement of the amount of

compensation, against the judgment dated 28.12.2018 in

MVC No.842/2017 passed by the Principal Senior Civil Judge

and Addl. Motor Accident Claims Tribunal - VI at Shivamogga

(hereinafter referred to as 'the MACT' for short).

2. Facts leading to filing of this appeal briefly stated

are that on 15.07.2017 at about 2.45 p.m., the claimant -

S M Shanthakumar when he was standing in the bus stand

opposite to Usha Nursing Home, Shivamogga and at that

time, respondent No.1 - driver of vehicle bearing registration

No.KA-14-A-4266 came in a high speed and negligent

manner and dashed against the claimant. As a result of the

aforesaid accident, the claimant sustained grievous injuries

on legs and other multiple injuries all over the body.

3. The claimant thereupon filed a petition under

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

claimant was admitted to Mc.Gann Hospital, Shivamogga,

where he took treatment as inpatient and thereafter he was

shifted to Kasturba Hospital, Manipal on 16.7.2017 and

discharged on 15.8.2017 and remained as an inpatient for a

total period of 30 days. It is also pleaded that the claimant

has spent more than Rs.4,74,717/- towards medical

expenses. It was also claimed that the claimant was earning

Rs.25,000/- by doing agriculture and doing real estate

business 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 rider of the motorbike. The

claimant claimed compensation to the tune of Rs.65,00,000/-

along with interest.

4. The respondent - Insurance Company appeared

through their counsel and filed written statement. 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. The Insurance Company disputed that the

driver was holding valid driving licence to drive heavy

passenger vehicle. The Insurance Company further pleaded

that the accident occurred due to the negligence on the part

of the claimant. The age, occupation, income and injuries

sustained by the claimant was denied. 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 herself as PW-1 and got exhibited documents

namely Ex.P1 to Ex.P14. The respondents neither examined

any witnesses but got exhibited the Insurance Policy at

Ex.D1. The Claims Tribunal, by the impugned judgment,

inter alia, held that the accident took place on account of

rash and negligent driving of the motorcycle of the offending

vehicle, as a result of which, the claimant sustained injuries.

The Tribunal further held that the claimant is entitled to a

compensation of Rs.23,89,000/- 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 as Rs.12,000/- per month instead of Rs.25,000/-

per month having regard to the fact that he was an

agriculturist. He further submitted that the compensation

awarded under the conventional heads is on the lower side

and the same requires to be enhanced. It is further

submitted that the Tribunal has erred in not making an

addition to the tune of 25% to the income of the claimant on

account of future prospects in view of the law laid down by

the Supreme Court in PAPPU DEO YADAV V. NARESH

KUMAR AIR 2020 SC 4424.

7. The respondents though served with notices have

remained absent.

8. We have considered the submissions made by

learned counsel for the parties and have perused the record.

9. 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. The accident is of

the year 2017 and in the absence of proof of income, the

Tribunal considering the occupation of the claimant and also

oral evidence and cost of living assessed the income of the

claimant at Rs.12,000/- per month, which is just and proper

and does not call for any interference.

10. Due to the accidental injuries, the claimant had

to undergo amputation of left leg below the knee joint and

right leg above the knee joint. The Tribunal considering

Ex.P12 i.e. disability certificate assessed the functional

disability of the claimant at 100% having regard to the

avocation of the claimant. The claimant has sustained the

following injuries:

1) Crush injury over an area of 60 x 15 cm was present over the right leg involving the bone, tendon and muscle of right leg, starting at a point 15 cm below right knee joint.

2) Avulsed laceration measuring 60 x 15 cm involving the bone, tender and muscle of left leg starting at a point 20 cm below the left knee joint.

11. The claimant was aged 50 years as on the date of

accident. However, the Tribunal has erroneously applied

multiplier of `11' instead of `13' in accordance with the

decision of the Apex Court in the case of SARLA VERMA

AND ANOTHER -VS- DELHI TRANSPORT CORPORATION

AND ANOTHER (CIVIL APPEAL No.3483/2008). The

claimant has suffered 100% functional disability due to the

accidental injuries. The Tribunal has not granted

compensation towards future prospects. Hence, 25% of

income is to be added to the income of the claimant on

account of future prospects in view of the law laid down by

the Supreme Court in PAPPU DEO YADAV V. NARESH

KUMAR AIR 2020 SC 4424. Thus, the income of the

claimant comes to Rs.15,000/- per month. Therefore, the

claimant is entitled to Rs.23,40,000/- (Rs.15,000 x 12 x 13)

under the head 'loss of earning capacity' as against

Rs.15,84,000/- awarded by the Tribunal.

12. The Tribunal has awarded a sum of Rs.1,00,000/-

towards `loss of future amenities'. Having regard to the fact

that the claimant has undergone amputation of both the legs

below the knee, it would be appropriate to enhance the

compensation by further sum of Rs.50,000/-. Hence, the

claimant is entitled for compensation of Rs.1,50,000/-

towards `loss of future amenities'.

13. The Tribunal has not awarded any compensation

towards `future medical expenses'. In view of amputation of

both the legs of the claimant, it would be appropriate to

award a sum of Rs.50,000/- under the said head.

14. The compensation awarded under the other

heads is just and proper and the same is maintained.

15. Thus, the claimant is held entitled to a total

compensation of Rs.32,45,000/-. Needless to state that the

enhanced amount of compensation 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 is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

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