Shrinivas S/O. Mariyappa Jalagar vs N.Balachandran S/O. Narayana ...
2022 Latest Caselaw 327 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 10 T H DAY OF JANUARY, 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

             M.F.A. No.101824/2014 (MV)

BET WEEN

SHRI SHR INIVAS S/O MARIYAPPA JALAGAR,
AGE: 38 YEARS, OCC: SEEDS BU SINESS,
R/O RANEBENNUR, NOW AT DEVAGIRI,
TQ. & DIST: HAVERI.
                                            ...APPELLANT
(BY SRI B .M.PATIL , ADVOCATE)

AND

1.    SHRI N.B ALACHANDRAN,
      S/O NARAYANA NADAR,
      AGE: MAJOR, OCC: BUSINESS,
      R/O 7-R, C.C.206/ 261,
      S.G.MU TT ROAD, CHAMARAJPET,
      B ENGALU RU-18,

2.   THE DIV IS IONAL MANAGER,
     U NIT ED INDIA INSU RANCE COMPANY LIMIT ED,
     OP P. KSRTC BU S STAND,
     P.B .ROAD, HAVERI.
                                        ...RESPONDENTS
(BY SRI RAJASHEKHAR S.ARANI, ADVOCATE FOR R2;
 NOTICE TO R1 DISPENSED WITH)

      THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 29.11.2 011 PASS ED IN
MVC No.103/ 2010 ON THE FILE OF THE SENIOR CIVIL
JUDGE     AND   ADDIT IONAL   MOTOR    ACCIDENT    CLAIMS
TRIB UNAL,    HAVERI,   PART LY  AL LOWING   T HE   CLAIM
PET IT ION    FOR      COMPENSATION      AND      SEEKING
ENHANCEMENT OF COMPENSATION.
                                    2




     THIS APPEA L COMING ON FOR ADMISSION, TH IS DAY
THE COU RT DELIVERED THE FOLL OWING:

                              JUDGMENT

The claimant has preferred this appeal as ag ainst

the judgment and award dated 29.11.2011 passed by

the Court of Senior Civil Judge and Addl.M.A.C.T.,

Haveri (hereinafter referred to as the 'Tribunal' for

brevity) in MVC No.103/2010.

2. The parties to this appeal are referred to by

their rankings before the Tribunal for the purpose of

convenience. Though this appeal is listed for

admission with the consent of the learned counsels

appearing for the parties, the appeal is taken up for

final disposal.

3. Brief facts of the case that would be

relevant for the purpose of disposal of this appeal

are:

The claimant had met with the accident on

28.04.2009 at about 9.30 p.m. while he was crossing

Pune-Bengaluru road at Ranebennur when a lorry

bearing registration No.KA-01/AD-1188 which was

driven in a rash and negligent manner by its driver

dashed against him. As a result of the accident, both

legs of the claimant had come under the wheels of

the lorry and he had suffered injuries. Immediately

he was shifted to Government Hospital, Ranebennur

and thereafterwards he had taken treatment in

Katenahalli Government Hospital at Byadagi taluk and

also subsequently at C.G.Hospital, Davanagere. The

material on record would go to show that the left leg

of the claimant was amputated above knee. The

police after investigating the criminal case registered

against the driver of the offending lorry have filed a

charge sheet against him. The claimant had filed a

claim petition in MVC No.103/2010 claiming

compensation of `15,00,000/- in respect of the

injuries suffered by him in the road traffic accident

and in the said claim petition filed under Section 166

of the Motor Vehicles Act, 1988 (for short, the 'Act'),

the Tribunal had awarded only a nominal

compensation of `7,500/- with interest at 6% per

annum from the date of petition till its realization

and respondent No.2-insurer was directed to deposit

the compensation amount with interest since the

offending lorry in question was duly insured with the

insurer at the relevant time of accident. Being not

satisfied with the amount of compensation awarded,

the claimant is before this Court.

4. Learned counsel for the claimant submits

that the accident in question is not disputed. He

submits that the medical records would go to show

that the claimant had suffered injuries on both his

legs in the accident in question. Subsequently, the

injuries got aggravated and resultantly the left leg of

the claimant was amputated above knee. He submits

that the Tribunal has erred in appreciating all these

aspects of the matter and has erred in rejecting the

claim for compensation regarding disability on the

ground that the amputation was not as a result of the

injury suffered in the accident. He submits that the

medical evidence on record clearly establishes the

claimant had suffered injuries in the accident in

question and subsequently because of the

aggravation of the said injuries, the left leg of the

injured was amputated. Learned counsel appearing

for the claimant has taken the Court through the

evidence of PW1 and also PWs2 to 4 who are the

doctors who treated the claimant.

5. Per contra, learned counsel appearing for

the insurer submits that the amputation was not a

result of the injury sustained in the accident in

question. He submits that the medical records would

go to show that the claimant had suffered simple

injuries in the accident. He also submits that there

are corrections made in the medical records which

would prima facie show that the claimant had

suffered injury on his right leg and not on his left

leg. He submits that the doctor who had issued

wound certificate has admitted to the allegations

made in the certificate. He also submits that having

regard to the medical evidence available on record, it

is very clear that aggravation of the injury was as a

result of the gross negligence of the claimant herein

and therefore he is not entitled for any

compensation. Accordingly, he prays to dismiss the

appeal.

6. I have carefully appreciated the arguments

addressed on both sides and also perused the

material available on record.

7. The material on record would go to show

that the claimant had met with an accident on

28.04.2009 at about 9.30 p.m. and the offending

lorry bearing No.KA-01/AD-1188 was involved in the

said accident. A complaint was lodged in this regard

by the brother of the claimant on 29.04.2009 and

based on the same, a criminal case was registered

against the driver of the offending lorry and

subsequently the police have filed a charge sheet

against him. A reading of this material would go to

show that the claimant had suffered injuries in the

said accident on both his legs. The evidence of PW4-

Dr.S.S.Gadag would go to show that immediately

after the accident on 28.04.2009, the claimant has

brought to the Government Hospital at Ranebennur

and an orthopedic doctor had treated him. He was

also stated that on examination, it was found that

there were tire marks on the leg of the claimant and

both his legs suffered injuries. The evidence of PW3-

Dr.C.S.Viraktamath who was the doctor in the

Government Hospital at Katenahalli would go to show

that the claimant had approached the said hospital on

30.05.2009 and on examination, it was found that in

the right leg, the claimant had suffered cereulide

infection and even in the left leg, he had similar

infection. He also says that the claimant could not be

cured in his hospital and therefore he was referred to

higher hospital for better treatment. He has further

stated that in the accident because of the injuries if

there is blood clotting, then the same could develop

as gangrene subsequently.

8. PW2 is the doctor who had subsequently

treated the claimant and he has admitted in his

evidence that the claimant had developed gangrene

in his left leg and therefore in order to save his life,

his legt leg had to be amputated above knee. The

photograph of the claimant is also produced at Exs.P7

and P8. A perusal of the same would very clearly go

to show that the left leg of the claimant has been

amputated above knee and below the hip.

9. From an overall appreciation of the oral and

documentary evidence available on record, it can be

clearly gathered that the claimant had suffered

injuries in the road traffic accident that had taken

place on 28.04.2009 and the offending lorry in

question was involved in the said accident. It can

also be gathered that the claimant has not taken

proper treatment for the said injuries and as a result,

it appears that the injury suffered by the claimant

got aggravated which had resulted in developing

gangrene.

10. Be that as it may be, finally the claimant's

left leg had to be amputated above knee and

therefore it is very clear that as a result of the

accident in question, the claimant has lost a limb. As

rightly contended by the learned counsel for the

insurer, it cannot be said that the amputation was a

direct result of the injuries caused in the accident in

question. From the oral and documentary evidence

available on record, it is seen that because of the

negligence of the claimant as well as of the doctors

who treated him, the claimant ultimately had to loose

his limb. Therefore, as rightly contended by the

insurer, there is a contribution of negligence even on

the part of the claimant as he had failed to take

proper treatment for his injuries though the medical

records would go to show that the injuries caused

were initially simple in nature. However, it cannot be

ignored that it is only because of the injury that was

caused in the accident in question, all these

complications had taken place and in view of the

subsequent developments of gangrene in the injured

limb of the claimant, the doctor who was treating him

had to amputate the said limb. Therefore, I am of the

considered view that if the contributory negligence is

attributed at 50% on the claimant, it would meet the

ends of justice.

11. Insofar as compensation to be awarded to

the claimant is concerned, admittedly the claimant

had not produced any evidence so as to establish or

prove that he had income of `15,000/- per month as

claimed by him. The accident is of the year 2009 and

therefore having regard to the income chart

maintained by the Karnataka Legal Services Authority

for the purpose of disposal of motor accident cases in

the Lok Adalath, the notional income of the claimant

is taken at `5,000/- per month.

12. Considering the fact that the amputation of

left leg is below hip and above the knee and from the

perusal of the photograph of the claimant, I am of

the considered view that the disability of the claimant

would be taken at 70% in view of schedule I of

Employees Compensation Act, 1923. The claimant

was aged about 34 years at the time of accident and

therefore the proper multiplier applicable would be

16. Having regard to the age of the claimant, 40% of

the income is required to be added towards his future

prospects. In the said event, the claimant would be

entitled for a compensation towards 'loss of future

earning due to disability' to the tune of ` 9,40,800/-

[`7000 (`5000+`2000)x12x16x70%).

13. The claimant is entitled for a further sum of

` 30,000/- towards 'pain and suffering', a sum of

` 25,000/- towards 'loss of amenities' and towards

the loss of earning during laid up period and also

towards incidental expenses, the claimant is entitled

for a further sum of ` 20,000/-. In all the claimant

is entitled for a compensation of `10,15,800/-.

Accordingly, the following:

ORDER

The Miscellaneous First Appeal is allowed in part.

The claimant is entitled for a compensation of ` 10,15,800/- as against the amount of ` 7,500/- awarded by the Tribunal. The enhanced compensation amount awarded shall carry interest at 6% per annum.

Since this Court has held that the contributory negligence of the claimant would be at 50%, the claimant shall be entitled for a compensation of ` 5,07,900/- and the said amount of compensation is required to be deposited by the Insurer before the Tribunal within a period of six weeks from the date of receipt of certified copy of this order.

Out of the said amount, the claimant would be entitled to withdraw a sum of `2,07,000/- with proportional interest and the remaining amount of `3,00,000/- with proportional interest shall be invested by the Tribunal by way of fixed deposit in any nationalised Bank initially for a period of three years.

SD/-

JUDGE CLK/gab