Sri. Jayasheela Shetty vs Sri. Nagaraj Shetty
2022 Latest Caselaw 7985 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 02ND DAY OF JUNE, 2022

                          BEFORE

      THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

               M.F.A.NO.5487/2017 (MV-I)


BETWEEN:

SRI. JAYASHEELA SHETTY,
S/O SUBBANNA SHETTY,
AGED ABOUT 32 YEARS,
R/O ANGALLI MANE,
YELLUR GOLIHOLE POST,
KUNDAPURA TALUK-576201.
UDUPI DISTRICT.
                                            ... APPELLANT

(BY SRI. NAGARAJ HEGDE, ADVOCATE)


AND:


1.     SRI. NAGARAJ SHETTY,
       S/O SUBBANNA SHETTY,
       AGE MAJOR,
       R/O SRI MOOKAMBIKA NILAYA,
       YELLUR VILLAGE & POST,
       KUNDAPURA TALUK,
       UDUPI DISTRICT-576201.

2.     THE UNITED INDIA INSURANCE CO.LTD.,
       BRANCH OFFICE,
       SRI LAXMI NARASIMHA COMPLEX,
       OPP:KSRTC DEPOT,
                               2



       NH-66, VADERHOBLI,
       KUNDAPURA TALUK,
       UDUPI DISTRICT-576201.
       REP. BY ITS BRANCH MANAGER
                                            ... RESPONDENTS

(BY SRI RAVISH BENNI, ADVOCATE FOR R2,
R1-SERVED)


       THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT     AGAINST      THE     JUDGMENT          AND       AWARD
DATED:17.01.2017 PASSED IN MVC NO.203/15 ON THE
FILE   OF    THE   SENIOR     CIVIL    JUDGE        &   MEMBER,
ADDITIONAL MACT, KUNDAPURA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.,


       THIS M.F.A. COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                     JUDGMENT

       The    present      appeal     is    filed       by   the

appellant/claimant      challenging   the    judgment        and

award dated 17.01.2017 in MVC.No.203/2015 passed

by the Senior Civil Judge and Addl. MACT, Kundapura.

2. Brief facts of the case are as under:

On 07.12.2014 at about 5.30 p.m., the claimant

was a passenger in Autorickshaw bearing

Reg.No.KA-20-C-8826 driven by its driver from

Yalajith side towards Golihole side in a very high

speed and rash and negligent manner, when the said

vehicle reached near Golihole village, Kundapura

Taluk, due to high speed and rash and negligent

manner, the driver lost control over the same and roll

down on the road, due to the said impact, claimant

sustained grievous injuries. Immediately after the

accident, the claimant was shifted to Adarsha

Hospital, Udupi and admitted as an inpatient.

3. The claim petition was filed by the

appellant/claimant seeking compensation. The

Tribunal has partly allowed the claim petition and

awarded compensation of Rs.9,32,970/- with interest

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

deposit. Being aggrieved by the same, the present

appeal is filed before this Court.

4. The learned counsel appearing for the

appellant/claimant submitted that the amount of

compensation awarded by the Tribunal is inadequate

in considering the nature of injuries sustained by the

appellant. Further submitted that from P.W.2 -

doctor's evidence and also from Ex.P.7-disability

certificate, the appellant has completely lost use of his

right hand. Therefore, the appellant had suffered

100% of disability considering his avocation as he was

doing paint and centering work. Therefore, prays to

enhance the compensation.

5. Further submitted that the Tribunal has

taken the income of the claimant at Rs.8,000/- per

month, which is on the lesser side. Therefore, by

considering the higher income per month, the

compensation under the head loss of future earning

capacity is to be enhanced. Further the amount of

compensation awarded under the head "pain and

suffering" and "loss of amenities" are on the lesser

side. Therefore, prays for enhancement of

compensation. Hence, prays to allow the appeal.

6. On the other hand, learned counsel for

respondent No.2-Insurance Company submitted that

the percentage of disability taken by the Tribunal at

35% is correct. As per the evidence of doctor -P.W.2

and also Ex.P.7 - disability certificate, the appellant

had suffered disability at 55% towards his right upper

limb and 5% towards face. Therefore, the whole body

disability is considered at 35%, which is on the higher

side. Further the Tribunal has taken the income of the

appellant at Rs.8,000/- per month is correct

considering the nature of avocation of the appellant,

which needs no interference. Further submitted that

out of the injuries suffered by the appellant, injury

Nos.1 and 4 are only grievous in nature and other

injuries are simple in nature. Therefore, the amount of

compensation awarded under the head "pain and

suffering" and "loss of amenities" are correct.

Therefore, prays for dismissal of the appeal.

7. The Tribunal has awarded the

compensation under various heads as follows:

Pain and sufferings                      Rs. 75,000/-
Medical     expenses,      food     and Rs.1,50,770/-

nourishment, attendant & conveyance charges Los of income during laid up period Rs. 96,000/- Loss of future earning capacity Rs.5,71,200/-

Loss of amenities                             Rs. 40,000/-
                 Total                       Rs.9,32,970/-

8. Ex.P.3 is the wound certificate and the

doctor -P.W.2 had stated the injuries as follows:

"1. Avulsion laceration of 10 c.m. x 4 c.m x bone deep on the right frontal region of scalp with right

sided black eye with C.T. scan showing depressed comminuted fracture of right frontal bone.

2. Reddish abrasion of 4 c.m. x 3 c.m on the right ear.

3. Laceration of 3 c.m., x 2 c.m, x muscle deep on the left cheek.

4. Laceration of 1 c.m x 1 c.m. x muscle deep on the lower lip with underlying fracture of left lower central incisor teeth,

5. Reddish contused abrasion of 6 c.m x 5 c.m. on the right shoulder,

6. Reddish abrasion of 17 c.m., x 11 c.m., on the front of right side of chest,

7. Reddish abrasion of 12 c.m x 7 c.m., on the right forearm

8. Reddish contusion of 4 c.m., x 3 c.m., on the left elbow,

9. Reddish abrasion of 8 c.m., x 5 c.m., on the lower 1/3rd of outer aspect of right thigh,

10. Reddish abrasion of 7 c.m., x 5 c.m. on the right knee,

11. Reddish abrasion of 5 c.m., x 3 c.m., on the left knee"

9. Doctor-P.W.2 had stated that the appellant

had sustained loss of strength of right hand and it has

become completely useless. Even the appellant is not

able to do his day to day normal work. Therefore, the

appellant had suffered disability of right upper limb.

Even though, it appears that physically the appellant

has upper right limb, in fact, he cannot use the right

upper limb completely. Under these circumstances,

the amount of compensation of Rs.75,000/- awarded

under the head "pain and suffering" and Rs.40,000/-

awarded under the head "loss of amenities" is on the

lesser side and the same needs to be enhanced. Even

though, injury Nos.1 and 4 are grievous in nature and

other injuries are simple in nature, but as discussed

above, the fact is that the appellant has lost right

upper limb completely, therefore, it is just and proper

to award compensation of Rs.1,00,000/- towards

"pain and suffering". Further the appellant has lost

right upper limb completely and as per the evidence of

doctor -P.W.2, the appellant is not able to do his day

to day normal work through his right hand, which

caused inconvenience, discomfort and loss of

enjoyment in life. Further, since the appellant has lost

his right upper limb, he has to depend upon other

family members for his daily routine work. Under

these circumstances, the compensation awarded

under the head "loss of amenities" has to be

enhanced. Accordingly, Rs.1,00,000/- is awarded

under the head "loss of amenities".

10. Further the Tribunal had taken the monthly

income at Rs.8,000/- per month. Considering that the

claimant was doing paint and centering work and the

accident has caused in the year 2014 and as per the

notional income recognized by the Karnataka State

Legal Service Authority in the year 2014, the notional

income ought to be taken at Rs.8,500/- per month.

Therefore, while calculating the loss of future earning

capacity, notional income at Rs.8,500/- is taken into

consideration. Further, considering the nature of

injuries sustained by the appellant and as per the

evidence of the doctor-P.W.2 and based on Ex.P.7-

disability certificate, the functional disability at 35%

taken by the Tribunal is found to be correct. P.W.2-

doctor has deposed that the appellant had suffered

55% of permanent disability towards right upper limb

and 5% towards face. Therefore, the whole body

disability taken by the Tribunal at 35% is found to be

correct, which needs no interference. The appellant

was aged 31 years as on the date of the accident.

Ex.P.8 is the Aadhaar Card, which shows the date of

year as 1984 and the age of the appellant would be 30

years as on the date of accident. Therefore, the

appropriate multiplier is "17" as per the principles of

law laid down in the case of Sarla Verma and

Others -Vs- Delhi Transport Corporation and

Another reported in AIR 2009 SCC 3104. Therefore,

the compensation under the head "loss of future

earning capacity" is calculated and quantified as

follows:

Rs.8,500/- x 35/100 x 17 x 12 = Rs.6,06,900/-

11. The Tribunal has awarded compensation of

Rs.1,50,770/- towards "medical expenses, food and

nourishment, attendant and conveyance charges". The

appellant has produced Ex.P.6-medical bills amounting

to Rs.1,27,766/-, but the Tribunal has included food

and nourishment, attendant and conveyance charges

etc., to the medical expenses, but the same has to be

awarded separately. The appellant was admitted in

the hospital for a period of 24 days and the appellant

had taken the follow up treatment. Hence, the

appellant is entitled atleast for Rs.50,000/- towards

"food and nourishment, attendant and conveyance

charges". Accordingly, it is awarded. Further the

Tribunal has awarded a sum of Rs.96,000/- towards

"loss of income during laid up period" by considering

the monthly income at Rs.8,000/- per month for 12

months. Therefore, considering the monthly income at

Rs.8,500/- per month for 12 months, the

compensation under the head "loss of income during

laid up period and treatment period" comes to

Rs.1,02,000/- (Rs.8,500/- x 12).

12. The appellant/claimant is entitled to the

compensation as follows:

Pain and sufferings                           Rs.1,00,000/-
Medical expenses                             Rs. 1,77,766/-

(medical expenses-Rs.1,27,766/- + food and nourishment, attendant & conveyance charges - Rs.50,000/-) Los of income during laid up period Rs.1,02,000/- Loss of future earning capacity Rs.6,06,900/-

Loss of amenities                         Rs.1,00,000/-
                Total                    Rs.10,86,666/-

13. The Tribunal has awarded compensation of

Rs.9,32,970/-, but the appellant/claimant is entitled

to total compensation of Rs.10,86,666/-. Hence, the

appellant is entitled to enhanced compensation of

Rs.1,53,696/- (Rs.10,86,666/- - Rs.9,32,970/-).

Therefore, the appellant/claimant is entitled to

enhanced compensation of Rs.1,53,696/- along with

interest at the rate of 6% per annum from the date of

petition till the date of realization.

14. Accordingly, I pass the following:

ORDER

Appeal is allowed-in-part.

The appellant is entitled to enhanced

compensation of Rs.1,53,696/- along with the rate

of interest at 6% per annum from the date of petition

till the date of realization, in addition to what has been

awarded by the Tribunal.

Draw award accordingly.

No order as to costs.

Sd/-

JUDGE

PB