Karnataka High Court

Sri. Shivanna vs Raghuram Naidu C.H on 11 October, 2022

Bench: H.P.Sandesh

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 11TH DAY OF OCTOBER, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.NO.7974/2014 (MV-I)

BETWEEN:

SRI SHIVANNA,
S/O DASA BHOVI,
NOW AGED ABOUT 42 YEARS,
RESIDING AT ADIHALLI VILLAGE,
KASABA HOBLI, ARISKERE TALUK,
HASSAN DISTRICT-561313.
                                                ...APPELLANT

              (BY SMT. KAMALA D.K., ADVOCATE)

AND:

1.     RAGHURAM NAIDU C.H.,
       S/O KRISHNAM NAIDU,
       R/AT 3RD STREET, RAJAGOPALPURAM,
       NAIDU PETE, NELLUR.

2.     M/S NEW INDIA ASSURANCE CO. LTD.,
       REP BY ITS MANAGER,
       PLOT NO.11, AND 12, ADITYA TOWERS,
       OPP TO STATE BANK OF MYSORE,
       BALAJI COLONY, TIRUPATHI.
                                             ...RESPONDENTS

         (BY SRI S.T. RAJASHEKAR, ADVOCATE FOR R2,
              NOTICE TO R1 IS DISPENSED WITH
               VIDE ORDER DATED 04.02.2015)
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     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 02.09.2014
PASSED IN MVC NO.788/2012 ON THE FILE OF THE SENIOR
CIVIL JUDGE, JMFC, MACT, ARSIKERE, PARTLY ALLOWING THE
CLAIM   PETITION    FOR    COMPENSATION   AND    SEEKING
ENHANCEMENT OF COMPENSATION.

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

                           JUDGMENT

Heard the learned counsel for the appellant and the

learned counsel for respondent No.2.

2. This appeal is filed challenging the judgment and

award dated 02.09.2014, passed in M.V.C.No.788/2012, on the

file of the Senior Civil Judge, JMFC, MACT, Arsikere ('the

Tribunal' for short).

3. The factual matrix of the case of the claimant before

the Tribunal is that on 21.03.2012 at about 2.45 p.m., when the

claimant and other passengers alighted from the autorickshaw

near Laxmidevarahalli Gate, at that time, the driver of the goods

lorry came in a rash and negligent manner and dashed against

the autorickshaw. As a result, the claimant and others have

sustained injuries. Immediately after the accident, the claimant

was taken to Government Hospital, Arasikere and then to

Government Hospital, Hassan and later he was shifted to

Mangalore hospital. He was an inpatient for a period of three

months and he has suffered permanent disability. In order to

prove his contention, the claimant examined himself as P.W.1

and examined the doctor and got marked the documents at

Exs.P.1 to 7. On the other hand, the respondents have not led

any evidence. The Tribunal after considering both oral and

documentary evidence available on record, allowed the claim

petition granting compensation of Rs.1,72,500/- with 6%

interest. Hence, the present appeal is filed before this Court.

4. The learned counsel for the appellant would

vehemently contend that the Tribunal awarded an amount of

Rs.1,00,000/- under the head pain and suffering and not

awarded any compensation under the head loss of future income

inspite of the doctor has deposed 60% disability to the particular

limb. The Tribunal also awarded an amount of Rs.30,000/-

under the head loss of income during laid up period, Rs.20,000/-

under the head loss of amenities and Rs.15,000/- under the

head attendant charges, food and convenience charges. Even

though medical bills are produced to the tune of Rs.11,000/-,

only Rs.7,500/- is awarded under the said head and hence it

requires interference of this Court.

5. Per contra, the learned counsel for respondent No.2

submits that the Tribunal while considering the evidence of the

doctor has taken note of that he has not produced any document

that the claimant was clinically examined on 08.07.2014 at the

time of assessing the disability. The Tribunal has also taken

note of x-ray sheet and medical bills, which does not disclose

that the claimant was examined by the doctor and not produced

and documents to show that he was examined on 08.07.2014

and hence the Tribunal did not accept the evidence of the doctor.

Hence, the Tribunal has not committed any error.

6. Having heard the respective learned counsel and also

on perusal of the material available on record, the points that

arise for the consideration of this Court are:

(i) Whether the Tribunal has committed an error in not awarding just and reasonable compensation?

(ii) What order?

Point No.(i):

7. Having heard the respective learned counsel and also

on perusal of the material available on record, the documents

Exs.P.1 to 3 are in respect of FIR, complaint and charge-sheet

and there is no dispute with regard to the accident. The

claimant relied upon the wound certificate Ex.P.4, which clearly

discloses type III open fracture of both bones of tibia and fibula

and the injuries are grievous in nature. Immediately after the

accident, which was taken place on 20.03.2012, he was shifted

to Wenlock Hospital, wherein he was an inpatient and was also

subjected to surgery and consent was taken on 21.03.2012 itself

and periodically he took treatment at Wenlock Hospital and even

in the month of June also he was hospitalized. The doctor

assessed the disability of 60% to the particular limb and having

taken note of the nature of injuries i.e., fracture of both bones of

tibia and fibula as well as right femur fracture, the Tribunal

committed an error in not accepting the evidence of the doctor

only on the ground that clinical examination document is not

placed before the Court and the very approach of the Tribunal is

erroneous. In the cross-examination of doctor, nothing is

elicited except making the suggestion regarding nature of

injuries and disability. The doctor states that in view of the

injuries suffered by the claimant, there is a limping and also

shortening of 1 inch in his right leg. Though case-sheet is

summoned before the Court, the same is not marked and the

case-sheet records discloses that he was subjected to surgery

and the doctor evidence is very clear that he is having difficulty

in movement and the same is not taken note of by the Tribunal

and not accepted the evidence of the doctor. In paragraph

No.14 of the judgment made an erroneous observation that

clinical notes have not been placed before the Court and

erroneously comes to the conclusion that the evidence of the

doctor cannot be believed and not awarded any compensation

under the head future loss of income.

8. Having taken note of the material on record,

particularly the evidence of P.W.1 and the doctor, the claimant

has suffered lacerated injury over anterior aspect of right lower

leg, deformity of lower 1/3rd of right leg, swelling of right knee

and lower thigh and lacerated injury over dorsum of left foot and

he was an inpatient from 21.03.2012 and discharged on

30.06.2012. For almost for a period of three months he was in

the hospital and underwent operation twice and once again he

was admitted to hospital on 28.09.2012 and he was unable to

bend his knee completely and he was discharged on 04.10.2012.

For the second time he was an inpatient for a period of 7 days

and inspite of the same is noticed by the Tribunal, the Tribunal

failed to accept the evidence of the doctor and hence it requires

interference of this Court.

9. Having considered the material on record and having

taken note of the nature of injuries, the Tribunal rightly awarded

an amount of Rs.1,00,000/- under the head pain and suffering

and hence it does not require any interference of this Court.

10. The Tribunal failed to assess the disability. Having

taken note of his age as 40 years and accident was taken place

in 2012, the Tribunal has taken the income of Rs.5,000/- per

month while calculating the loss of income during laid up period

and awarded an amount of Rs.30,000/-. In the absence of any

documentary proof, the Tribunal ought to have taken the

notional income of Rs.7,000/- per month and he was an

inpatient from March 2012 to June 2012 and again he was

readmitted in September and discharged in October. Having

taken his income as Rs.7,000/- per month and laid up period as

seven months, the claimant is entitled for an amount of

Rs.49,000/- (Rs.7,000/- x 7) under the head loss of income

during the laid up period.

11. The Tribunal failed to award any compensation under

the head future loss of income. This Court has determined the

income of Rs.7,000/- and having considered his age as 40 years

and he has suffered the disability as per the evidence of the

doctor to the tune of 60% to particular limb and though 1/3rd of

it is 20%, having considered the nature of injuries, it is

appropriate to take the disability of 30%. The Apex Court in its

judgment in the case of ERUDHAYA PRIYA v. STATE

EXPRESS TRANSPORT CORPORATION LTD. reported in 2020

SCC Online SC 601, in a case of disability of 31.1% has taken

note of future loss of income and considered 50% of actual

salary in the said case. The Apex Court in its judgment in the

cases of SYED SADIQ AND OTHERS v. DIVISIONAL

MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED

reported in (2014) 2 SCC 735 and SANJAY KUMAR v. ASHOK

KUMAR AND ANOTHER reported in (2014) 5 SCC 330

considered the future loss of income. In view of the same,

future loss of income has to be added. Having considered his

income as Rs.7,000/- per month and adding 50% to it, it comes

to Rs.10,500/-. The claimant is entitled for an amount of

Rs.5,67,000/- (Rs.10,500/- x 12 x 15 x 30%) under the head

future loss of income.

12. Though the medical bills produced are to the tune of

Rs.11,000/-, the Tribunal considered the medical bills of

Rs.7,500/- in coming to the conclusion that the bills do not bear

the signature of doctor and date and no prescription for bills and

the Tribunal committed an error in expecting the signature of the

doctor in the said medical bills and hence it is appropriate to

award an amount of Rs.11,000/- under the head medical

expenses as against Rs.7,500/-.

13. The Tribunal also awarded an amount of Rs.20,000/-

under the head loss of amenities and he is aged about 40 years

and this Court assessed the 30% disability and when such being

the case, it is appropriate to award an amount of Rs.40,000/-

under the head loss of amenities.

14. The Tribunal awarded an amount of Rs.15,000/-

under the head attendant charges, food and convenience

charges. He was an inpatient for a period of 90 days at first

instance and again for 7 days. Having taken note of the accident

is of the year 2012, it is appropriate to award an amount of

Rs.50,000/- under the head conveyance, nourishment and

attendant charges food and nourishment as against Rs.15,000/-.

15. In all, the claimant is entitled for an amount of

Rs.8,17,000/- as against Rs.1,72,500/-.

16. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed in part.

(ii) The impugned judgment and award of the Tribunal dated 02.09.2014, passed in M.V.C.No.788/2012, is modified granting compensation of Rs.8,17,000/- as against Rs.1,72,500/- with interest at 6% per annum from the date of petition till deposit.