Karnataka High Court
Sri Sandeep R Shetty S/O ... vs Smt. Vishalakshi W/O Late Ramappa ... on 21 July, 2022
Bench: Anant Ramanath Hegde
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS FIRST APPEAL No.10140 OF 2011(MV)
BETWEEN:
SRI SANDEEP R SHETTY,
S/O RAMAKRISHNA SHETTY,
AGED ABOUT 24 YEARS,
R/O GURUPURA,
JANGAMA MATT,
MULOOR VILLAGE,
MANGALORE TALUK.
...APPELLANT
(BY SRI K. RANJAN KUMAR, ADVOCATE)
AND:
1. SMT. VISHALAKSHI,
W/O LATE RAMAPPA BANGERA,
R/O ADARSHA NAGAR
BAJAL, MANGALORE TALUK 574 222.
2. ICICI LOMBARD GENERAL
INSURANCE COMPANY LTD.,
ZENITH HOUSE,
KESHAVARAO KHADE MARG,
MAHALAKSHMI
2
MUMBAI 400 034.
REPRESENTED BY ITS MANAGER.
... RESPONDENTS
(BY SRI B.C.SHIVANNEGOWDA, ADVOCATE FOR R2;
R1 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, AGAINST THE JUDGMENT AND AWARD DATED
08-03-2011 PASSED IN MVC NO.373/2009 BY THE
MEMBER MACT -II AND I ADDITIONAL DISTRICT JUDGE,
DAKSHINA KANNADA, MANGALORE, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned Advocate appearing for the
appellant and learned Advocate appearing for the
respondent No.2-Insurer. Notice to owner is served and
she has remained absent.
2. The claimant has questioned the Judgment and
Award dated 08-03-2011 passed M.V.C.No.373/2009 by
the learned I Additional District Judge and MACT-II,
Dakshina Kannada, Mangalore.
3. In terms of the Judgment and Award passed in
the afore mentioned case, the Tribunal has awarded
compensation of Rs.7,82,000/- in favour of claimant and
directed the Insurance Company to pay the same together
with 6% interest per annum from the date of petition till
the date of realization. Challenging the said award,
claimant is in appeal seeking enhancement.
4. The accident in question occurred on 16-01-2009
when the claimant was traveling as pillion rider and one
Rajesh was riding the bike and when they reached near
Ganesh Kulavoor garage, at about 9.45 p.m., a lorry
bearing No.CNX 6637 came in a rash and negligent
manner on the extreme right side of the road, dashed
against the bike and thereafter against two other
pedestrians. Due to which, appellant sustained the
injuries, for which he took treatment as inpatient at
Tejaswini Hospital, Mangalore from 16-1-2009 to 5-2-2009
and spent huge amount. Therefore, he filed a claim
petition under Section 166 of MV Act, claiming
compensation of Rs.15,00,000/-.
5. Insurer denied the factum of accident and
submitted that there was no accident taken place as stated
by petitioner and said vehicle is falsely involved in the
case.
6. In the said accident, claimant has suffered
following injuries:
1. Swelling and deformity over the right thigh;
2. Extensive degloving crush injury of the right leg
with exposed and crushed bone and soft tissue
with contamination and abnormal mobility;
3. Swelling over the mandible;
Further the X ray revealed the following injuries:
1. Fracture of the right femur with crush injury;
2. Fracture of soft of right femur;
3. Fracture of right leg tibia and fibula
4. Fracture of mandible.
7. Insurer has not disputed the liability and the
accident. Under the circumstances, the question that falls
for consideration before this Court is, Whether the
claimant is entitled for enhancement of compensation.
8. The evidence on record would also indicate that
the petitioner's right leg was amputated above knee. This
finding of fact is also not in dispute. The Tribunal has
assessed and awarded the compensation of Rs.7,82,000/-
with interest at 6% p.a. from the date of petition till the
date of deposit.
9. It is claimed that the appellant was Supervisor,
aged 22 years, earning Rs.6,700/- per month. However,
his claim relating to earning was not established by the
claimant by adducing necessary evidence before the
tribunal. The evidence on behalf of claimant on this
regard is not believed by the Tribunal and Tribunal has
accepted his income at Rs.4,000/- per month. This Court
has considered the evidence relating the claimant's income
of Rs.6,700/- per month and convinced with the finding of
the Tribunal that the claimant has not produced any
credible material relating to the income of Rs.6,700/-. In
the absence of proof relating to the income, the Court
would follow the income indicated in the Chart prepared
by the Karnataka State Legal Services Authority. The
accident occurred in the year 2009. As per the said Chart,
the notional income was Rs.5,000/- per month. Claimant
was aged 22 years and 40% is to be added towards future
prospects and in that event, notional income comes to
Rs.7,000/- per month.
10. The next question is relating to the disability.
There is no dispute over the fact that the petitioner's right
leg was amputated above knee. Doctor has assessed the
disability at 85%. The Tribunal has taken functional
disability at 50%. The learned counsel for appellant in
support of his contention that the claimant has suffered
100% disability, relied upon the judgment of the Division
Bench of this Court dated 19th November 2019,
rendered in M.F.A.No.6925 of 2018 - Gangadhara
Vs. Krishnamurthy B.R. and another. Referring to
the said judgment, learned counsel for the appellant would
submit that, in this case, the functional disability of the
claimant is to be assessed at 100%, as the Division Bench
of this Court has assessed the disability at 100% in a case
where the claimant has suffered amputation of left leg.
11. In the said Judgment, it is also held that the
functional disability has to be assessed with reference to
the kind of work claimant was doing prior to the accident.
In this case, it is not in dispute that claimant was working
as a Supervisor. This Court has noticed that there is no
evidence as to whether the claimant was terminated from
the service or not?.
12. Under the circumstances, instead of taking
100% disability, the disability assessed by the Doctor as
85% is taken as disability to calculate loss of future
income.
13. For the aforesaid reasons, the finding of the
Tribunal about the functional disability at 50% has to be
set aside and functional disability has to be assessed at
85%. In that event, the compensation under the head
'Loss of future income' would be Rs.12,85,200/-
(Rs.7,000/- x 12 x 18 x 85%).
14. This Court has also noticed that the
compensation of Rs.50,000/- is awarded under the head
of pain and suffering and Rs.25,000/- is awarded under
the head of loss of marriage prospects. Since the claimant
has suffered amputation of right leg above knee, the
compensation of Rs.50,000/- awarded under the head
'pain and suffering' is inadequate and the same has to be
enhanced by another Rs.75,000/-. Since the right leg of
the claimant is amputated above knee, the marriage
prospects appears to be blurred. It is submitted at bar
that the claimant is still unmarried. This Court is of the
view that the compensation of Rs.25,000/- awarded under
the head of loss of marriage prospects is grossly
inadequate and compensation of Rs.3,00,000/- is awarded
under the said head.
15. It is also noticed that, no compensation is
awarded under the head of loss of amenities. It is not in
dispute that claimant was aged about 22 years, he lost his
right leg above knee. Under the circumstances, the
compensation of Rs.2,00,000/- is awarded under the head
of loss of amenities as he would be deprived of many
things in life because of amputation of right leg above
knee.
16. Under the circumstances, the compensation
payable to the claimant would be as under:
Heads Amount awarded Amount awarded
by Tribunal by this Court.
Injury, pain and Rs. 50,000/- Rs. 1,25,000/-
suffering
Medical expenses Rs.2,65,000/- Rs. 2,65,000/-
Incidental Rs. 10,000/- Rs. 10,000/-
expenses
Loss of earning Rs.4,32,000/- Rs.12,85,200/-
capacity
Loss of marriage Rs. 25,000/- Rs. 3,00,000/-
prospects
Loss of amenities - Rs. 2,00,000/-
Total Rs.7,82,000/- Rs. 21,85,200/-
Thus, the appellant-claimant is entitled to the
compensation of Rs.21.85.200/- and there shall be an
enhancement of Rs.14,03,200/- (Rs.21,85,200-
Rs.7,82,000) with interest at 6% p.a. from the date of
petition till its realisation.
17. Hence, the following:
ORDER
i) Appeal is allowed in part.
ii) The Judgment and Award dated
08-03-2011 passed by the Tribunal in MVC
No.373/2009 is modified.
iii) The appellant-claimant is entitled to
enhanced compensation of Rs.14,03,200/-
(Rs.21,85,200-Rs.7,82,000). The enhanced
compensation shall carry interest at the rate of
6% p.a., from the date of petition till
realization.
iv) The Insurance Company is directed to
pay entire compensation along with interest
within a period of eight weeks from the date of
receipt of copy of this Judgment.
v) Amount in deposit, if any, be
transmitted to the Tribunal.
Sd/-
JUDGE
tsn*
