Karnataka High Court
Mr Vishnu Vijayan vs Mr Nanda Kishor on 22 June, 2022
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.4999/2017 (MV-I)
BETWEEN:
MR. VISHNU VIJAYAN,
S/O VIJAYAN, AGED 25 YEARS,
R/AT HOUSE NO.695,
DODDA KOPPALA HOUSE,
FISHERIES ROAD,
SOMESHWARA VILLAGE & POST,
MANGALURU D.K. DISTRICT
PIN-575023.
... APPELLANT
(BY SRI. RAVI SHANKAR SHASTRY G., ADVOCATE)
AND:
1. MR. NANDA KISHOR,
S/O BABU MOOLYA,
AGED 43 YEARS,
R/AT:MARNABAL HOUSE,
SAJIPA MUNNUR VILLAGE & POST,
BANTWAL TALUK, D.K. PIN-574219.
2. THE NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE: BHARATH BUILDING,
P.M.RAO ROAD, HAMPANKATTA,
MANGALURU, REPRESENTED BY ITS
DIVISIONAL MANAGER,PIN-575001.
... RESPONDENTS
(BY SRI. S.V. HEGDE MULKHAND, ADVOCATE FOR R2,
NOTICE TO R1-DISPENED WITH IN TERMS OF MEMO
FILED DATED:22/06/2022)
2
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:13.03.2017 PASSED IN MVC NO.111/2016 ON THE
FILE OF THE MACT, I ADDITIONAL SENIOR CIVIL JUDGE,
MANGALURU D.K. PARTLTY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the
appellant/claimant challenging the judgment and
award dated 13.03.2017 in MVC.No.111/2016 passed
by MACT and I Addl. Senior Civil Judge, Mangaluru,
D.K.
2. Brief facts of the case are as under:
On 19.9.2015 the claimant along with his friend
Karthik had been to Farangipete to attend the
Ganeshothsava procession, after attending the said
procession, he was proceeding towards B.C Road, by
walk on a one way road side, that on 20.9.2015 at
about 1.00 a.m., when they reached at Maripalla of
Pudu Village, at that time, a Alto car bearing
Reg.No.KA-19-Z-9040 driven by its driver came in
high speed in a rash and negligent manner and
dashed to the claimant, due to which, the claimant
has sustained grievous injuries. Immediately after the
accident, he has been shifted to Father Muller's
Hospital, Thumbe, after first aid treatment again, he
has been shifted to Father Muller's Hospital
Kankanady, Mangalore, admitted as inpatient from
20.9.2015 to 7.10.2015 and discharged from the
hospital with an advise to take complete bed rest.
3. The claim petition was filed under Section
166 of MV Act by the appellant/claimant for seeking
compensation. The Tribunal has partly allowed the
claim petition and awarded compensation of
Rs.3,42,387/- with interest at 6% p.a., from the date
of petition till the date of realization. Being aggrieved
by the same, the present appeal is filed before this
Court.
4. Learned counsel for the appellant/claimant
submitted that the amount of compensation awarded
under each head is on the lesser side. Therefore,
prays for enhancement of compensation. Further
submitted that the appellant was earning Rs.16,000/-
per month as he was working as an electrician, but
the Tribunal has taken the notional income of the
appellant only at Rs.6,000/- per month. Therefore,
prays for enhancement of compensation.
5. On the other hand, learned counsel for
respondent No.2-Insurance Company submitted that
the amount of compensation awarded under each
head is correct. Further submitted that the notional
income of the appellant taken by the Tribunal at
Rs.6,000/- per month is correct, since the Tribunal
has observed that the employer who is examined as
P.W.3 and Ex.P.9 - salary certificate cannot be
believed, because the employer-P.W.3 has not helped
the appellant/claimant to prove that he is an electrical
contractor. Accordingly, the Tribunal has taken the
notional income of the appellant at Rs.6,000/- per
month, which is correct. Therefore, prays for dismissal
of the appeal as the quantum of compensation
awarded by the Tribunal is correct one.
6. The Tribunal has awarded the
compensation under various heads as follows:
1 Pain and Sufferings Rs. 72,000-00
2 Attendant charges, food and extra Rs. 9,700-00
nourishing & conveyance etc:
3 Medical expenses Rs. 1,41,967-00
4 Loss of income Rs. 18,000-00
5 Disability and future prospectus Rs. 90,720-00
6 Future Treatment Rs. 10,000-00
TOTAL Rs. 3,42,387-00
7. Ex.P3 is the wound certificate, which
proves the fact that the appellant had suffered the
following injuries:
1. C6-C7 fracture dislocation (Asia-E)
2. Type 1 open fracture of both bone of right leg.
3. Extensor carpi ulnaris partial tear (musculo-
tendinous junction)-left forearm.
4. Undisplaced fracture of third rib-right side.
5. Laceration 6x3cm over the extensor zone 7 over
radial aspect-left upper limb.
6. Laceration 8 x 4 cm over the extensor zone 8
partial tear of ECU left upper limb.
7. Multiple abrasion over the extensor zone 8-left
upper limb.
8. The amount of compensation of
Rs.72,000/- awarded under the head "pain and
sufferings" is correct, considering the nature of
injuries sustained by the appellant. The amount of
compensation awarded by the Tribunal at
Rs.1,41,967/- under the head "medical expenses" is
as per the medical bills produced. Therefore, the same
is kept in tact. The Tribunal had not awarded any
compensation under the head "loss of amenities" and
the same is to be awarded. The Tribunal has taken the
national income of the appellant/claimant at
Rs.6,000/- per month, which is on the lesser side.
Considering the year of accident occurred in the year
2015, the notional income is taken at Rs.9,000/- per
month as per the Notional Income Chart recognized
by the Karnataka State Legal Services Authority. Even
though, the appellant had stated that he was earning
Rs.16,000/- per month and produced Ex.P.6-salary
certificate, employer-P.W.3 has not supported the
evidence of the appellant/claimant to prove that he is
an electrical contractor, in this regard, the Tribunal
has taken the meager income of Rs.6,000/- per
month. Therefore, notional income of Rs.9,000/- is to
be taken, as discussed above. Considering the nature
of injuries sustained by the appellant, the appellant
had suffered fracture of both bones of right leg and C6
and C7 and fracture of dislocation and other injuries,
which injuries are causing restriction of movement of
hand as well as leg. Even though, the doctor-P.W.2 is
not a treating doctor, but he is a qualified doctor had
stated that the appellant has suffered 25% of
permanent physical disability towards the particular
limb. The Tribunal has considered only 7% of
permanent physical disability, but considering the
nature of injuries sustained by the appellant, the
functional disability is not a mathematical calculation,
but it has to be considered along with the avocation of
the injured as per the principles of law laid down in
the case of Raj Kumar Vs. Ajay Kumar and
Another reported in (2011) 1 SCC
343. Therefore, 10% of functional disability is to be
taken into consideration, considering the fact that the
work of electrician requires more physical strength by
standing on the ladder or stool and requires
movement of leg and hand. Therefore, 10% of
functional disability is to be taken into consideration.
The appellant was aged 24 years. Therefore, the
appropriate multiplier is "18" as per the principles of
law laid down in the case of Smt.Sarla Verma &
Others. Vs. Delhi Transport Corporation
And Another reported in Air 2009 SC 3104.
Therefore, loss of future earning capacity due to
disability is calculated and quantified as follows:
Rs.9,000/- x 10% x 18 x 12= Rs.1,94,400/-
9. Further the Tribunal has awarded only
Rs.9,700/- towards "attendance charges, food and
extra nourishing and conveyance etc.," which is on the
lesser side. The appellant was admitted in the hospital
as inpatient for a period of 18 days and was
constrained to go to follow up treatment for several
times. Therefore, considering all these aspects under
the head "attendance charges, food and extra
nourishing and conveyance etc.," a sum of
Rs.20,000/- is awarded. The amount of
compensation awarded under the head "medical
expenses" is as per the medical bills produced.
Therefore, there is no need to make interference by
this Court. Further the appellant is entitled for
compensation under the head "loss of income during
laid up period" at Rs.27,000/- (Rs.9,000/- x 3
months). The Tribunal has granted a sum of
Rs.10,000/- towards "future treatment", which is on
the lesser side. Therefore, same is enhanced to
Rs.20,000/-. The Tribunal has not awarded any
compensation towards "loss of amenities", but
considering the nature of injuries sustained by the
appellant and even though, the appellant might have
suffered occupational disability, but apart from that
the appellant is facing life condition disabilities and
must face difficulties in life viz., discomfort,
inconvenience in life, loss of enjoyment and mental
agony in life. Accordingly, a sum of Rs.40,000/- is
awarded under the head "loss of amenities".
10. Thus, the appellant/claimant is entitled to
the compensation as follows:
1 Pain and Sufferings Rs. 72,000-00
2 Attendant charges, food and extra Rs. 20,000-00
nourishing & conveyance etc:
3 Medical expenses Rs. 1,41,967-00
4 Loss of income Rs. 27,000-00
5 Disability and future prospectus Rs. 1,94,400-00
6 Future Treatment Rs. 20,000-00
7. Loss of amenities Rs. 40,000-00
TOTAL Rs. 5,15,367-00
11. The Tribunal has awarded compensation of
Rs.3,42,387/-, but the appellant/claimant is entitled
to total compensation of Rs.5,15,367/-. Hence, the
appellant is entitled to enhanced compensation of
Rs.1,72,980/- (Rs.5,15,367/- - Rs.3,42,387/-).
Therefore, the appellant/claimant is entitled to
enhanced compensation of Rs.1,72,980/- along with
interest at the rate of 6% per annum from the date of
petition till the date of realization.
12. Accordingly, I proceed to pass the
following:
ORDER
Appeal is allowed-in-part.
The impugned judgment and award dated
13.03.2017 in MVC.No.111/2016 passed by MACT and
I Addl. Senior Civil Judge, Mangaluru, D.K., is
modified to the extent that the appellant/claimant is
entitled to enhanced compensation of Rs.1,72,980/-
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
