Karnataka High Court

The Manager vs Sri Krishnappa @ Krishnamurthy @ ... on 13 June, 2022

Bench: Hanchate Sanjeevkumar

                          1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF JUNE, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

               M.F.A.NO.635/2010 C/W
              M.F.A.NO.1975/2010 (MV)

IN MFA NO.635/2010

BETWEEN:

KRISHNAPPA @
KRISHNAMURTHY @ KITTI,
S/O RANGAPPA,
AGED ABOUT 24 YEARS,
OCC:-NIL, (LORRY DRIVER),
RESI:-340, DASARAHALLI, 3RD MAIN,
BANGALORE.
                                         ... APPELLANT
(BY SMT. M.C. UMADEVAMMA, ADVOCATE)

AND:

1.     B. SHIVKUMAR,
       S/O BALARAMASHETTY,
       AGE;MAJOR, OLD RMS ROAD,
       ARASIKERE TALUK,
       HASSAN DIST.,

2.   THE MANAGER,
     ORIENTAL INSURANCE COMPANY LTD.,
     44/45, LEO SHOPPING COMPLEX,
     RESIDENCY ROAD, BANGALORE.
                                  ... RESPONDENTS
(BY SMT. HARINI SHIVANAND, ADVOCATE FOR R2
APPEARING THROUGH V/C,
R1-NOTICE DISPENSEDWITH V/O 12-04-2011)
                           2


     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT    AGAINST     THE    JUDGMENT    AND    AWARD
DATED:02.11.2009 PASSED IN MVC NO.4722/2007 ON
THE FILE OF I ADDITIONAL SCJ AND MACT, BANGALORE
PARTLY   ALLOWING      THE   CLAIM   PETITION   FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

IN MFA NO.1975/2010

BETWEEN

THE MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE, NO.44/45,
LEO SHOPPING COMPLEX,
RESIDENCY ROAD, BANALORE-25.
                                  ...APPELLANT
(BY SMT. HARINI SHIVANAND, ADVOCATE
APPEARING THROUGH V/C)

AND:

1.     SRI. KRISHNAPPA @
       KRISHNAMURTHY @ KITTI,
       S/O RANGAPPA, 25 YEARS,
       LORRY DRIVER, 340,
       DASARAHALLI, 3RD MAIN,
       BANGALORE.

2.   SRI. B. SHIVA KUMAR,
     S/O SRI. BALARAMASHETTY, MAJOR,
     OLD RMS ROAD, ARASIKERE TQ.
     HASSAN DISTRICT.
                                   ...RESPONDENTS
(BY SMT. M.C. UMADEVAMMA, ADVOCATE FOR R1,
SMT. SUNITHA R. ADVOCATE FOR M/S NAG ASSOCIATES
FOR R2)

     THIS M.F.A FILED U/S 173(10 OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:02.11.2009 PASSED
                                 3


IN MVC NO.4722/2007 ON THE FILE OF I ADDITIONAL SCJ
& MACT, BANGALORE, AWARDING A COMPENSATION OF
RS.5,32,000/- WITH INTEREST A 6% P.A. FROM THE DATE
OF FILING OF PETITION TILL REALISATION AND ETC.,

     THESE M.F.As. COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

MFA No.635/2010 is filed under Section-173(1) of

the Motor Vehicles Act, 1988, (hereinafter referred to as

'MV Act' for brevity) by the appellant-claimant challenging

the judgment and award dated 02.11.2009, passed in MVC

No.4722/2007, on the file of Motor Accident Claims

Tribunal, Bengaluru, (hereinafter referred to as 'the

Tribunal' for brevity) seeking enhancement of

compensation.

2. MFA No.1975/2010, is filed by the appellant-

insurance company challenging the aforesaid judgment

and award passed by the Tribunal, questioning the liability.

Brief facts:

3. On 06.12.2006, at about 3.30 a.m., the

claimant was parking a lorry to the side of Dabaspet gate

to go to Bangalore, the driver of another lorry bearing

registration No.KA-13-3011, drove the same in high speed

in a rash and negligent manner and dashed against the

claimant, causing him grievous injuries viz., fracture of

both bones of right leg and damage of urethra. Thereafter

the claimant was admitted to hospital and took treatment

for the injuries suffered and was operated for the injuries.

4. Hence, a claim petition was filed by the

claimant under Section-166 of the M.V. Act, claiming

compensation for the injuries sustained in the accident.

The Tribunal on appreciating the materials on record,

allowed the petition in part, and awarded a compensation

of Rs.5,32,000/-, along with interest at 6% per annum

from the date of petition till the date of deposit. The

Tribunal held insurance company, liable to pay the

compensation.

MFA No.635/2010:

5. The learned counsel for the appellant-claimant

submits that considering the nature of injuries sustained

by the claimant the quantum of compensation awarded by

the Tribunal is meager one and the same is required to be

enhanced. Further, submitted that the claimant had

sustained grievous injuries as follows:

      i)     Fracture of pelvic,
      ii)    Urethra facture,
      iii)   Rupture of urinary bladder,
      iv)    Fracture of superior and interior rami on left
             side hip pelvis,
      v)     Fracture of superior rami on right side hip,
      vi)    Fracture of lower jaw, lost two teeth in upper

and three teeth in lower jaw and severe head injury.

6. As a result of the injuries suffered, he is not

able to do normal routine and not able to pass urine

normally and further submitted that the claimant was aged

21 years at the time of the accident and as a result of the

accident, his entire life was saddened because of fracture

to pelvic and urinary bladder damage, his marriage

prospects is lost and he is not able to lead normal life and

his life expectancy is also reduced. Therefore, prayed to

allow the appeal by enhancing the compensation.

7. The compensation awarded by the Tribunal is

as follows:

 Medical Expenses                              :   Rs.    16,000/-
 Loss of Income                                :   Rs.   3,88,000/-
 Pain and Sufferings                           :   Rs.    30,000/-
 Loss        of   happiness   and       future :   Rs.    30,000/-
 amenities
 Loss of income during the treatment :             Rs.    24,000/-
 period
 Incident expenses                             :   Rs.    24,000/-
 Loss of marriage prospects                    :   Rs.    10,000/-
 Loss of expectancy of life                    :   Rs.    10,000/-
 Removal of implants                           :   Rs.    10,000/-
                                    TOTAL :        Rs. 5,32,000/-

8. The accident has occurred in the year 2006

and the claimant was a lorry driver and was earning a sum

of Rs.4,000/- per month. However, the Tribunal has held

the income of the claimant at Rs.3,000/-, which is a

meager amount, and accordingly loss of earning due to

disability at Rs.3,88,000/-, which is on lesser side. Further,

submitted that the claimant is not able to do any work as

on date and due to the nature of injuries sustained, there

is 100% functional disability. But the Tribunal has only

taken 60% of functional disability which is not correct. The

same is needed to be held 100% considering the nature of

injuries sustained. Further, submitted that the claimant is

not able to pass urine normally and it is always by

inserting a pipe and it is causing inconvenience, discomfort

and he cannot do any work and carry out profession of

driving. Therefore, submitted that the compensation

amount is required to be enhanced and also on all other

heads.

MFA NO.1975/2010:

9. On the other hand, the learned counsel for the

appellant - insurance company in MFA No.1975/2010

submitted that there is no clarity from the evidence on

record that who is the injured person because the name of

injured person is stated differently in all places in the

medical records, as Krishna Murthy or Krishna Kumar or

Krishna or Kitty s/o. Rangappa and in some other records

it is mentioned as Krishnappa s/o. Rangappa. Therefore,

the identification of the claimant is not definite and name

further submitted that the documents evidence produced

by the claimant are manipulative in nature. Further

submitted that the age of claimant was shown as 22 years

as on the date of the accident, but the medical records and

discharge summary and case-sheet the patients records

shows that the age of the claimant was 35 years.

Therefore, there is difference in mentioning the age of the

claimant. Therefore, submitted the really injured is not the

claimant herein. Hence, suspected the evidence rendered

by the claimant and submitted that the documents

produced are manipulated. Therefore, prays for allowing

the appeal filed by the insurance company by dismissing

the appeal filed by the claimant, by setting-aside the

judgment and award passed by the Tribunal.

10. Regarding the submissions made by the

learned counsel appearing for the insurance company that

there is difference in mentioning the name of the injured/

claimant and also the age are concerned, which are

manipulative in nature, this Court once again appreciated

the evidence on record. It is borne out from records that in

some of the medical bills enclosed as Exhibit-P9 and

medical prescription slips, Exhibit-P10 in some places

claimants name is shown as Krishna and in some places it

is shown as Krishna Murthy. Therefore, just because there

is minor difference in mentioning the names, the medical

bills/receipts cannot be doubted. The name of the claimant

i.e., Krishna Murthy may be Krishna also. Moreover it is

pertinent to mention that when the claimant had sustained

injuries and was admitted in the hospital, then he has to

depend upon his family members or attendant. Therefore,

who were attending the claimant during the treatment

whatever they could say to the medical shop they wrote

the same on the medical receipts / bills. Therefore, just

because there is a minor discrepancy in mentioning the

name either as Krishna or Krishna Murthy it cannot be said

to be manipulative one.

11. Further, considering the submissions made by

the counsel for the appellant - insurance company that in

Exhibit-P13, inpatient record, in the Form for taking

consent for surgery, the person who signed is one

Chittappa stating to be the father of the claimant - Krishna

Murthy. But the claimant name is Krishna Murthy,

S/o.Rangappa. Therefore, based on this, the insurance

company has created doubt in its mind, whether the real

name of the claimant is Krishna Murthy. But upon perusing

the records the name mentioned as Krishna Murthy S/o.

Rangappa but Exhibit-P13, inpatient record, in the Form

for taking consent for surgery, either may be attendant or

may be other family members. It is quite natural

considering the practical happening in the hospital that

whenever a patient is in a serious condition requiring

emergent medical help or surgery is required, the Doctors

/ Hospital Authorities will take signature in the consent

form. It may be the attendant of the patient they can put

their signature. It need not always be the patient himself

or his father/mother or wife. The mentioning as father in

the said consent from is written by the hospital authorities.

The hospital authorities do not want to know the

relationship between the patient and the person signing in

the consent form. Therefore, on that emergency situation

there might have been some discrepancy that cannot be

said to be fatal to state that the claimant is different and

the injured person is different.

12. Upon perusing the other medical records as

produced by the claimant before the Tribunal, the name is

clearly stated as Krishna Murthy and in some places

mentioned as Krishna. Therefore, once again appreciating

all the evidences it cannot be said that the records are

manipulative and whatever contentions have been taken

by the insurance company in this regard are all

misconceived one and cannot be accepted.

13. Further, considering the submissions made by

the learned counsel for the insurance company regarding

the mentioning of the age of the claimant in the petition,

the age of the claimant is stated as 21 years old, but in the

medical records maintained by the hospital i.e., discharge

summary, case-sheet, patients records and also in the

medical bills and records, the age is mentioned as 35

years. Therefore, on this account also the insurance

company is creating a doubt in its mind regarding the age

of the claimant. As it is true upon perusing the medical

records above stated, the age of the claimant was 35

years, in the patient records, whatever was stated by the

attendant, that age is to be mentioned in the record. That

always cannot be relied as true age. When the claimant is

able to produce any other evidence regarding proof of age

that can be considered.

14. In the present case, when these type of

discrepancies found regarding the age of the claimant then

other documentary evidences can be perused and in the

present case the claimant has produced the Driving

License as per Exhibit-P11 and as per this Driving License,

Exhibit-P11, the date of birth of the claimant was shown as

02.01.1985. This driving license is issued by the statutory

authority in which the date of birth is mentioned as

02.01.1985. Therefore, this can be accepted as proof of

the age of the claimant. The accident has occurred in the

year 2006 during the month of December. Therefore, as on

the date of the accident, the claimant was aged 21 years

old. Therefore, the contention of the insurance company

that the claimant was aged 35 years old cannot be

accepted. For the reason that the claimant has produced

authentic evidence, viz., Driving License, Exhibit-P11.

Therefore, the age of the claimant at the time of accident

was 21 years.

15. The appellant - insurance company except the

above stated grounds stated regarding there is

manipulation in respect of mentioning of age and name

there are no other grounds canvassed by the insurance

company. While considering the submissions made by the

counsel for the claimant for seeking enhancement of

compensation the nature of injuries sustained, the

functional disability, the occupation of the injured and

other factors are to be considered.

16. PW-2 is the Doctor who has given treatment to

the claimant in Victoria Hospital at Bangalore. He has

stated that the claimant who met with an Road Traffic

accident on 06.12.2006 was admitted in Victoria Hospital

Bangalore after giving first aid treatment at Dabaspet

where the accident had taken place. From the evidence of

PW-2 Doctor, it is stated that the claimant had required

necessary surgeries. PW-2, Doctor at para-4 of his

evidence has stated as follows:

"4. Subsequently, patient failed to void due to recurrent stricture, for that again advised him for admission shortly. He is on regular follow up till date. I have recently examined Mr.Krishnamurthy on 10.07.2009 for the following problems:

1. Unable to void via Naturalis satisfactorily,

2. Loss of libido,

3. repeated operation related complications,

4. Scar tenderness,

5. difficulty in walking,

6. on and off fever with weakness"

17. Therefore, from the evidence of PW-2, Doctor

as discussed above, the claimant is not able to discharge

his daily routine in normal way and he is always dependent

upon attendant as advised by the Nephrology department

and experts. There is no effective cross-examination

regarding the injuries sustained and disability occurred to

the claimant. PW-2 Doctor has stated that the claimant has

suffered 120% of permanent disability. Therefore,

considering the nature of injuries sustained, the amount of

compensation awarded towards 'Injury, Pain and

Suffering' at Rs.30,000/- is meager and it is accordingly

enhanced to a sum of Rs.1,00,000/-.

18. The Tribunal has awarded Medical expenses in

a sum of Rs.16,000/- based on the medical bills and

receipts produced as per Exhibits-P9 and P10, which is

found to be correct and as per record. Hence, there is no

need to make any disturbance in this regard.

19. The claimant was aged 21 years and was a

lorry driver by profession. In some of the medical records

the avocation of the claimant is mentioned as coolie.

Whether the claimant was working as a lorry driver or as a

coolie before the accident that would not make any

difference in assessing the notional income of the claimant.

In the absence of proof regarding income, as per the chart

of Karnataka State Legal Services Authorities, since the

accident has occurred during December'2006, a notional

income of Rs.4,000/- per month is taken. The appropriate

multiplier applicable as per the judgment of the Hon'ble

Supreme Court, in the case of Smt.Sarla Verma &

Others. Vs. Delhi Transport Corpn And Another

reported in AIR 2009 SC 3104, is '18', since the

appellant was aged 21 years at the time of accident. As

discussed above, PW-2 Doctor has stated that the claimant

has suffered 120% of permanent disability to the parts of

the body and came to the opinion that the claimant

suffered 60% permanent disability to the whole body. The

Tribunal has held the functional disability at 60% by

applying the evidence of PW-2, Doctor. Therefore, the

Tribunal has not committed any error in recognising the

percentage of functional disability which is as per the

evidence of Doctor, PW-2. Therefore, the compensation

under the head 'Loss Of Future Earning Capacity' is

recalculated and quantified as follows:

Rs.4,000 x 60/100 x 18 x 12 = Rs.5,18,400/-

20. The Tribunal has awarded a sum of

Rs.24,000/- towards 'Loss Of Earning During Laid Up

Period' by taking income at Rs.3,000/- per month and

calculating the laid up period for eight months. But as

stated above, the notional income is taken at Rs.4,000/-

per month. Therefore, a sum of Rs.32,000/- (Rs.4,000 x

8) is awarded towards under the head 'Loss Of Earning

During Laid Up Period'.

21. The compensation awarded by the Tribunal

under the head 'Loss Of Future Amenities In Life' at

Rs.30,000/-, is not sufficient and is on a lower side and the

same requires to be enhanced. Accordingly, it is enhanced

to Rs.60,000/-.

22. Further, the compensation awarded by the

Tribunal under the head 'Incidental Charges' viz., Food,

conveyance, etc., at Rs.24,000/-, is meager one and the

same requires to be enhanced. Accordingly, it is enhanced

to Rs.30,000/-.

23. Further, the Tribunal has awarded a

compensation of Rs.10,000/- each under the head 'loss of

marriage prospects and loss of expectancy of life.

Considering the nature of injures and disability occurred to

the claimant the entire marriage prospects of life is

vanished and expectancy of life is lost atleast to some

extent. Therefore, the same is required to be accordingly

compensated. Accordingly, a sum of Rs.50,000/- is

awarded under the head 'loss of marriage prospects'

and 'loss of expectancy of life' together.

24. Further, the compensation awarded by the

Tribunal under the head 'Removal of Implants' at

Rs.10,000/-, is on lesser side. Considering the nature of

injuries sustained and future medical expenses, including

removal of implants and fixation if any, accordingly, a sum

of Rs.30,000/-, under the said head.

25. Hence, the appellant is entitled for a total

enhanced compensation, under various heads as follows:

Pain, Injuries And Suffering : Rs. 1,00,000/-

Incidental Expenses                      :   Rs.    30,000/-
Medical Expenses                         :   Rs.    16,000/-
Loss of earnings during laid of period   :   Rs.    32,000/-
(Rs.4,000 x 8 months)

Loss of future earning capacity          :   Rs.   5,18,400/-
(Rs.4,000 x 60/100 x 18 x 12)

Loss of Amenities In Future Life         :   Rs.    60,000/-
Loss of Marriage Prospects               :   Rs.    25,000/-
Loss Of Expectancy Of Life               :   Rs.    25,000/-
Removal of Implants                      :   Rs.    30,000/-
                               TOTAL :       Rs. 8,36,400/-

26. Therefore, the appellant is awarded a total

compensation of Rs.8,36,400/- as against the

compensation awarded by the Tribunal at Rs.5,42,000/-.

Hence, the appellant is entitled for an additional

compensation of Rs.2,94,400/- (Rs.8,36,400 -

Rs.5,42,000), along with interest at 6% per annum from

the date of filing of the petition till deposit.

27 . Accordingly, I pass the following:

ORDER

i. MFA No.635/2010 filed by the appellant-

claimant is allowed in part.

ii. MFA No.1975/2010 filed by the appellant-