Karnataka High Court

Sri. Pramodh C. Shetty vs Sri.Abdul Majid on 8 July, 2022

Bench: Anant Ramanath Hegde

                            1




  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 08TH DAY OF JULY, 2022

                        BEFORE

  THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

            M.F.A.NO.7356 OF 2013 (MV-I)

BETWEEN:

SRI. PRAMODH C. SHETTY,
S/O CHANDAYYA SHETTY,
AGED 25 YEARS,
R/O MATHA SHRI HOUSE,
9TH CROSS ROAD, MSIZL COLONY,
KODIKERE, KULAI,
MANGALORE - 575 019.                        ...APPELLANT

(BY SRI PUNDIKAI ISHWARA BHAT, ADV.)

AND:

  1. SRI.ABDUL MAJID,
     AGED 41 YEARS,
     S/O SRI MOHAMMED SAHEB,
     R/O NAGOOR HOUSE,
     KUNDAPURA TALUK,
     UDUPI DISTRICT - 576 201.

  2. THE NATIONAL INSURANCE CO. LTD.,
     NETHRAVATHI BUILDING, BALMATTA,
     MANGALORE - 575 001,
     REPTD BY ITS MANAGER.                ...RESPONDENTS

(BY SRI ANUP SEETHARAM RAO, ADV. FOR
 SRI B.C.SEETHARAMA RAO, ADV. FOR R2 (VC),
 NOTICE TO R1 IS DISPENSED V/O/DT: 31.08.2015)
                          ----
      THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 24.3.2012 PASSED IN MVC
                                    2




NO.551/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, MEMBER, MACT, MANGALORE, PARTLY ALLOWING THE
CLAIM   PETITION FOR    COMPENSATION   AND   SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-


                           JUDGMENT

This appeal is filed by the claimant seeking

enhancement of compensation challenging the judgment

and award dated 24.03.2012 in MVC No.551/2012 passed

by the MACT at Mangalore.

2. For the sake of convenience, parties are referred

to as per their rank before the Tribunal.

3. Heard learned advocate for the appellant and

learned advocate for respondent No.2/insurer. Notice to

respondent No.1 is dispensed with vide order dated

31.08.2015 as there is no liability on him.

4. In terms of the judgment and award dated

24.03.2012 the Tribunal has awarded compensation of

Rs.4,58,000/- along with interest @ 6% per annum. Since

the liability is admitted, details relating to the accident

need not be necessary for the adjudication of this case.

5. Admittedly the accident took place on 8.03.2010.

The claimant has suffered the following injuries:-

1. Abrasion, 5cmx4cm, over left cheek.

2. Abrasion, 8cmx5cm, over the outer aspect of the left upper arm, just below the shoulder.

3. Abrasion, 7cmx4cm, over the outer back aspect of the left forearm just below the elbow.

4. Multiple small abrasions, over the dorsum of the left hand.

5. Abrasion, 7cmx5cm, over left chest.

6. Abrasion, 10cmx8cm, over left upper back.

7. Fracture of left scapula.

8. Left-sided subclavian artery injury-Thrombus formation (CT Scan Angiogram of left upper limb).

9. Global palsy of brachial plexus with C5 to TI root avulsion of the left upper limb.

6. The records would indicate that the claimant was

inpatient for 32 days on different occasions and there is no

dispute that the claimant was aged 22 years at the time of

the accident and he was a mechanic by profession and the

claimant claim that his income of Rs.6,000/- per month.

No document was produced to proof relating to his skill

earning Rs.6,000/- per month. In the absence of proof

relating to the income, the Tribunal has taken the monthly

notional income of the claimant at Rs.4,000/-.

In the absence of proof relating to the exact income

of the claimant, the chart prepared by the Karnataka State

Legal Services Authority would be the guiding factor to

determine the notional income of the claimant. Since the

accident took place in the year 2010, the notional income

would be Rs.5,500/- per month. It is noticed that the

Tribunal has not awarded compensation under the head of

future prospects. Since the claimant has suffered

permanent disability, the claimant is also entitled to future

prospects at 40% by adding to the notional income and on

that count, the monthly loss of income would be Rs.5500/-

X40%=Rs.7700/-.

The doctor was examined to prove the disability and

the doctor has issued a disability certificate marked at

Ex.P9 wherein he has stated that disability is 90% to the

particular limb and the whole body disability is not

assessed by the doctor. From the evidence of the doctor, it

is apparent that the claimant has lost the strength in his

left hand and the doctor has opined that the left hand is

paralysed. The claimant has also produced the

photographs, though the claimant has not produced the

photographs before the Tribunal. Learned advocates for

the insurer are not disputing photographs and the identity

of the person in the photograph is not disputed and the

authenticity of the photographs. On seeing the

photographs, it is clear that the claimant is not in a

position to use his left hand. Under the circumstance, the

view of this Court is that the substantial earning capacity

of the claimant is lost and the Tribunal has assessed

disability at 20% which is fully inadequate.

7. Looking at the disability suffered by the claimant

this Court is of the view that 70% functional disability is to

be assessed to assess the loss of future income and in that

event, the compensation would be Rs.77,000X70%X12X

18 = Rs.11,64,240/-.

8. The Tribunal has awarded Rs.40,000/- under the

head of pain and suffering. It is forthcoming the records

that the claimant was inpatient for 32 days. Under the

circumstance compensation of Rs.40,000/- awarded under

the head of pain and suffering is on the lower side.

Considering the nature of the injuries suffered by the

claimant and whether he has taken treatment as an

inpatient for 32 days, this Court is of the opinion that the

claimant is entitled to Rs.60,000/- under the said head.

9. Since the loss of earnings is calculated from the

date of the accident, there is no need to award under the

head of loss of earning for the laid-up period and

accordingly, Rs.20,000/- is set-aside.

10. The Tribunal has awarded Rs.1,80,000/- under

the head of medical expenses which is just and proper and

does not require any modification and there is no scope for

enhancement.

11. The doctor during his evidence has stated that

the claimant requires Rs.70,000/- for further treatment.

Considering the nature of the injuries and disability

suffered by the claimant, this Court is view that the

compensation of Rs.25,000/- is awarded under the head of

loss of future medical expenses.

12. The Tribunal has awarded Rs.20,000/- under the

head of food, nourishment, conveyance, and attendant

charges. Considering the fact that the claimant was

inpatient for 32 days, compensation of Rs.30,000/- is

awarded under the said head.

13. It is noticed that the tribunal has not awarded

compensation under the head of loss of amenities. The

claimant has suffered paralysis and the doctor has

assessed permanent disability. On considering the nature

of the injuries sustained by the claimant and also

considering the fact that the claimant has taken treatment

as an inpatient for 32 days, the claimant has lost strength

of an arm, this Court is of the view that the compensation

of Rs.1,50,000/-.

14. Learned advocate for the appellant would

submit that because of the loss of an arm, the claimant

has not married and his marriage prospects are lost. This

Court is of the view that the compensation of

Rs.1,50,000/- is awarded under the head of loss of

marriage prospects.

15. It is also to be noted that the appellant has filed

the instant appeal after the lapse of 411 days. The

application was filed to condone the delay in filing the

appeal. This Court had allowed the application on the

condition that the appellant will not be entitled to interest

for the delayed period in the event of enhancement. The

appellant is entitled to interest from the date of deposit till

the date of actual payment excluding the delayed period of

411 days referred to above.

16. The claimant is entitled to compensation as

under:-

1 Loss of future earnings due to Rs.10,01,004/-

disability Rs.1,63,200/- (Awarded by the Tribunal)-

Rs.11,64,204/- (Awarded by this Court ) = Rs.10,01,004/-

2         Loss of amenities              Rs.1,15,000/-
          Rs.35,000/- (Awarded by the
          Tribunal)    -   Rs.1,50,000/-
          (Awarded by this Court) =
          1,15,000/-
3         Loss of marriage prospects     Rs.1,50,000/-

4         Loss    of   future    medical Rs.25,000/-
          expenses
5         Loss of food, nourishment, Rs.10,000/-
          conveyance,          attendant
          charges.
          Rs.20,000/- (Awarded by the
          Tribunal)    -     Rs.30,000/-
          (Awarded by this Court) =
          Rs.10,000/-
6         Pain and Suffering             Rs.20,000/-

          Rs.40,000/- (Awarded by the
          Tribunal)   -    Rs.60,000/-
          (Awarded by this Court) =
          Rs.20,000/-
          Total                        Rs.13,21,004/-



    17.      Hence, the following:-

                           ORDER

    (i)      Appeal is allowed in part. The impugned judgment

and award dated 30.06.2016 passed by the I Additional

District Judge and II Additional MACT, Mangalore (DK) in

MVC No.1308/2014 is modified.

(ii) The appellant/claimant is entitled to enhanced

compensation of Rs.13,21,004/- along with interest @

6% p.a. from the date of the petition till realisation,

excluding the interest for 411 days.

(iii) The 2nd respondent/insurance company shall

deposit the amount after deducting the amount, if any,

already paid within 8 weeks from the date of receipt of a

copy of this order.