Karnataka High Court
Sri. Kempegowda vs Uday Kumar on 20 December, 2023
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MFA No. 2157 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 2157 OF 2019
(MV-I)
BETWEEN:
SRI. KEMPEGOWDA
S/O HUCHEGOWDA
AGED ABOUT 45 YEARS,
CHIKKABETTAHALLI VILLAGE
NARYAANAPURA POST KANAKAPURA TALUK
RAMANAGAR DISTRICT
PIN NO.562117
Digitally ...APPELLANT
signed by JAI
JYOTHI J (BY SRI. A S GIRISH.,ADVOCATE)
Location:
HIGH COURT AND:
OF
KARNATAKA
1. UDAY KUMAR
S/O BAILVENKATAYYA
MAJOR IN AGE R/AT NO.31,
1ST MAIN A CROSS,
BYATARAYANAPURA
MYSORE ROAD
BANGALORE-560026
(OWNER OF MOTOR CYCLE
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MFA No. 2157 of 2019
BEARING NO.KA-02-JH-1654)
2. THE ORIENTAL INSURANCE CO. LTD.,
NO.44/45, RESIDENCY ROAD,
LEO SHOPPING COMPLEX,
BANGALORE-560025
REPRESENTED BY ITS MANAGER
(INSURER OF MOTOR CYCLE BEARING
NO.KA-02-JH-1654)
...RESPONDENTS
(BY SRI. C. CHANKAR REDDY .,ADVOCATE FOR R2;
V/O DTD: 18.04.2022 NOTICE TO R1 D/W)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED22.11.2018 PASSED
IN MVC NO.222/2017 ON THE FILE OF THE I ADDITIONAL
SMALL CAUSES JUDGE AND MACT, BENGALURU (SCCH-
11), PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the award passed in MVC.No.222/2017
dated:22.11.2018, the claimant is before this court
seeking enhancement of the compensation.
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2. The claim petition is filed seeking compensation
of an amount of Rs.50,00,000/- for the injuries sustained
by the claimant in the accident. It is the case of the
claimant that on 06.10.2016 at about 9.00 a.m when he
was riding his TVS XL bearing registration No.KA-42-S-
6663 slowly and cautiously at the left side of the road, at
that time, a motor cycle driven by the driver came in a
rash and negligent manner with high speed and dashed
the claimant vehicle from behind. Due to the said impact,
he fell down along with the vehicle and sustained injuries
to his neck, backside of head and other bleeding injuries
all over the body. As per the evidence of the Doctor who
is examined as PW-2, he had developed weakness of all
four limbs and also had lost complete sensation in limbs.
X-ray and MRI of cervical spine had shown C-5-6 grade I
subluxation with spine cord injury. On 07.10.2016, he
underwent anterior cervical approach, C5-6 discectomy
and fusion with iliac crust bone graft and stabilization with
plates ands screws. Post operatively the patient had
persistent weakness of all limbs and he was on
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physiotherapy and medications. MRI done after two
months shows cervical spinalmyelomalacia suggestive of
permanent spinal cord injury and his weakness is still
persisting and is unlikely to improve. The claimant is on
wheel chair and he is unable to sit without the help of the
relatives. He is completely dependant on others for
activities of daily routine. The doctor had assessed the
disability at 90% and the functional disability at 100%.
The court below had taken the disability at 40%.
Accordingly to the claimant working as a cook, earning an
amount of Rs.25,000/- per month. The court below had
taken Rs.8,000/- as income and granted the compensation
under the following heads as per the table given below:-
Sl. Description of Items Compensation
Awarded
No.
1. Loss of earning capacity Rs. 4,99,200/-
2. Pain and suffering Rs. 25,000/-
3. Medical Expenses Rs. 1,52,638/-
4. Loss of income during Rs. 7,743/-
laid up period
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5. Food, Attendant, Rs. 6,000/-
conveyance,
nourishment
6. Loss of Amenities Rs. 20,000/-
Total Rs. 7,10,581/-
3. Learned counsel appearing for the claimant
submits that this is a case where because of the injuries
sustained by the claimant, he completely has to restrict
himself to the wheel chair, and he had lost sensation in all
the four limbs. He has relied on the Judgment of the
Hon'ble Apex Court in the case of Kajal -Vs- Jagdish
Chand and others1. He submits that in this case young
girl was left with a low IQ and with severe weakness in all
her four limbs and suffers from severe hysteria and
several urinary incontinence and her disability is assessed
at 100%. Hon'ble Apex Court while granting the
compensation, under the head of future earning had
granted an amount of Rs.14,66,000/-. When it comes to
AIR 2020 SC 776
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attendant charges, considering the requirement of two
attendants granted an amount of Rs.5,000/- each and by
applying multiplier had granted an amount of
Rs.21,60,000/-. Even under the head of pain and
suffering, Rs.15,00,000/- is awarded. The learned counsel
submits that in this case, the tribunal without considering
evidence of the doctor and the and the disability of the
claimant had granted only an amount of Rs.7,10,581/-.
4. Learned counsel appearing for the insurance
company submits that the judgment of the Hon'ble Apex
Court in Kajal Case referred supra cannot be applied in
the facts of this case, whereas in that case, the young girl
because of the accident both mentally and physically was
affected and under those circumstances the Hon'ble Apex
court had considered the disability and granted the
compensation. It is submitted that basing on the evidence
on record, the court below had rightly granted the
compensation and no grounds are made for enhancement
of the compensation.
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5. Having heard the learned counsel on either
side, perused the entire material on record. In this case,
according to the claimant, he is earning an amount of
Rs.25,000/- per month, the court below had taken an
amount of Rs.8,000/-. Considering that this is an accident
of the year 2016, this court is inclined to take the income
at Rs.9,500/-. Then coming to the disability, according to
the doctor there is weakness in all the four limbs, he is not
in a position to do any work without others help. He is
completely restricted to the wheel chair and it is unlikely
that the situation will review. The doctor opined that the
physical disability is 90% and assessed functional disability
at 100% and also the evidence discloses that the claimant
has to completely stick to the wheel chair. From the
evidence on record, there cannot be any hesitation to hold
that the functional disability is 100%. This court has
taken Rs.9,500/- as the income, considering the age at 46
years, future prospects at 25% comes to Rs.2,375/- i.e.,
Rs.2,375/- + Rs.9,500/- = Rs.11,875/-. (Rs.11,875/- x
12 x 13 = Rs.18,52,500/-). Under the head of loss of
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future income due to disability this court is granting an
amount of Rs.18,52,500/-. Then coming to the pain and
suffering, considering the injuries and the hospitalisation,
this court is granting an amount of Rs.2,00,000/-. The
learned counsel appearing for the insurance company
submits that the multiplier cannot be applied, as per the
ratio laid down in Kajal's Case referred supra
particularly considering the fact that there is no attendant
requirement completely for the claimant. This court
considering the evidence of doctor and requirement of
attendant is granting to amount by income at Rs.9,500/-
(Rs.9,500/- x 12 x 13= Rs.14,82,000/-) granted an
amount of Rs.14,82,000/- under the head of attendant
charges. Then coming to loss of amenities, this court is
inclined to grant an amount of Rs.3,00,000/-. The court
below has already granted sufficient amount towards
medical expenses an amount of Rs.1,52,638/-, which
requires no interference. Then towards food, attendant
and nourishment charges, the court had granted only
an amount of Rs.6,000/-. The claimant was in hospital for
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38 days and this court is granting an amount of
Rs.40,000/-.
6. In the light of the law laid down by the Hon'ble
Supreme Court in the case of V. MEKALA -vs- M.
MALATHI AND ANOTHER 2, the claimant is entitled for
an amount of Rs.10,000/- towards legal expenses.
Altogether the claimant is entitled for an amount
Rs.40,37,138/- at 6% interest.
7. When it comes to the liability, the court below has
held that as the driver of the offending vehicle was not
having valid driving license the insurance company is liable
to pay the compensation and recover the same from the
owner of the vehicle, which is a correct finding accordingly
the compensation amount shall be paid by the insurance
company and recover the same by the owner of the
vehicle.
(2014) 11 SCC 178
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8. The claimant is entitled for compensation under
the following heads:
Sl. Description of Items Compensation
Awarded
No.
1. Loss of future income Rs. 18,52,500/-
2. Pain and suffering Rs. 2,00,000/-
3. Medical Expenses Rs. 1,52,638/-
4. Attendant charges Rs. 14,82,000/-
5. Food, attendant and Rs. 40,000/-
nourishment
6. Loss of Amenities Rs. 3,00,000/-
7. Legal Expenses Rs. 10,000/-
Total Rs. 40,37,138/-
9. Accordingly the appeal filed by the claimant is
Allowed-in-part by enhancing the compensation amount
from an amount of Rs.7,10,581/- to Rs.40,37,138/-.
The compensation amount shall be paid by the insurance
company and recover the same by the owner of the
vehicle.
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(a) The enhanced amount shall carry interest
@ 6% per annum from the date of
petition, till the date of realization.
(b) Respondent-Insurance Company shall
deposit the said compensation amount
with accrued interest before the tribunal
within a period of 8 (Eight) weeks.
(c) The Registry is directed to return the Trial
Court Record to the Tribunal along with
the certified copy of the order passed by
this court forthwith without any delay.
(d) No Costs.
Pending miscellaneous petitions, if any, shall
stand closed.
SD/-
JUDGE
TS
