Karnataka High Court

Sri Muniyappa vs Sri K Pongaiannan on 17 May, 2022

Bench: J.M.Khazi

                                 1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 17TH DAY OF MAY, 2022

                           BEFORE

              THE HON'BLE MS.JUSTICE J.M.KHAZI

                M.F.A.NO.9541 OF 2011 (MV)
BETWEEN:

SRI. MUNIYAPPA
S/O MUNISWAMAPPA
AGED ABOUT 39 YEARS.

R/AT. IRIGENHALLI VILLAGE
BIJJAWARA POST,
DEVANAHALLI TQ,
BENGALURU RURAL DISTRICT - 203
                                           ... APPELLANT
(BY SMT. SUGUNA R REDDY, ADVOCATE)
AND:

1.     SRI. K. PONGAIANNAN
       S/O K. KUMARSWAMY,
       MAJOR IN AGE,

       R/AT NO.15, 14TH CROSS,
       2ND MAIN ROAD,
       LAKKASANDRA,
       BANGALORE - 18

2.     THE BRANCH MANAGER
       NATIONAL INSURANCE CO. LTD.
       NO.1631, SALEM ROAD
       SANKAGIRI-637 201
       SALEM DISTRICT
       TAMILNADU - 637 201
                                           ...RESPONDENTS
(BY SRI. S. SRISHAILA, ADVOCATE FOR R2;
                                 2


NOTICE TO R1 D/W V/O/D 10.02.2015)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO CALL
FOR THE RECORDS IN MVC NO.6464/2007 FROM THE FILE OF
THE MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE,
PERUSE THE SAME, HEAR THE APPELLANT AND ALLOW THE
ABOVE APPEAL BY MODIFYING THE JUDGMENT AND AWARD
DATED 29.11.2010 AND TO ENHANCE THE COMPENSATION TO
RS.18,00,000/- FROM RS.3,36,923/- AS AWARDED BY THE
CLAIMS TRIBUNAL AND TO DIRECT PAYMENT OF INTEREST AT
THE RATE OF 12% P.A. ON THE AWARD AMOUNT AND TO
GRANT SUCH OTHER RELIEF'S AS THIS HON'BLE COURT MAY
DEEM FIT TO GRANT UNDER THE CIRCUMSTANCES TO MEET
THE ENDS OF JUSTICE.
     THIS MFA HAVING BEEN HEARD AND RESERVED ON
02.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

Not being satisfied with the quantum of compensation

granted by the Tribunal, appellant who is petitioner before the

Tribunal has filed this appeal under Section 173(1) of Motor

Vehicle Act, 1988 (hereinafter referred to as 'MV Act') seeking

enhancement of the compensation.

2. For the sake of convenience the parties are referred

to by their rank before the Tribunal.

3. FACTS: Brief facts leading to the filing of the claim

petition are that petitioner is a driver by profession. On

23.12.2006 on the directions of his employer he was driving

TATA 407 vehicle bearing registration No.KA-40/3388 from

Chikkaballapura to go to Bijapur. At around 10.00 p.m. when his

vehicle reached Bangarakkanagudda Village of Jagalur Taluk,

Davanagere District, lorry bearing registration No.KA-05/AC-

9888 (hereinafter referred to as offending vehicle) came from

the opposite direction, being driven by its driver in a rash or

negligent manner and dashed against the tempo of the

petitioner.

3.1 As a result of the impact, petitioner sustained

grievous injuries. Immediately, he was shifted to Government

Hospital, Chitradurga. From there he was taken to Panacea

Hospital, Benglauru where he took treatment as in-patient.

Inspite of prolonged treatment for a period of six months, he is

not completely cured. After the accident, he is unable to pursue

his profession and as such he is suffering 100% loss of income.

As owner and insurer of the offending vehicle, respondent Nos.1

and 2 are jointly and severally liable to pay the compensation.

4. Before the Tribunal, though respondent No.1 duly

served with the notice he remained absent and as such placed

Ex-parte.

5. Respondent No.2 has appeared through counsel and

filed written statement admitting the coverage of the offending

vehicle as on the date of accident, but its liability is subject to

the terms and conditions of the policy and also subject to the

condition that the driver of the offending vehicle was holding a

valid and effective driving license.

5.1 Respondent No.2 has denied the actionable

negligence on the part of the driver of the offending vehicle. He

has also denied the age, occupation, income, nature of the injury

sustained by the petitioner, period of treatment, expenses

incurred for the treatment and that injuries resulted in

permanent partial disability resulting in 100% loss of income.

6. Based on these pleadings, the Tribunal has framed

the necessary issues.

7. In support of his case, petitioner has examined

himself as PW-1 and the Doctor who treated him as PW-2. He

has relied upon Ex.P1 to 15 (But in the Annexure of the

Judgment wrongly noted as Ex.P1 to 14).

8. Respondent No.2 has not led any oral and

documentary evidence on its behalf.

9. Vide the impugned judgment and award, the

Tribunal has accepted the case of the petitioner that injuries

have resulted in permanent partial disability. Also accepting the

evidence of PW-2 the Tribunal has considered the permanent

partial disability of the whole body of the petitioner at 16% and

granted compensation in a sum of Rs.3,36,923/- with interest at

6% p.a. as detailed below:

                        Heads                            Amount
                                                          in Rs.
          Injury, Pain and suffering                             60,000
          Medical expenses                                       74,683
          Attendant charges                                      18,000
          Conveyance charges                                      4,000
          Loss of income during treatment                        27,000
          Loss of future earning capacity                      1,38,240
          due to disability
          Future Medical Expenses                                 15,000
          TOTAL                                                3,36,923

10. Respondent Nos.1 and 2 have not challenged the

impugned judgment and award and thereby findings of the

Tribunal that the accident occurred due to the rash or negligent

driving by the driver of the offending vehicle and that in their

capacity as the owner and insurer they are jointly and severally

liable to pay the compensation has attained finality.

11. Heard arguments of both sides and perused the

record.

12. Petitioner is seeking enhancement of compensation

contending that the compensation granted under various heads

is on the lower side. The income of the petitioner should have

been taken at Rs.6,000/- p.m. instead of Rs.4,500/- taken by

the Tribunal. The Tribunal has erred in not granting any

compensation under the head loss of amenities of life. The

interest should have been granted at 9% p.a.

12.1 Petitioner has further contended that though the

Doctor has deposed that the whole body disability of the

petitioner is 16%, in fact petitioner has suffered 100% functional

disability affecting his earnings and as such compensation should

have been granted at 100% loss of income.

13. In view of the specific defence taken by the

petitioner, it is to be examined as to whether the compensation

granted under the various heads is reasonable and adequate or

else it requires any interference by this Court under the following

various heads.

14. Pain and Sufferings: As evident from the testimony

of petitioner who is examined as PW-1 as well as PW-2 Dr.

K.Ananthu who treated him, petitioner has sustained simple as

well as grievous injuries resulting in permanent partial disability.

As evident from Ex.P6 the referral card issued by the District

Hospital, Chitradurga, petitioner was in-patient on 24.12.2006 to

25.12.2006. Thereafter he was shifted to Panacea Hospital,

Bengaluru. As per Ex.P7, he was treated as in-patient from

27.12.2006 to 03.01.2007. Having regard to the fact that he has

suffered fracture of shaft femur with tibial condyle lateral with

tibila shaft, the Tribunal has correctly considered the period of

treatment as six months. He has undergone two surgeries.

Taking into consideration these aspects, the Tribunal has

granted compensation in a sum of Rs.60,000/- under the head

pain and suffering. Having regard to nature of the injury

sustained, period of treatment as well as he having undergone

two surgeries, it would be appropriate to increase the

compensation under this head by another Rs.10,000/- by

making it to Rs.70,000/- as against Rs.60,000/- granted by the

Tribunal.

15. Medical Expenses: Taking into consideration the bills

produced by the petitioner for a sum of Rs.74,683/-, the Tribunal

has granted compensation to the said extent and I find no

reason to interfere with the same.

16. Attendant charges: As already discussed the Tribunal

has considered the period of treatment as six months and having

regard to fact that the petitioners has sustained two fractures as

well as undergone two surgeries, for a period of six months, at

the rate of Rs.100/- per day, the Tribunal has correctly granted

the attendant charges in a sum of Rs.18,000/- and I find no

reason to interfere with the same.

17. Conveyance charges: The Tribunal has granted

compensation in a sum of Rs.4,000/- under the head

conveyance charges. Since the petitioner has undergone

treatment at two hospitals, one at Bengaluru and one at

Chitradurga and he was under treatment for a long period of six

months and has undergone two surgeries, it would be

appropriate to increase the compensation under the head

conveyance charges to Rs.10,000/- as against Rs.4,000/-

granted by the Tribunal.

18. Loss of income during treatment period: Though the

petitioner has claimed that he was earning Rs.6,000/-p.m. and

Rs.50/- per day batta, he has not produced any evidence to

establish the same. In the absence of documentary evidence,

the Tribunal has taken the income of the petitioner as Rs.4,500/-

The accident is of the year 2006 and therefore, the notional

income taken by the Tribunal is correct and there is no scope for

interference on this aspect. At the rate of Rs.4,500/-p.m, for a

period of six months during which petitioner was under

treatment, the Tribunal has granted compensation in a sum of

Rs.27,000/- which is correct and I find no reason to interfere

with the same.

19. Future Medical Expenses: Taking into consideration

the evidence of PW-2 that petitioner requires further treatment

for removal of the implants, the Tribunal correctly granted

compensation in a sum of Rs.15,000/- under this head and there

is no scope for any interference with the same. Of course

petitioner is not entitled for interest on compensation under this

head.

20. Loss of future earnings: In the claim petition,

petitioner has pleaded that as on the date of accident, he was

aged 35 years, but the Tribunal has considered his age as 31

years. However, whether his age is 31 years or 35 years, the

appropriate multiplier is 16 and it makes no difference.

Therefore, 16 multiplier taken by the Tribunal is correct. Even

though the petitioner has contended that he has lost 100%

functional disability and therefore, his disability is to be taken as

100%, the testimony of PW-2 and the documents placed on

record makes it evident that the whole body disability is 16%.

Moreover except his interested testimony, the petitioner has not

established that after the accident he is totally prevented from

taking out any livelihood or earning anything. In the

circumstances, I hold that the Tribunal is justified in taking his

functional disability as 16% only as per the whole body disability

calculated by PW-2.

20.1 The Tribunal has calculated compensation by taking

his income as Rs.4,500/-p.m. However, it has not taken into

consideration the future prospects as per the decision of Hon'ble

Supreme Court in Magma General Insurance Co.Ltd. Vs.

Nanu Ram Alias Chuhru Ram1. Since the age of the petitioner

was 35 years i.e, less than 40 and he was self-employed, 40% of

his income is to be taken into consideration as loss of future

prospects. 40% of Rs.4,500/- comes to Rs.1,800/-. Therefore,

loss of income of the petitioner is to be taken as Rs.4,500 +

1,800 = Rs.6,300/- and compensation is required to be

calculated by taking his notional income as Rs.6,300/-. With '16'

as the appropriate multiplier, the loss of future income of the

petitioner is 6,300 x 12 x 16 x 16% = Rs.1,93,536/-. Therefore,

petitioner is entitled for compensation in a sum of Rs.1,93,536/-

under the head loss of future income as against Rs.1,38,240/-

granted by the Tribunal.

21. Loss of amenities of life: It is pertinent to note that

the Tribunal has not granted any compensation under this head.

In case of permanent partial disability or for that matter

(2018) 18 SCC 130

suffering any grievous injuries, in addition to pain and suffering,

the Tribunal is required to grant compensation under the head

loss of amenities of life. Having regard to the fact that petitioner

has suffered two fractures, undergone two surgeries and was

under treatment for a total period of six months, I am of the

considered opinion that it would be appropriate and reasonable

to grant compensation in a sum of Rs.40,000/- under the head

loss of amenities of life especially having regard to the fact that

the accident is of the year 2006.

22. Thus, in all petitioner is entitled for total

compensation in a sum of Rs.4,48,219/- with interest at 6% p.a.

as against Rs.3,36,923/- granted by the Tribunal as detailed

below:

               Heads                     Amount              Amount
                                      granted by the      granted by this
                                         Tribunal             Court
                                          In Rs.              In Rs.
  Injury, Pain and suffering                  60,000              70,000
  Medical expenses                              74,683             74,683
  Attendant charges                             18,000             18,000
  Conveyance charges                             4,000             10,000
  Loss     of     income    during              27,000             27,000
  treatment
  Loss of future earning capacity              1,38,240          1,93,536
  due to disability
  Future Medical Expenses                     15,000                15,000
  Loss of amenities of life                 -                       40,000
  TOTAL                                    3,36,923              4,48,219

23. To this extent impugned judgment and award is

required to be modified and accordingly, I proceed to pass the

following:

ORDER

(i) Appeal filed by the petitioner is allowed in part.

(ii) Appellant/Petitioner is entitled for total compensation in a sum of Rs.4,48,219/- as against Rs.3,36,923/- granted by the Tribunal together with interest at 6% p.a. on Rs.4,33,219/- from the date of petition till realization (minus the compensation already paid/deposit).