Karnataka High Court
Sri Janardhan Kumar vs Sri Thanbveer Khan on 31 March, 2022
Bench: Pradeep Singh Yerur
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MARCH 2022
BEFORE
THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR
M.F.A. No.8933 of 2019 [MV-I]
BETWEEN:
SRI JANARDHAN KUMAR
S/O MOHAN KUMAR
AGED ABOUT 23 YEARS
R/AT ITTASANDRA VILLAGE
NANDAGUDI HOBLI
HOSKOTE TALUK
BENGALURU DISTRICT
- 562 114
... APPELLANT
(BY SRI. RAJANNA ADVOCATE)
AND:
1. SRI THANBVEER KHAN
S/O YOUSUF KHAN
AGED ABOUT 32 YEARS
R/AT NO.85
ARALERI VILLAGE
DYAPASANDRA POST
MALUR TALUK
KOLAR DISTRICT-563 130
2. RAJAPPA
MAJOR
R/AT KURBASANAHALLI VILLAGE
HARAGADDE POST
ANEKAL TALUK
2
BENGALURU DIST. 562 106
3. SHRIRAM GENERAL INSURANCE CO.LTD.
NO.5, MONARCH CHAMBERS
3RD CHAMBERS, 3RD FLOOR
INFANTRY ROAD
BENGALURU-560 001
REP. BY ITS MANAGER
... RESPONDENTS
(BY SRI. B.PRADEEP, ADVOCATE FOR R3;
VIDE ORDER DATED 10.03.2022, NOTICE TO R1 AND
R2 DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
26.09.2019 PASSED IN MVC NO. 4832/2016 ON THE FILE OF
THE II ADDITIONAL JUDGE AND ACMM, COURT OF SMALL
CAUSES, BENGALURU (SCCH-13), PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard.
2. This appeal is preferred by the claimant
aggrieved by the impugned judgment and award passed
in MVC No.4832 of 2016 dated 26.09.2019 by the
Additional Small Causes Judge and Motor Accident
Claims Tribunal, Bengaluru (SCCH-13) [for short 'the
Tribunal']. This appeal is founded on the premise of
inadequacy of compensation.
3. Brief facts:
a] On 25.07.2015 at 05.30 p.m., while the
claimant was walking on the extreme left side of the
road near Thirthahalli Tank at Mallegowda Rajanna
Garden, Nandagudi, Ittasandra Road, Nandagudi Hobli,
at that time, a Tata Goods Vehicle bearing registration
No.KA-51/1136 came from Ittasandra towards
Nandagudi in a rash and negligent manner so as to
endanger human life and safety, and having lost control
of the vehicle, the driver dashed against the claimant.
As a result, the claimant fell down on the road side canal
and sustained grievous injuries.
b] Immediately, he was shifted to M.V.J. Hospital,
Hosakote, where he took first aid treatment and later, he
was treated at Koshy's Hospital, Ramamurthy Nagar,
Bengaluru, for better treatment. During the course of
treatment, it was assessed that the claimant sustained
fracture of right shoulder/fracture of right humerus, head
injury poly-trauma, for which the doctors operated on
the right humerus and fixed the implants and treated
other injuries. Thereafter, discharged the claimant and
advised him for periodical check up and follow up.
c] It is the case of the claimant that during the
course of treatment, he has spent an amount of more
than Rs.5,00,000/- and he has undergone severe pain
and mental agony and trauma due to the injuries
suffered as a result of the accident. It is further stated
that the claimant was aged about twenty years as on the
date of the occurrence of the accident and was doing
coolie work under building contractors and earning an
income of Rs.10,000/- per month. Due to the accident
and post-medical treatment for the injuries sustained,
the claimant is unable to do the work as he was able to
do and hence, he has suffered loss of future earning
capacity due to disability. Hence, he filed the claim
petition seeking compensation.
1. On service of notice, respondent Nos.1 and 2, who
are the owners of the offending vehicle, did not appear
before the Tribunal and were placed exparte.
2. Respondent No.3--insurance company appeared
and filed its detailed statement of objections and pleaded
that the offending vehicle was not insured and that, no
such policy was issued to the offending vehicle of
respondent No.1 and that the claimant has falsely
implicated the said vehicle in the alleged accident by
colluding with the owner of the offending vehicle herein.
Further, the respondent/insurer contended inter alia that
the accident occurred due to the negligence of the
claimant while he was walking on the middle of the road
violating the traffic rules and regulations. On the basis
of these pleadings, he sought for dismissal of the claim
petition.
3. On the basis of these pleadings, the Tribunal
framed the relevant issues for consideration.
4. In order to substantiate the issues and to establish
the case, the claimant examined himself as PW-1 and
one doctor as PW-2 along with a witness as PW-3 and
got marked Exs.P-1 to 21 in support of his case, whereas
respondent No.3-insurer examined two witnesses as
RWs-1 and 2 and got marked Exs.R-1 to R7.
5. After hearing the submissions of the learned
counsel and on perusal of the material evidence, both
oral and documentary, the Tribunal awarded
compensation of Rs.11,24,116/- to the claimant along
with interest at six per cent per annum from the date of
the petition till the deposit of the amount, and fastened
the liability on respondent No.3-insurer to deposit the
said amount.
6. Aggrieved by the impugned judgment and award
awarding meager compensation, the claimant is before
this Court seeking enhancement.
7. It is the vehement contention of the learned
counsel appearing for the appellant/claimant that the
Tribunal has erred in awarding meager compensation
and has not applied its mind in considering the material
evidence both oral and documentary and has totally
ignored the avocation and income stated by the claimant
in his affidavit on oath. Thereby, the Tribunal has
committed serious error causing miscarriage of justice to
the appellant-claimant. He further contends that the
Tribunal has erred in not awarding suitable percentage of
disability as stated by PW-2/the doctor. It is further
contended by the learned counsel that no amount of
compensation has been awarded on account of loss of
speech which has been stated by the doctor in his
evidence. It is further contended by the learned counsel
that the Tribunal has erred in not awarding
compensation under the head loss of income during laid
up period. It is also contended that under other heads,
the Tribunal has awarded meager compensation which
requires enhancement. By this submission, the learned
counsel seeks to allow the appeal and consequently,
enhance the compensation.
8. Per contra, learned counsel Sri.B.Pradeep
representing respondent No.3-insurer vehemently
contends that the judgment and award passed by the
Tribunal is in accordance with the material evidence,
both oral and documentary, and on the basis of the
evidence adduced by the doctor/PW-2. Hence, the same
does not call for interference. He further contends that
the award of compensation is just and reasonable and
the Tribunal has taken into consideration the age,
avocation and income and the disability assessed by the
doctor/PW-2 and awarded suitable compensation, which
does not call for interference by this Court. On the basis
of these submissions, he seeks for dismissal of the
appeal and affirm the judgment and award passed by the
Tribunal.
9. Having heard the learned counsel for the appellant-
claimant and the learned counsel for the respondent
No.3-insurer, the points that arise for consideration
before this Court are:
(i) whether the Tribunal has awarded meager
compensation without considering the
material evidence, both oral and
documentary, and the assessment made by
the doctor?
(ii) whether the claimant is entitled for
enhancement of compensation?
10. On careful perusal of the material evidence, both
oral and documentary, and on perusal of the original
records placed before this Court and on hearing the
submissions of the learned counsel for both the parties, I
am of the opinion that the Tribunal has erred in awarding
meager compensation. Thereby, consequently, the
claimant would be entitled to marginal indulgence of
enhancement of compensation for the reasons stated
herein appeal.
11. It is not in dispute that the accident had occurred
on 25.07.2015 at 05.30 p.m. In order to establish that
the accident occurred between claimant and the Tata
goods vehicle/the offending vehicle herein, PW-1 has got
marked Exs.P-1 to 6, being copies of F.I.R., complaint,
charge-sheet, spot Mahazar, IMV report and wound
certificate. All these records are police records and
admittedly, pursuant to investigation and inquiry, the
police have registered a criminal case against the driver
of the offending vehicle, namely the Tata goods vehicle.
12. These police records including the laying of charge-
sheet against the driver of the offending vehicle has not
been challenged either by the driver of the vehicle or by
the respondents herein. No contra material has been
placed before this Court or before the Tribunal to
disprove the laying of the charge-sheet and the police
records placed by the claimant in Exs.P-1 to 6.
Therefore, there being no contra material evidence, and
the challenge made to the charge-sheet, the Tribunal
has rightly come to the conclusion that the Driver of the
offending vehicle was rash and negligent in causing the
accident and the liability has been fixed on him.
13. Coming to the aspect of age, avocation and income
of the claimant, though it is stated by the claimant that
he was working as a Coolie and earning an income of
Rs.10,000/- per month under a building Contractor, no
material evidence has been placed either before the
Tribunal or before this court to substantiate the same.
Hence, there being no material evidence, the Tribunal
has assessed the income at Rs.8,000/- per month as
notional income.
14. In a case where there is no proof of income, the
Court will have to assess the income based on the guess
work and in order to arrive at the guess work, a
standard formula has been laid down by the Legal
Services Authority in preparing a chart as 'notional
income chart' wherein, for the accident of the year 2015,
the notional income chart prescribes Rs.9,000/- per
month as the income to be reckoned per month. In the
case on hand, the Tribunal has assessed the monthly
income at Rs.8,000/- and I am afraid this cannot be
accepted. Hence, I am in agreement with the learned
counsel for the claimant that the same requires
enhancement and accordingly, the monthly income of
the claimant is enhanced to Rs.9,000/- per month.
15. Admittedly, as on the date of the occurrence of the
accident, the injured claimant was aged about 20 years
and the appropriate multiplier applicable in the case on
hand would be '18' as laid down by the Hon'ble Supreme
Court in the case of Sarla Verma vs. Delhi Transport
Corporation [(2009) 6 SCC 121]. The Tribunal has
rightly taken the multiplier of '18' which does not call for
interference.
16. The claimant has got examined the doctor as PW-2,
who has deposed on oath stating that the claimant has
sustained comminuted compound fracture upper end
right humerus, head injury, Brachial Plexus injury of
right upper limb, Contused Lacerated Wound (CLW) of
right shoulder about 10/8" muscles and exposed and
that the claimant was in-patient in Intensive Care Unit
for Open Reduction-Internal Fixation (ORIF) with locking
plates and on clinically examining the claimant, the
doctor has stated that the claimant is unable to lift right
upper limb and right shoulder movements are restricted
along with he being not fully oriented and has mild
speech impairment. Accordingly, the doctor has
assessed the disability of 80% of right upper limb and
30% to the whole body and with mental and speech
disturbance of about 25%. The doctor was cross-
examined, however nothing material has been elicited on
behalf of the insurer, however, on consideration of the
same, the Tribunal has assessed the disability to an
extent of 1/3rd to the whole body and assessed the
disability to an extent of 27%. I do not find any legal
infirmity in the assessment of disability to an extent of
27% towards the whole body by the Tribunal. Hence,
the same is retained.
17. In view of the above, the compensation under the
head of loss of future earning capacity due to
disability would be Rs.5,24,880/- [Rs.9,000/- x 27% =
Rs.2,430/- ; Rs.2,430/- x 12 x '18'], as against Rs.4,66,560/-.
18. Under the head pain and suffering, the Tribunal
has awarded Rs.50,000/-. I do not find any reasons to
interfere with the same. Hence, the same is retained.
19. Under the head conveyance expenses, food,
nourishment and nutrition expenses, the Tribunal
has awarded Rs.50,000/-, which also does not call for
interference. Hence, the same is retained.
20. Towards the medical expenses, the Tribunal has
awarded Rs.4,97,556/- on the basis of the medical
records produced by the claimant at Exs.P-9 and 10,
which also does not call for interference as the same is
on actual medical bills produced by the claimant.
21. Under the head of future medical expenses, the
Tribunal has awarded Rs.30,000/-, which requires
enhancement, since the doctor-PW-2 has stated in his
evidence that the claimant would require one more
surgery for the removal of implants and follow-up
treatment. Hence, he would require an amount of about
Rs.80,000/-. Accordingly, compensation under this head
is enhanced to Rs.50,000/-.
22. It is seen that the Tribunal has not awarded any
amount towards the loss of income during the laid up
period. In view of the fact that this Court has enhanced
the income to Rs.9,000/- per month and the claimant
having been in-patient for 30 days, having undergone
multiple fractures, it would not have been possible for
the claimant to return to work immediately. Hence, he
was required at least three months' bed rest and waiting
period. Accordingly, four months is taken for assessing
loss of income during laid up period, including 30 days
wherein he was in-patient. Hence, a sum of Rs.36,000/-
[i.e., Rs.9,000/- X 4] is awarded under the head of loss of
income during the laid up period.
23. The Tribunal has awarded a sum of Rs.30,000/-
towards the loss of amenities. I do not find any
reason to interfere with the same. Hence, the same is
retained.
24. In view of the above discussion, I am of the opinion
that the claimant is entitled for enhancement of
compensation from Rs.11,24,116/- to Rs.12,38,436/-, as
per the table mentioned below:
Sl. Amount
Heads of account
No. awarded
1 Pain and Suffering Rs.50,000/-
2 Conveyance expenses, food, Rs.50,000/-
nourishment and nutrition
expenses
3 Medical Expenses Rs.4,97,556/-
4 Future Medical Expenses Rs.50,000/-
5 Loss of income during the laid Rs.36,000/-
up period for four months
[Rs.9,000/- X 4]
6 Loss of future earning capacity Rs.5,24,880/-
due to disability
[Rs.9,000/- x 27% = Rs.2,430/- ;
Rs.2,430/- x 12 x 18 = Rs.5,24,880/-]
7 Loss of amenities Rs.30,000/-
TOTAL: Rs.12,38,436/-
25. In the result, I pass the following order:
ORDER
(i) The appeal is partly allowed;
(ii) The judgment and award dated
26.09.2019 passed in M.V.C. No.4832 of
2016 by the Additional Small Causes
Judge and M.A.C.T., Bengaluru (SCCH-
13) is modified, consequently, enhancing
the compensation.
(iii) The claimant is entitled for enhancement
of compensation from Rs.11,24,116/- to
Rs.12,38,436/- and the entire enhanced
amount shall be disbursed in favour of
the claimant.
(iv) Respondent No.3-insurer shall pay /
deposit the balance enhanced
compensation amount with interest at
six per cent per annum [6%] from the
date of the petition till deposit within a
period of six weeks from the date of
receipt of a copy of this judgment,
before the Tribunal;
(v) All other terms and conditions stipulated
by the Tribunal shall stand in tact;
(vi) The Registry shall return the original
records/TCR forthwith.
Sd/-
JUDGE
RK
CT:SN
