Karnataka High Court

Sanju @ Sanjeev Kumar vs N.E.K.R.T.C on 10 January, 2023

Bench: J.M.Khazi

                        1        MFA No.202447/2017




        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

   DATED THIS THE 10TH DAY OF JANUARY, 2023

                     BEFORE

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

            MFA NO.202447/2017 (MV)

BETWEEN:

SANJU @ SANJEEVKUMAR
S/O VISHWANATH PHULE
AGE: 27 YEARS, OCC: COOLIE
(NOW NIL), R/O NARAYANPUR
TQ. BASAVAKALYAN
NOW AT SHIVAJI NAGAR
KALABURAGI
                                        ...APPELLANT
(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE)

AND

N.E.K.R.T.C.
THROUGH ITS DIVISIONAL CONTROLLER
MSK MILL ROAD
KALABURAGI-585102
                                        RESPONDENT
(BY SMT. SANGEETA BHADRASHETTY, ADVOCATE)


      THIS MISCELLANEOUS     FIRST   APPEAL   IS   FILED
UNDER SECTION 173(1) OF MV ACT, PRAYING TO ALLOW
THIS APPEAL AND ENHANCE THE COMPENSATION TO
                            2       MFA No.202447/2017




RS.11,19,100/- (EXCLUDING THE AMOUNT AWARDED BY
THE TRIBUNAL) ALONG WITH INTEREST BY MODIFYING
THE JUDGMENT AND AWARD OF THE PRL. SENIOR CIVIL
JUDGE AND MACT, KALABURAGI DATED 01.08.2016 IN
MVC NO.53/2014.


     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                      JUDGMENT

This is claimant's appeal filed under Section

173(1) of Motor Vehicles Act (hereinafter referred to

as 'the Act' for short), seeking enhancement of

compensation for the injuries sustained by him in a

road traffic accident dated 07.01.2012.

2. For the sake of convenience, the parties

are referred to by their rank before the Tribunal.

3. It is the case of the petitioner that on

07.01.2012 at 3-00 p.m. he was returning to Mudabi

village on Hero Honda Motorcycle bearing registration

No.KA-56/E-1935 on Mudhol-Basavakalyan road near

the land of one Bhojareddy, NEKRTC Bus bearing

registration No.KA-35/F-566 (hereinafter referred as

"offending vehicle"), came in a high speed, in rash or

negligent manner and dashed against the petitioner.

He sustained multiple fractures. He took treatment at

Government General Hospital, Basavakalyan and

Dr.Vishvekar Accident Hospital, Omerga of

Maharashtra and Vijay Clinic, Umerga. Despite,

prolonged treatment, he is not completely cured.

When the accident took place, he was about to go to

Dubai.

3.1. In respect of the accident, criminal case

was registered against the driver of the offending

vehicle. As owner and insurer, the respondent is

liable to pay the compensation.

4. Respondent has filed written statement

disputing the age, occupation, income of the

petitioner, nature of the injuries sustained by him and

that they have resulted in permanent partial disability

and also medical expenses incurred for the treatment.

Respondent has also disputed that the accident

occurred due to the rash or negligent driving of driver

of the offending vehicle.

5. Based on the pleadings, the Tribunal has

framed necessary issues.

6. Petitioner got himself examined as P.W.1

and the doctor as P.W.2 and relied upon Exs.P.1 to

18.

7. On behalf of the respondent, one witness is

examined as R.W.1.

8. Vide the impugned judgment and award,

the Tribunal has partly allowed the claim petition filed

by the petitioner granting compensation in a sum of

Rs.4,74,900/- with interest at 6% per annum and

directed the respondent to pay the same as detailed

below:

   Towards     pain       and   Rs.70,000/-
   suffering.
   Towards      loss       of   Rs.10,000/-
   amenities              and
   enjoyment in life.
   Towards loss of future       Rs.1,55,520/-
   income.
   Towards            medical   Rs.2,04,380/-
   expenses
   Towards      attendant's     Rs.17,000/-
   charges,             food,
   nourishment            and
   conveyance expenses.
   Towards loss of income       Rs.18,000/-
   during     period       of
   treatment.
       Total                    Rs.4,74,900/-

9. The respondent has not challenged the

impugned judgment and award.

10. During the course of arguments, the

learned counsel representing the petitioner submitted

that while P.W.2 has assessed the disability at 35% of

the whole body, the Tribunal has erred in reducing it

to 12%. Since claimant is a skilled worker, the

income taken at Rs.6,000/- p.m. is on the lower side.

Looking to the nature of multiple fractures sustained

by the petitioner, the compensation granted under all

the heads is on the lower side.

11. On the other hand, learned counsel for the

respondent supported the impugned judgment and

award, except that income may be considered as

Rs.6,500/- p.m. instead of Rs.6,000/- p.m.

12. Heard learned counsel for the petitioner

and learned counsel for the respondent and perused

the records.

13. Having regard to the grounds urged in the

appeal memo, it is necessary to examine whether the

compensation granted to the petitioner under the

following various heads is just and reasonable or it

calls for interference by this Court:

14. Pain and suffering & loss of amenities

of life: As per the testimony of P.W.1 and 2 and the

documents placed on record, petitioner has suffered

fracture of both femur, bilateral maxillary sinuses,

lateral walls with displaced fracture fragments,

fracture of bilateral nasal bones, septum and

ethomoid sinuses walls, fracture of displaced bilateral

TM joints, fracture of mandible and grievous injuries

on other parts of the body. Having regard to these

injuries, though grant of compensation in a sum of

Rs.70,000/- under the head pain and suffering is just

and reasonable, Rs.10,000/- granted under the head

loss of amenities of life is on the lower side, the same

is enhanced to Rs.40,000/-.

15. Medical expenses:- Based on the medical

bills, the Tribunal has rightly granted compensation in

a sum of Rs.2,04,380/- and it requires no

interference.

16. Attendant charges, food, nourishment

and conveyance charges:- The Tribunal has granted

compensation in a sum of Rs.17,000/- under this

head. Having regard to the fact that the petitioner

has suffered multiple fractures, has taken treatment

at Omerga, has undergone surgery and also sustained

permanent partial disability, it would be reasonable to

expect him to be under treatment for a period of three

months. It would be reasonable to enhance the same

to Rs.25,000/-.

17. Loss of future income due to

disability:- The petitioner has contended that he was

earning more than Rs.6,000/- p.m. and infact he was

about to go to Dubai and he lost the said prospects

due to the accident. However, he has not produced

any evidence to prove his exact income. Though he

has produced his passport at Ex.P.18, the same would

not establish that he was supposed to go to Dubai. In

the absence of exact proof of his income, the Tribunal

has considered his income on notional basis at

Rs.6,000/- p.m. Since the accident is of the year

2012, based on minimum wages, it would be

appropriate to consider his income at Rs.6,500/- p.m.

Though in the claim petition, the petitioner has given

his age as 25 years, based on the medical record, the

Tribunal has considered his age as 24 years and

therefore, 18 multiplier taken is correct. However,

while calculating loss of future income, the Tribunal

has not taken into consideration loss of future

prospects. Since the petitioner is aged less than 40

years, 40% of his income is required to be added to

calculate loss of future prospects. 40% of Rs.6,500/-

is Rs.2,600/-. Therefore, the notional income is

required to be taken at Rs.9,100/-.

17.1. During the course of his evidence P.W.2,

Dr.Kishore Mengaji has deposed that he has issued

disability assessment report at Ex.P.9, according to

which, the disability suffered by the petitioner is at

35% of the lower limb and whole body. A disability

cannot be same with regard to particular limb as well

as the whole body. But the disability certificate at

Ex.P.10 states that the petitioner has suffered 30%

disability. The doctor, who has issued it is not

examined. Taken into consideration these aspects,

the whole disability taken by the Tribunal at of 12% is

correct. With these components, the compensation

under this head comes to Rs.9,100 x 12 x 18 x12% =

Rs.2,35,872/- as against Rs.1,55,520/- granted by the

Tribunal.

18. Compensation for the laid up period:-

Having regard to the nature of the injuries sustained

by the petitioner and that it has resulted in permanent

partial disability, it would be reasonable to expect him

to be under treatment for three months. Therefore, at

the rate of Rs.6,500/-, the petitioner is entitled for

compensation in a sum of Rs.19,500/- as against

Rs.18,000/- granted by the Tribunal.

19. Future medical expenses: The Tribunal

has not granted any compensation under this head.

Since the petitioner has undergone surgery, for

removal of implants, granting compensation in a sum

of Rs.25,000/- would be just and reasonable.

20. Thus, in all the petitioner is entitled for

total compensation in a sum of Rs.6,19,752/- together

with interest at 6% p.a., as against Rs.4,74,900/-

granted by the Tribunal as detailed below:

  Sl.         Heads       Amount            Amount
  No.                     awarded by the    awarded by this
                          Tribunal          Court
  1.     Pain         and Rs.70,000/-       Rs.70,000/-
         suffering
  2.     Loss         of   Rs.10,000/-      Rs.40,000/-
         amenities    of
         life
  3.     Medical           Rs.2,04,380/-    Rs.2,04,380/-
         expenses
  4.     Attendant         Rs.17,000/-      Rs.25,000/-
         charges, food,
         nourishment
         and
         conveyance
         charges
  5.     Loss of future    Rs.1,55,520/-    Rs.2,35,872/-
         income due to
         disability
  6.     Compensation      Rs.18,000/-      Rs.19,500/-
         for the laid up
         period
  7.     Future medical          --         Rs.25,000/-
         expenses
              Total        Rs.4,74,900/-    Rs.6,19,752/-

21. Of course as the owner and insurer of the

offending vehicle, the respondent is liable to pay the

enhanced compensation with accrued interest.

Accordingly, I proceed to pass the following: