Karnataka High Court
Saiprasad S/O Prakash Naik vs Manoj Harishchandra Naik on 14 February, 2022
Bench: S G Pandit, Anant Ramanath Hegde
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.G. PANDIT
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
MFA No.100745/2016 (MV)
C/W
C/W MFA NO.101252/2016 (MV)
IN MFA No.100745/2016 (MV)
BETWEEN:
SAIPRASAD S/O PRAKASH NAIK,
AGE: 25 YEARS, R/O: NEAR ITI COLLEGE,
BAAD, AT POST: NANDANAGADDA,
TQ: KARWAR, DIST: UTTAR KANNADA,
PIN: 581304. ...APPELLANT
(BY SRI.A.S.PATIL., ADVOCATE)
AND
1. MANOJ HARISHCHANDRA NAIK,
AGE: 40 YEARS, R/O H NO.365
GAL BHATPAL, CANCONA, GOA.
2. THE NEW INDIA ASSURANCE COMPANY LTD.,
DIVISIONAL OFFICE, MARGAON,
2
REPRESENTED BY ITS DIVISIONAL MANAGER,
JAGANNATH BUILDINGK,
NEAR RAILWAY FLY OVER MARGAO,
GOA STATE.
...RESPONDENTS
(BY SMT. PREETI SHASHANK, ADVOCATE)
MFA FILED U/S.173(1) OF MV ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED 07.01.2016 PASSED IN
MVC NO.57/2012 ON THE FILE OF THE 1ST ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, KARWAR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSTION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.101252/2016 (MV)
NEW INDIA ASSURANCE CO. LTD.,
THE DIVISIONAL OFFICE, MARGAON
REPRESENTED BY ITS DIVISIONAL MANAGER,
JAGANNATH BUILDING,
NEAR RAILWAY FLY OVER MARGAO,
GOA STATE,
REPRESENTED BY THROUGH ITS
REGIONAL OFFICE, HUBBALLI
MOTOR THIRD PARTY CLAIMS HUB
SHRINATH COMPLEX, II FLOOR
NEW COTTON MARKET, HUBBALLI - 580 029,
REPRESENTED BY ITS DULY CONSTITUTED ATTORNEY
...APPELLANT
3
(BY SMT. PREETI SHASHANK, ADVOCATE)
AND
1. SRI SAIPARASAD S/O PRAKASH NAIK,
AGED ABOUT 25 YEARS,
R/O: NEAR ITI COLLEGE, BAAD,
POST: NANDANGADDA, TQ: KARWAR,
DIST: UTTAR KANNADA - 581 304.
2. MANOJ HARISHCHANDRA NAIK,
AGED ABOUT 40 YEARS,
R/O: H.NO.365, GAL BHATPAL,
CANCONA, GOA.
...RESPONDENTS
(BY SRI A. S. PATIL, ADVOCATE FOR R1
R2 SERVED)
MFA FILED U/S.173(1) OF MV ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED 07.01.2016 PASSED IN
MVC NO.57/2012 ON THE FILE OF THE MEMBER, 1ST
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
KARWAR, AWARDING THE COMPENSTION OF RS.25,16,400/-
WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE
OF PETITION TILL ITS REALISATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, ANANT RAMANATH HEGDE J., DELIVERED THE
FOLLOWING:
4
JUDGMENT
In MVC No.57/2012 on the file of I Additional MACT
Karwar (hereinafter referred to as 'the Tribunal' for short)
the claimant who suffered injuries in a motor vehicle
accident claimed compensation of Rs.50,00,000.00.
2. The facts narrated in the petition can be
summarized as under:
3. According to the claimant, the accident
occurred on 24.07.2011, while he was riding a motor cycle
bearing No.KA-22/EC-9560, TATA SUMO vehicle bearing
No.GA-02/G8909 dashed the motorcycle of the claimant on
account of the rash and negligent driving of the driver of
the TATA SUMO vehicle. The claimant states that he
suffered a fracture of tibia and fibula and radius of left
hand. According to the claimant, he underwent hip surgery
and he was inpatient in the hospital from 24.07.2011 to
31.08.2011.
4. The petition was contested by the insurer and
the insurer took a stand that the accident in question
occurred on account of rash and negligent driving of the
claimant himself. The existence of policy covering the risk
from 03.05.2011 to 02.05.2012 is admitted. However, the
insurance company would take a stand that the liability is
subject to the terms and conditions of the policy. The
insurer also took a stand that the driver of the TATA SUMO
vehicle was not possessing a valid and effective driving
license at the time of the accident.
5. Based on the pleadings, the Tribunal had
framed issues relating to the alleged negligence of the
parties and violation of terms and conditions of the policy.
The Tribunal based on the evidence placed before it
particularly referring to the verdict of the guilt pronounced
by Criminal Court, wherein the driver of the TATA SUMO
pleaded guilty has concluded that the driver of the TATA
SUMO alone was negligent in causing the accident. The
Tribunal is also of the opinion that there is no contributory
negligence on the part of the claimant.
6. After analyzing the evidence on record relating
to the quantum of compensation, the Tribunal awarded
compensation of Rs.25,16,400.00 in favour of the
petitioner along with interest at the rate of 6% p.a.
7. Aggrieved by the quantum of compensation
awarded by the Tribunal, the claimant has preferred MFA
No.100745/2016, seeking enhancement of compensation.
The second respondent-insurer before the Tribunal has
filed MFA No.101252/2016 seeking reduction of the
compensation awarded by the Tribunal.
8. This Court heard the submissions of Sri. A. S.
Patil learned counsel for the claimant as well as the
submissions made by Smt. Preeti Shashank appearing for
the insurance company.
9. The claimant would urge that Tribunal erred in
awarding compensation of Rs.11,66,400.00 towards loss of
income. The claimant contends that the income of the
claimant should have been taken at Rs.20,000.00 per
month instead of Rs.6,000.00 per month, which is taken
by the Tribunal. It is the case of the claimant that he being
a B.com Graduate would have easily earned Rs.20,000.00
per month and taking Rs.6,000.00 per month as notional
income resulted in miscarriage of justice.
10. It is the further case that the compensation of
Rs.85,000.00 awarded under the head of pain and
suffering is inadequate and the award of Rs.50,000.00
under the head of loss of marital prospects and amenities
of life is also lower side. The claimant also claims
enhancement of compensation under the head of
attendant charges and conveyance charges, wherein the
Tribunal has awarded Rs.30,000.00 and Rs.20,000.00
respectively. Thus, the claimant seeks enhancement of
compensation on these two heads also.
11. Learned counsel for the insurer Smt. Preeti
Shashank would submit that the Tribunal committed a
grave error in awarding compensation on the head of loss
of future income. It is also her contention that the claimant
has not suffered any permanent disability and there is no
loss of academic year owing to injuries sustained in the
accident and there is no disability. As far as his income is
concerned, it is her case that the claimant was not earning
at the time of the accident and any stretch of imagination,
the claimant's income could not be taken as Rs.20,000.00
per month.
12. Inviting attention of this Court to the portion of
the judgement and award, where the Tribunal has taken
disability at 50% to determine loss of future income,
learned counsel, Smt. Preeti Shashank would submit that
given the fact that the petitioner has recovered, the
Tribunal erred in taking disability at 50%. On the above-
said premises, the learned counsel would urge to allow the
appeal filed by the insurer and to reduce the
compensation.
13. The learned counsel for the insurer would also
submit that the claimant has received Rs.9,15,954.00 from
the employer of the claimant's father, which is paid
towards medical expenses and would urge that the
compensation under the head of medical expenses is to be
reduced to the said extent. Learned counsel would urge
that the claimant is not entitled to receive the
compensation twice under the head of medical expenses.
14. In support of her contention, the learned
counsel places reliance on the judgement of the Co-
ordinate Bench of this Court in the matter of The New
India Assurance Company Limited V/s Manish
Guptha1.
15. This Court has considered the contentions
raised at the bar and perused the judgement placed on
record. In the aforesaid judgement, the Co-ordinate Bench
of this Court has held that the compensation paid under
the medical policy is to be taken into consideration while
(2013) ACJ 2478
awarding compensation under the head of medical
expenses. Para No.17 of the said judgement deals with
deductions to be made in respect of compensation to be
awarded in favour of the claimant. The records placed
before the Court would state that the claimant has
received Rs.9,15,954.00 from the employer of the
claimant's father. Under these circumstances, the award of
compensation of Rs.11,65,000.00 under the head of
medical expenses is to be reduced to the extent of
compensation received by the claimant from the employer
of the claimant's father.
16. As far as compensation awarded towards
future prospects, this Court is of the opinion that the
compensation is on the higher side. The Tribunal could not
have added 50% to the notional income of Rs.6,000.00
taken by the Tribunal. To accept the contention of the
claimant that he would have earned Rs.20,000.00 p.m. as
he being the B.com graduate has no basis. From the
records, it is clear that even after the accident the
petitioner has pursued his education and completed
graduation. The medical certificate does not indicate that
the petitioner has any functional disability to the extent of
60% as assessed by the Doctor. Though, the disability
assessed by the doctor is 60% to the lower limb, this Court
is of the opinion that 20% (1/3rd of 60%) disability has to
be taken to consider the loss of future income. Hence,
compensation under the head loss of income would be,
Rs.6,000.00 X 12 (months) X 18 (multiplier) X 20/100
(20% disability) = Rs.2,59,200.00.
17. The compensation under the head of pain
suffering needs to be enhanced from Rs.85,000.00 to
Rs.1,00,000.00 and loss of amenities in life from
Rs.50,000.00 to Rs.1,00,000.00.
18. As rightly contend by Smt. Preeti Shashank the
claimant has received Rs.9,15,954.00 towards medical
expenses from the employer of his father. However, the
Tribunal has awarded compensation of Rs.11,65,000.00
under the head of medical expenses. This amounts to
double payment and therefore the compensation under
head of medical expenses is to be reduced by
Rs.9,15,954.00 and claimant would be entitle to
Rs.2,49,046.00 under the said head.
19. The compensation awarded under the other
heads would remain intact. Hence, the compensation
payable would be,
Amount in
Sl.
Head of Loss
No. Rs.
1. Loss of future income Rs.2,59,200.00
2. Pain and suffering Rs.1,00,000.00
3. Loss of amenities in life Rs.1,00,000.00
Medical expenses
4. Rs.2,49,046.00
(Rs.11,65,000.00 - Rs.9,15,954.00
Total Rs.2,49,046.00)
5. Attendant charges Rs.30,000.00
6. Conveyance charges Rs.20,000.00
Total Rs.7,58,246.00
20. Hence, the following:
ORDER
Both the appeals are allowed in part.
Judgement and award in MVC No.57/2012 on the file
of I Additional MACT Karwar dated 07.01.2016 is modified.
The claimant is entitled to Rs.7,58,246.00 as against
Rs.25,16,400.00 awarded by the Tribunal.
The compensation shall carry interest at 6% p.a.
from the date of petition till realization.
The rest of the award is not disturbed.
Sd/-
JUDGE
Sd/-
JUDGE
SSP
