Karnataka High Court
Sri. Vishwanath vs Sri.B M.Sukumar Shetty on 4 December, 2023
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NC: 2023:KHC:43694
MFA No. 2073 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCELLANEOUS FIRST APPEAL NO.2073 OF 2016(MV-I)
BETWEEN:
SRI. VISHWANATH,
AGED ABOUT 35 YEARS
S/O MAHABALA DEVADIGA, R/AT MULLUGUDDE
KAVRADY VILLAGE, KUNDAPURA TALUK
UDUPI DISTRICT-576 211
...APPELLANT
(BY SRI. NAGARAJ HEGDE, ADVOCATE)
AND:
1. SRI. B. M.SUKUMAR SHETTY,
AGED MAJOR,FATHER NAME NOT KNOWN
MANAGING PARTNER,
SRI MOOKAMBIKA CASHEW INDUSTRIES
KARKUNJE VILLAGE, VANDSE POST
Digitally signed
by VINUTHA B S KUNDAPURA TALUK, UDUPI DISTRICT-576 233
Location: HIGH
COURT OF
KARNATAKA
2. THE NATIONAL INSURANCE CO. LTD.,
BRANCH OFFICE, I FLOOR, GANESHMAHAL
MUNICIPAL MAIN ROAD, KUNDAPURA-576 201
REPT. BY ITS BRANCH MANAGER.
...RESPONDENTS
(BY SRI. O. MAHESH, ADVOCATE FOR R2;
R-1 SERVED, BUT UNREPRESENTED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 15.9.2015 PASSED IN
MVC NO.554/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MEMBER, ADDITIONAL MACT, KUNDAPURA, PARTLY ALLOWING
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MFA No. 2073 of 2016
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR DISMISSAL, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.Nagaraj Hegde, learned counsel for the
appellant. Despite of service of notice, none appeared for
respondent No.1. Equally though Sri.O.Mahesh, learned
counsel is on record representing respondent No.2,
learned counsel failed to submit his contentions.
2. Challenge in this appeal is the award that is
passed by the Motor Accidents Claims Tribunal,
Kundapura, in MVC No.554/2014 dated 15.09.2015.
Appeal is preferred seeking for enhancement of
compensation.
3. The facts of the case as narrated in the claim
application in a narrower compass are that on 10.02.2014
at about 2.00 p.m. while the appellant was proceeding at
the right side of mud portion area of Amparu-Basrur road
and when he reached near Dasaramakki, one Mahendra
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Pick Up vehicle bearing Registration No.KA-20-B-8701
which came from Amparu side driven by its driver at a
high speed and in a rash and negligent manner dashed
against the appellant, due to which he sustained major
injuries. The appellant was shifted to Vinaya Hospital,
Kundapura and from there to Kasturba Hospital, Manipal.
The appellant took intensive treatment as an inpatient for
the grievous injuries sustained by him. The appellant as
Mason was earning Rs.18,000/- per month and due to
permanent disability, he lost his earnings and thus, the
respondents are at liability to compensate him to a sum of
Rs.30,80,000/-.
4. The second respondent resisted the claim of the
appellant by filing a written statement in which he denied
all the material averments in the claim petition, more
particularly his liability to compensate the appellant.
Though the second respondent admitted the existence of
policy by the date of accident, he contended that his
liability is subject to the terms and conditions of the
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insurance policy. Ultimately, the second respondent sought
for dismissal of the claim application.
5. Subjecting the evidence of PW1, PW3, Exs.P1 to
P11, P15 to P21 to scrutiny, learned Judge of the Tribunal
came to a conclusion that the appellant is entitled to a
sum of Rs.6,89,770/- as compensation. Though as earlier
indicated, the claim is for Rs.30,80,000/-, coming to the
appeal, his claim was restricted to Rs.15,00,000/-.
6. Learned counsel for the appellant made his
submission only on two prominent points. Firstly with
regard to assessment of monthly income of the appellant
and secondly with regard to failure on part of the Tribunal
in considering the expenditure which the appellant would
have incurred for transportation and allied expenses
during the period of treatment.
7. The Tribunal has awarded a sum of Rs.80,000/-
under the head pain and sufferings, Rs.1,45,370/- towards
medical expenses, Rs.65,000/- towards loss of earning
during the laid up period, Rs.3,74,400/- towards loss of
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future earning capacity and Rs.25,000/- towards loss of
amenities. In total, the Tribunal has awarded a sum of
Rs.6,89,770/- as compensation.
8. Apart from the testimony of the claimant i.e.
appellant herein, the evidence of PW3 gains much
significance. The evidence of PW3 is that, he is working as
Orthopedic Surgeon at Kasturba Hospital, Manipal. The
appellant approached the Trauma Centre, Kasturba
Hospital, Manipal on 10.02.2014. He was found to have
sustained abrasion measuring 1 x 1 cm. of right wrist,
Degloving injury over left hand and wrist, left ring finger
amputation at PIP joint, Open fracture of 1st, 2nd, 3rd,
4th metacarpal and injury over left hand.
9. PW3 further stated that debridement with K
wire fixation was done on 10.02.2014, Abdominal flap
cover was kept on 13.2.2014 and he was discharged on
24.2.2014. He was reviewed on 26.2.2014. Again he was
admitted on 7.3.2014 and flap division was done on
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8.3.2014. He was discharged on 11.3.2014. Again he was
admitted on 24.3.2014 for K wire removal and
physiotherapy. He was discharged on 29.3.2014. He was
reviewed on 4.4.2014, 25.4.2014 and 30.5.2014 and got
admitted on 30.6.2014. Flap debulking and left middle
finger PIP joint arthrolysis was done on 2.7.2014. He was
discharged on 5.7.2014 and he was reviewed on
14.7.2014 and 12.1.2015.
10. PW3 further stated that there is 87% loss of
grip strength and 80% loss of pinch strength. He also
stated that there is 40% loss of movement at wrist and
75% at IP + MP joint of left hand. He also deposed that
there is permanent disability of 40% for his left upper limb
function. As per the version of the appellant, he was
working as Mason and was earning Rs.18,000/- per month
by the date of accident. There is no much denial with
regard to the occupation as put forth by the appellant. The
Tribunal having considered the occupation has taken the
nominal income of the appellant as Rs.6,500/- per month.
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11. The contention of the learned counsel for the
appellant is that, the said figure is on lower side. This
Court is in total agreement with the said contention.
However, in the light of absence of any substantive proof
with regard to the actual earnings of the appellant as on
the date of accident, this Court considers desirable to take
his income as Rs.8,500/- per month. The contention of the
learned counsel for the appellant is also that the Tribunal
ought to have awarded certain amount which the
petitioner would have incurred towards transportation,
extra nourishment, diet and attendant charges during the
period of treatment. However, a perusal of the impugned
order goes to show that, the Tribunal has added a sum of
Rs.12,000/- towards food and nourishment, Rs.8,000/-
towards attendant charges and Rs.10,000/- towards
conveyance and included the same under the head
medical expenses.
12. Considering the nature of injuries sustained and
the treatment taken, this Court is of the view that the
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compensation which can be termed to be just and
reasonable having regard to the nature of injuries
sustained and the disability are as under:-
Sl. Description Amount
No Rs.
1 Compensation for pain and
80,000
sufferings
2 Medical expenses 1,45,370
3 Loss of earning during laid
up period at the rate of
85,000
Rs.8,500/- per month for a
period of 10 months
4 Loss of earnings due to
disability (8,500 x 12 x 4,89,600
16x30%)
5 Loss of amenities in life 25,000
Total Compensation Rs.8,24,970
Thus, the just compensation which the petitioner is
entitled comes to Rs.8,24,970/-.
13. Resultantly, the appeal is allowed in part. The
amount of compensation granted by the Motor Accidents
Claims Tribunal, Kundapura through orders in MVC
No.554/2014 is enhanced from Rs.6,89,770/- to
Rs.8,24,970/-.
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The award of the Tribunal in all other aspects holds
good.
Sd/-
JUDGE
AP
CT:TSM
