Karnataka High Court
Sri K Gangadhar vs Sri K Raghupathi on 23 March, 2022
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.2398 OF 2020 (MV)
BETWEEN:
SRI K.GANGADHAR
S/O.CHANNARAYAPPA
AGED ABOUT 32 YEARS
RESIDING AT:14-65
ALAKUPPAM VILLAGE
GANGAVARAM MANDAL
CHITTOR DISTRICT
ANDHRA PRADESH - 517 432 ... APPELLANT
(BY SRI JAGADISH G.KUMBAR FOR
SRI GOPALKRISHNA N., ADVOCATES)
AND:
1. SRI K.RAGHUPATHI
S/O.KRISHNAN
MAJOR
RESIDING AT
VILLAGE & POST: MANESAR
DISTRICT: GURGOAN
HARYANA STATE - 122 051
2. THE NATIONAL INSURANCE
COMPANY LIMITED
REGIONAL OFFICE
SHUBARAM COMPLEX
M.G.ROAD
BENGALURU - 560 001
REP.BY ITS MANAGER ... RESPONDENTS
(BY SRI ASHOK N.PATIL, ADVOCATE FOR R-2;
NOTICE TO R-1 IS DISPENSED WITH)
---
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THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
13.11.2018 PASSED IN MVC NO.7066/2016 BY XXI
ADDITIONAL SCJ AND XIX ACMM, MEMBER-MACT,
BENGALURU & ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the claimant challenging
the judgment and award passed by XXI Additional Small
Causes Judge and the Motor Accident Claims Tribunal,
Bengaluru (for short 'the tribunal') in MVC.No.7066/2016
dated 13.11.2018. This appeal is founded on the premise of
inadequacy of compensation.
2. Though this matter is listed for admission, with
consent of learned counsel on both sides, matter is taken
up for final disposal.
3. Parties to the appeal shall be referred to as per
their status before the tribunal.
4. Brief facts of the case is as under:
On 21.02.2016 at about 7.30 p.m., while the claimant
was standing on the side of the road near NH-69,
Gangavaram Mandal, Chittoor District, Andhra Pradesh, a
lorry bearing registration No.HR-55-G-3073 driven by its
driver came with high speed in a rash and negligent
manner so as endanger human life and safety, dashed
against the claimant, due to the impact, the claimant fell
down and sustained multiple injuries which are grievous in
nature. Thereafter, the claimant was shifted to R.L.Jalappa
Hospital, Kolar where he underwent surgery for fracture
and injuries. Due to the accident, the Police have registered
a criminal case against the driver of offending lorry as
mentioned above.
5. As on the date of occurrence of accident, the
claimant was aged 28 years and he was working as
computer mechanic and earning monthly income of
Rs.20,000/-. It is stated that due to the injuries sustained
in the accident, the claimant is permanently disabled and
he is unable to carry out work and profession as he was
able to do prior to the occurrence of accident. It is further
stated that due to this accident, he has sustained loss of
future earning capacity which has diminished his ability to
work for higher income.
6. On service of notice, respondent No.1-owner of
the vehicle remained absent and he was placed ex parte.
Respondent No.2-Insurance Company has filed his
objection statement denying the claim made by the
claimant and pleaded that the offending vehicle i.e. lorry
has been falsely implicated in the case by the Police
colluding with the claimant only with malafide intention to
make wrongful gain by the claimant. On this basis, he has
sought for dismissal of claim petition. Based on the
pleadings, the tribunal has framed relevant issues for
consideration.
7. In order to substantiate the issues and to establish
the case, the claimant got himself examined as PW.1 and
also examined the Doctor as PW.2 and got marked
documents as Exs.P1 to P11, whereas, the contesting
respondents examined its official as RW.1 and got marked
documents as Exs.R1 and R2.
8. After considering the evidence both oral and
documentary and after hearing the parties, the tribunal has
awarded compensation of Rs.4,46,521/- with interest at 6%
p.a. from the date of petition till deposit. The liability was
fixed on respondent No.2-Insurer. Being dissatisfied with
the compensation awarded, the appellant-claimant is before
this Court seeking enhancement of compensation.
9. It is the vehement contention of learned counsel
for appellant-claimant that the tribunal has not appreciated
the material evidence both oral and documentary while
passing the impugned judgment and award and has
committed a serious error in awarding meager
compensation there by causing miscarriage of justice to the
claimant. It is further contended that the tribunal has not
awarded any compensation for loss of income during laid up
period, despite the fact that the claimant was inpatient for a
period 32 days and suffered multiple fractures. It is further
contended by the learned counsel for claimant that the
tribunal has erred in not computing the proper income on
the basis of avocation and the Legal Services Authority
chart there by causing miscarriage of justice to the
claimant. It is further contended that the tribunal has not
considered the evidence of Doctor-PW.2 for assessment of
disability which is opined by the Doctor at 21% and taken
disability at 15% which is contrary to the medical evidence
of the Doctor who is expert in his field. Therefore, it
requires interference of this court. Learned counsel
contends that even under other heads, the compensation
awarded by the tribunal is on the lower side. On these
grounds, he seeks to allow the appeal and for enhancement
of compensation.
10. Per contra, learned counsel for respondent No.2-
Insurer vehemently contends that the impugned judgment
and award passed by the tribunal is in accordance with
material evidence both oral and documentary placed before
the tribunal and same does not call for interference by this
Court. He further contends that the tribunal has rightly
awarded the compensation which is commensurate to the
material placed before the tribunal and also taking notional
income as there is no material document and also on the
basis of medical bills. Reasonable compensation is awarded
under loss of amenities which also does not warrant
interference at the hands of this Court. He further
contends that the loss of income during laid up period
cannot be awarded more than what is awarded for the
period of treatment which the claimant was inpatient in the
Hospital for a period of 32 days in the present case. On the
basis of these submissions, he seeks to dismiss the appeal
and confirm the judgment and award passed by the
tribunal.
11. Having heard the learned counsel for the
appellant-claimant and learned counsel for respondent
No.2-Insurer and on perusal of the material evidence
placed before the Court, I am of the opinion that the
claimant is entitled for marginal indulgence in the matter
for enhancement of compensation for the reasons stated
hereinbelow:
(a) It is not in dispute that on 21.02.2016 at 7.30
p.m., while the claimant was standing on the side of the
road near NH-69, a lorry mentioned above came in a rash
and negligent manner and dashed against the claimant who
was just a bystander. In order to substantiate this aspect,
the claimant has produced Exs.P1 to P5 which are the Police
records. Admittedly, neither there is challenge to these
Police records nor it is case of respondents that these
records are fictitious or concocted. The respondent-Insurer
has not produced any contra material before this Court to
disprove criminal prosecution lodged against driver of the
offending lorry and there is no challenge made to the
charge sheet laid by the Police, pursuant to the
investigation and enquiry. Hence, on the basis of there
being no contra material and no challenge, it can be safely
concluded that the driver of the offending vehicle was rash
and negligent in driving the vehicle there by causing
injuries to the claimant in accident.
(b) Now coming to the aspect of avocation and
income of the claimant. Admittedly, no material documents
has been placed before the tribunal or before this Court to
show the proof of income of the claimant, though claimant
has stated that he was working as a computer mechanic
and earning income of Rs.20,000/-. As on the occurrence
of accident, he was aged 28 years. The accident having
occurred in the year 2016, the tribunal has assessed the
income at Rs.9,000/- per month. I am in agreement with
learned counsel for claimant that the income assessed by
the tribunal is on the lower side and same calls for
interference by this Court.
(c) In the absence of any material proof of income by
the claimant, the Courts are left with no alternative but to
make a guess work with regard to the income of claimant
on the basis of his avocation and materials placed before
the Court and the guess work should be a standard guess
work, for which, the Legal Services Authority has prescribed
the notional income chart to be taken where there is no
proof of income. Hence, for the accident year 2016, the
notional income chart prescribes Rs.9,500/- per month as
income. Hence, I deem it appropriate that in the present
case on hand, the income requires to be taken at
Rs.9,500/- per month as against Rs.9,000/- taken by the
tribunal.
(d) The claimant is aged about 28 years as on the
date of occurrence of accident. The appropriate multiplier
would be '17' as per the judgment of the Hon'ble Apex
Court in the case of Sarla Verma (Smt) and others vs.
Delhi Transport Corporation and another reported in
(2009) 6 Supreme Court Cases 121 which has been
rightly adopted by the tribunal. The claimant has got
examined the Doctor as PW.2 who has treated the claimant,
has stated on oath that the claimant has suffered open type
III B communited intra-articular inter condylar fracture of
right femur, comminuted lateral condyle fracture right tibia
and underwent surgeries by means of ORIF + Long LCP
fixation for right distal 1/3rd femur fracture + ORIF with 2cc
screw fixation for right proximal tibia. PW.2-Doctor has
clearly stated in his evidence on oath that the claimant
finds it difficult to stand continuously for a long time and he
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requires one more surgery for removal of implants and he
also requires knee replacement of osteoarthritis.
(e) In the cross-examination of PW.2, it is stated that
the right lower limb of the claimant is shortened by 2 cm.
Therefore, the claimant cannot stand for a long duration
and cannot walk continuously for long distance. The
claimant has to walk with aid. Considering all these aspects,
the Doctor-PW.2 has assessed the physical permanent
disability due to fracture injuries to an extent of 63.79% to
the right lower limb and 21% of the whole body. This
assessment has been made by the Doctor on the basis of
clinical analysis and medical treatment method. It is also
necessary to note that the Doctor has opined that the right
lower limb of the claimant is shortened by 2 cm. thereby
there is limp in the walk, he needs help of others.
Considering all these aspects, the tribunal has assessed the
disability to an extent of 15% as functional disability. I am
in agreement with learned counsel for claimant that when
the Doctor who treated the claimant has clearly opined on
the basis of clinical analysis with regard to functional
disability, the Court should not put itself into the arm chair
of expert and impose its own opinion on disability other
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than what is stated by the Doctor as the Courts are not
expert in the field of medicine.
(f) In the present case on hand, PW.2 being the
Doctor who treated the claimant on the basis of clinical
analysis has stated that the disability is arisen at 21%.
Hence, I do not find any legal infirmity or infraction in the
opinion expressed by the Doctor. The tribunal ought to
have taken 21% as physical permanent disability of the
claimant for future earning capacity. Therefore, the
disability arrived at by the tribunal is not sustainable and
the same has to be taken at 21% as opined by the Doctor.
In view of the above discussions, the claimant is entitled for
the loss of future earning capacity of Rs.4,06,980/-
(Rs.9,500/- x 12 x 17 x 21%) as against Rs.2,75,400/-
awarded by the tribunal.
(g) The claimant has produced 34 medical bills worth
Rs.56,121/- as per Ex.P7. On the basis of the same, the
tribunal has awarded Rs.56,121/- which is on the actual
basis. Hence, I do not find any reason to interfere with the
same as it is based on documents produced by the
claimant.
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(h) Admittedly, the claimant was inpatient for a
period of 32 days in the Hospital where he had taken
treatment and it is apparent on record as stated in the
above paragraphs that he has suffered comminuted
fractures of two types namely, right femur and right tibia.
Therefore, he has undergone multiple fractures to his leg.
Since he was inpatient for 32 days, he would not
immediately get back to his work after discharge from the
hospital and to take rest atleast 3 months pursuant to the
discharge of the claimant to recuperate and gain required
energy to get back to work in the normal course of his
employment as he was prior to the occurrence of accident.
Accordingly, three months + one month is to be taken as
laid up period and in view of increase in the income as
stated above, the claimant is entitled for Rs.38,000/-
(Rs.9,500/- x 4) under the head of loss of income during
laid up period.
(i) Under the head of future medical expenses, no
material has been placed by the claimant or by the Doctor
as what would be the estimated cost for future medical
expenses and the tribunal has awarded Rs.25,000/-
towards future medical expenses. It is however seen that
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in the evidence of Doctor, he has stated that there would
be two more surgeries required for removal of implants and
total knee replacement which is not disputed. Hence, I
deem it appropriate to award Rs.35,000/- under the head
of future medical expenses as against Rs.25,000/-.
(j) Towards conveyance, nourishment and nutritious
food, the tribunal has awarded Rs.25,000/-. Admittedly,
the claimant was inpatient for 32 days on a calculation of
Rs.1,000/- per day. Rs.32,000/- would be reasonable to
award under this head as against Rs.25,000/- awarded by
the tribunal.
(k) Under the head pain and suffering, the tribunal
has awarded Rs.40,000/-, it is seen that the claimant has
undergone multiple fractures and severe traumatic
experience within four walls of the Hospital, which cannot
be compensated with money. However, the same will have
to be reasonable enough to satisfy the claimant as a solace.
Hence, under this head, I deem it appropriate to award
Rs.60,000/- as against Rs.40,000/- awarded by the
tribunal.
(l) Under the head of loss of amenities of life, the
tribunal has awarded Rs.25,000/-. I deem it appropriate to
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award Rs.35,000/- as against Rs.25,000/- awarded by the
tribunal.
(m) In view of the discussions made above and on
the basis of the submissions of learned counsel, the
claimant deserves enhancement of compensation as stated
in the table below:
Heads As awarded by As awarded by
the tribunal this Court
(in Rs.) (in Rs.)
Pain and Suffering 40,000-00 60,000-00
Loss of future 2,75,400-00 4,06,980-00
earnings
Loss of earning
during laid up Nil 38,000-00
period
Future medical
25,000-00 35,000-00
expenses
Medical expenses 56,121-00 56,121-00
Conveyance,
nourishment and 25,000-00 32,000-00
nutritious food
Loss of amenities
25,000-00 35,000-00
of life
TOTAL 4,46,521-00 6,63,101-00
For the aforesaid reasons, I pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The judgment and award passed by XXI
Additional Small Causes Judge and the Motor
Accident Claims Tribunal, Bengaluru in
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MVC.No.7066/2016 dated 13.11.2018, is
modified;
iii) The claimant is entitled for total compensation
of Rs.6,63,101/- as against Rs.4,46,521/-
awarded by the tribunal;
iv) All other terms and conditions stipulated by the
tribunal shall stand intact;
v) The insurer shall pay the enhanced
compensation amount within a period of six
weeks before the tribunal from the date of
receipt of a copy of this judgment, failing
which the interest would accrue at 9% for the
said amount;
vi) The claimant shall not be entitled for interest
for future medical expenses of Rs.35,000/-;
vii) The claimant shall not be entitled for interest
for the delayed period of 315 days as per the
order dated 08.03.2022.
Sd/-
JUDGE
LB
