Karnataka High Court

Koushik A K vs The Manager on 11 July, 2022

Bench: Hanchate Sanjeevkumarpresided Byhsj

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11TH DAY OF JULY, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

MISCELLANEOUS FIRST APPEAL NO.6639 OF 2017 (MV)

BETWEEN:

KOUSHIK A.K.
S/O. KUMAR V.
AGED ABOUT 23 YEARS
R/OF ACHANGI VILLAGE,
3RD CROSS ROAD,
HALASULIGE POST,
SAKALESHPUR TALUK,
HASSAN DISTRICT-573 201.
                                           ... APPELLANT
(BY SRI. MADHU M.T., ADVOCATE FOR
 SRI. GIRISH B. BALADARE, ADVOCATE)

AND:

 1. THE MANAGER
    EPCO TOKYO GENERAL INS. CO. LTD.,
    KANTMAR SERVICES CENTER,
    SRI SAKTHI TRAVARS,
    5TH FLOOR, 141, 3RD MAIN,
    UTTARADA NGEP LAYOUT,
    KASTHURI NAGAR,
    BENGALURU-560 043.

 2. RAJAMMA B.S.
    W/O. MASANASHETTY
    AGED ABOUT 35 YEARS
    NO.142, RAJALAKSHMI NILAYA,
    NEELAKANTA TOWN,
    MYSURU DISTRICT-570 001.
                                        ... RESPONDENTS
                                2


(BY SRI. B. PRADEEP, ADVOCATE FOR R1;
 NOTICE TO R2 IS DISPESNSED WITH VIDE ORDER
 DATED 22.11.2018)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLE ACT AGAINST THE
JUDGMENT AND AWARD DATED 20TH APRIL, 2017 PASSED
IN M.V.C NO.956 OF 2016 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL AT
SAKALESHPUR, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

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

                      JUDGMENT

This appeal is filed by claimant challenging the

judgment and award dated 20th April, 2017 passed in M.V.C

No.956 of 2016 on the file of the Senior Civil Judge and

Motor Accident Claims Tribunal, Sakaleshpur (for short,

hereinafter referred to as 'Tribunal'), seeking enhancement

of compensation.

2. For the sake of convenience, the parties in this

appeal shall be referred to in terms of their status and

ranking before the Tribunal.

3. The brief facts for the adjudication of this appeal

are that on 19th February, 2016 at about 04.30 p.m., the

claimant was proceeding towards Mysuru in his TVS Victor

Motorcycle bearing registration No.KA-13-L-7189 after

finishing his work at Nanjangudu and the said vehicle dashed

against a Tractor bearing registration No.KA-35-T-8792

which was coming from Mysuru and as a result of same, the

claimant sustained injuries. Hence, claimant filed claim

petition before the Tribunal, seeking compensation.

4. On service of notice, respondents entered

appearance and filed detailed written statement denying the

averments made in the claim petition. The Tribunal, after

considering the material on record, has framed issues for its

consideration. In order to prove the case, the claimant

examined himself as PW1 and examined the Doctor as PW2

and produced 30 documents and same were got marked as

Exhibits P1 to P30. On the other hand, the respondents

have not adduced any evidence before the Tribunal. The

Tribunal, after considering the material on record, by its

judgment and award dated 20th April, 2017, allowed the

claim petition in part and held that the claimant is entitled

for compensation of Rs.2,53,626/- with interest at the rate

of 9% per annum from the date of petition till the date of

deposit. Being dissatisfied with the quantum of

compensation awarded by the Tribunal, the claimant has

preferred the present appeal.

5. I have heard learned Counsel Sri. Madhu M.T. for

Sri. Girish B. Baladare, learned counsel appearing for the

appellant/claimant and Sri. B. Pradeep, learned counsel

appearing for respondent No.1-Insurance Company.

6. Sri. Madhu M.T. Learned counsel appearing for

claimant/appellant submits that the claimant was working in

Telecommunication firm and the nature of job of the

claimant was engineer skill and was receiving salary of

Rs.20,000/- per month as per Exhibit P27-Salary Certificate.

However, the Tribunal has committed error in taking the

income at Rs.6,000/- per month. Hence, award of

compensation is on lesser side. Therefore prays for

enhancement of the compensation. Further, the learned

counsel submits that the compensation awarded under other

heads is also on lesser side which requires to be enhanced.

7. On the other hand, Sri. B. Pradeep, learned counsel

appearing for respondent No.1-Insurance Company submits

that the compensation amount awarded by Tribunal is

correct and does not call for any interference in this appeal.

Therefore, prays for dismissal of the appeal.

8. The Tribunal has awarded compensation under

various heads as follows:

   Sl.              Head of compensation                Amount
   No.                                                   (Rs.)
    1         Towards loss of future income due to       77,760-00
              disability

     2        Towards pain and suffering                 25,000-00

     3        Towards      food,    nourishment,         15,000-00
              traveling, conveyance & attendant
              charges.

     4        Towards medical expenses                  1,19,866-00

     5        Towards loss of future amenities           10,000-00

     6        Towards loss of income during laid up       6,000-00
              period

                          Total                        2,53,626-00

9. Exhibits P5, P8 to P24 and P26, which are Wound

Certificate, Medical bills, Discharge summary and

prescriptions prove the fact that the appellant has sustained

the following injuries:

"Right thigh- swelling deformity limb shortening present and wound about 2x3 c.m., irregular size and shape Fracture shaft of right femur bone."

10. X-ray films are produced which proves the fact

that the appellant has suffered fracture of right femur bone

which is fortified by the evidence of PW2-Doctor. Therefore,

the compensation awarded under the head 'pain and

suffering' is correct which needs no modification.

11. It is stated that the appellant even though was a

Commerce Graduate, but he was doing engineer skill in

Telecommunication firm and he had suffered fracture to the

right femur which is a major injury. The PW2-Doctor had

assessed the disability and opined that the appellant suffered

19% of permanent physical disability towards right limb.

Even though the Doctor had not stated the percentage of

disability towards the whole body, the nature of work of the

appellant is to be considered along with the injury sustained

by him. Calculation of functional disability is always not

mathematical calculation. Hence, taking one-third of

disability towards the particular limb is a formula but it is

only a guidance value, considering the fact that the appellant

had suffered fracture to the right femur bone and was

working in Telecommunication firm and the nature of the

work requires field work. Therefore, even though the Doctor-

PW2 had stated 19% physical disability towards right lower

limb, the disability to whole body is taken as 10%. The year

of accident is 2016. The Tribunal has held notional income as

Rs.6,000/- per month which is on lesser side. Therefore, as

per the notional income chart recognised by the Karnataka

State Legal Services Authority in the absence of any other

documents or proper proof regarding income, notional

income at Rs.9,500/- per month is taken even though the

appellant is paid Rs.20,000/- as per salary certificate issued

but, the employer is not examined. Mere production of

salary certificate is not sufficient. Considering the fact that

the appellant is working in a small town, therefore,

regarding proof of income as contended by the appellant, the

examination of employer was necessary. However, he has

not been examined. Hence, notional income is adopted. The

appellant was aged 21 years as on the date of the accident.

Therefore, the appropriate multiplier would be 18. Hence,

loss of earnings capacity due to disability is recalculated and

quantified at Rs.2,05,200/- (Rs.9,500-00 x 12 x 18 x 10%)

and accordingly awarded under the said head.

12. Further the award of compensation under the

head 'medical expenses' is as per actual bills which is found

to be correct. Hence there is no need to make modification.

Further, a sum of Rs.15,000/- awarded under the head 'food,

nourishment, traveling, conveyance & attendant charges' is

found to be proper and hence not disturbed. The Tribunal

has awarded compensation of Rs.10,000/- towards 'loss of

amenities' and the same needs to be enhanced. Accordingly,

sum of Rs.20,000/- is awarded as against 10,000/- awarded

by the Tribunal.

13. The appellant has taken treatment being inpatient

for 20 days in the hospital. Even though the appellant has

taken conservative treatment, he has to prove that he has

taken treatment as inpatient for 20 days. Considering the

fact that the appellant has sustained fracture of right femur

bone, the appellant at least must not have attended the

work for a period of two months. Therefore, the

compensation is accordingly taken considering the notional

income as Rs.9,500/- for two months. Hence, 'loss of

income during the laid up period' is Rs.19,000/- (9,500/- x 2

months) and is awarded. The PW2-Doctor had deposed that

the appellant required some amount for future medical

expenses ranging between Rs.50,000/- to Rs.60,000/-.

Therefore, considering this aspect, even though the appellant

has not produced any other evidence as to whether the

appellant has taken treatment after being discharged from

the hospital, however, it is a fact that for the fractured

injuries, the appellant needed some amount for future

medical expenses. Accordingly, a sum of Rs.15,000/- is

awarded under the head 'future medical expenses'. Thus in

all the appellant is entitled for compensation as follows:

   Sl.                   Head                    Amount
   No.                                            (Rs.)

    1    Loss of future income due to            2,05,200-00
         disability

    2    Pain and suffering                       25,000-00

    3    Food, nourishment, traveling,            15,000-00
         conveyance and attendant charges

    4    Medical expenses                        1,19,866-00

    5    Loss of amenities                        20,000-00

    6    Loss of income during the laid up        19,000-00
         period

    7    Future medical expenses                  15,000-00

                      Total                    4,19,066-00

14. The Tribunal has awarded compensation of

Rs.2,53,626/-, but the appellant is entitled to a total

compensation of Rs.4,19,066/-. Hence, the appellant/

claimant is entitled for enhanced compensation of

Rs.1,65,440/- (Rs.4,19,066-00 - Rs.2,53,626-00).

Therefore, the appellant/claimant is entitled to enhanced

compensation of Rs.1,65,440/- along with interest at the

rate of 6% per annum from the date of petition till the date

of realisation. Accordingly, I pass the following:

ORDER

i) Appeal is allowed in part;

ii) The Judgment and award dated 20th April, 2017 passed in M.V.C No.956 of 2016 on the file of the Senior Civil Judge and Motor Accident Claims Tribunal, Sakleshpur, is modified;

iii) The appellant/claimant is entitled to enhanced compensation of Rs.1,65,440/- along with interest at the rate of 6% per annum till the date of realisation, in addition to what he has been awarded by the Tribunal;