Karnataka High Court

Dr. Shashikant S/O Late ... vs Muniraj.M. S/O Muniyappa And Ors on 11 January, 2023

Bench: Sreenivas Harish Kumar, T G Gowda

        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

     DATED THIS THE 11TH DAY OF JANUARY, 2023

                        PRESENT

 THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

                           AND

THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

 MISCELLANEOUS FIRST APPEAL NO.202215/2018(MV)

BETWEEN:

Dr. Shashikant
S/o. Late Nagshettappa Goled,
Age: 48 years,
Occ: PU College Lecturer,
Now Nil after the accident mentally retarded
Represented through his next friend
Smt. Jyotilata W/o. Dr. Shashikant,
Age: 41 years, Occ: Household
R/o: Gomati Apartment,
Garden Road, Khuba Colony,
2nd Floor, No.8, 1-1-5/17/5,
Gulbarga Tq,
Dist: Kalaburagi.                      ... Appellant

(By Sri S.S. Sajjanshetty, Advocate)
                                        MFA No.202215/2018
                             2




AND:

1.     Muniraj M., S/o. Muniyappa,
       Age: 33 years, Occ: Driver Service
       R/o: H.No.92, 4th Cross,
       New Guddadahalli,
       Mysore Road,
       Bangalore-26

2.     Manoj Kumar S/o. Sajjan Raj Anchalia
       Age: Major, Occ: Business
       R/o: H.No.90, B-Sheet, 6th Cross,
       Gandhi Nagar,
       Bangalore-560 009

3.     The Divisional Manager,
       Bajaj Allianz General Insurance
       Co. Ltd., IV Floor,
       V.A. Kalaburagi Mansion,
       Opp: Municipal Corporation
       Lamington Road,
       Hubli-580 020.                  ... Respondents

(By Sri Subhash Mallapur, Advocate for R3:
R1 & R2-Notice dispensed with v/o dated 25.04.2019)

      This Miscellaneous First Appeal is filed under
Section 173(1) of MV Act, praying to allow the appeal by
setting aside the judgment and award dated 17.02.2018
passed in MVC No.1027/2012 by the III Additional Senior
Civil Judge & Member, MACT, Kalaburagi and further be
pleased to modify the award and enhance the amount of
compensation payable in accordance with law along with
9% interest to meet the ends of justice and equity.
                                            MFA No.202215/2018
                                3




     This appeal coming on for Final Hearing, through
physical   hearing/video   conference,    this    day,
T.G.Shivashankare Gowda, J., delivered the following:

                         JUDGMENT

In this appeal, the appellant has challenged the

judgment dated 17.02.2018 passed in M.V.C.No.1027 of

2012 on the file of the III Additional Senior Civil Judge

and MACT., Kalaburagi (hereinafter referred to as

'Tribunal' for short).

2. The appellant was the petitioner and the

respondents were the respondents before the Tribunal.

The parties will be referred as per their status before the

Tribunal for the sake of convenience.

3. Briefly stated, the facts are that, on

16.04.2012 at about 7.10 a.m., the petitioner met with

an accident at 6th Cross, Gandhi Nagar, Bangalore, due

to hit by a Honda Active bearing No.KA-01/EM-8658, MFA No.202215/2018

causing him the injuries on his head and fracture of both

hands. He was hospitalized at Victoria Hospital,

Bangalore, at NIMHANS Hospital from 16.04.2012 to

24.05.2012 and at St.Martha's Hospital from 31.05.2012

to 12.06.2012. The petitioner became mentally retarded

due to head injury. Hence through his wife, he made a

claim for Rs.95,61,520/-. The claim was opposed by the

Insurance Company. The Tribunal awarded

Rs.37,49,300/- with 6% interest.

4. Petitioner has pleaded inadequacy in award of

compensation and that future prospects of income, loss

of life expectancy and expenses towards future

treatment were not considered by the Tribunal.

5. According to the learned counsel for

petitioner, the petitioner was holding a permanent job,

drawing monthly salary of Rs.34,890/- as a Lecturer in a MFA No.202215/2018

P.U.College. The impact of the head injury was that he

was hospitalized for more than 1½ months at NIMHANS.

The medical evidence has been placed before the

Tribunal explaining the permanent whole body disability

suffered by the petitioner to be more than 90%. But the

Tribunal has considered the disability at 62% without any

rationale. The Tribunal has not awarded future medical

expenses, loss of life expectancy and sought for re-

assessment and enhancement.

6. Per contra, learned counsel for the respondent

No.3/Insurance Company contended that the

neurological defect of the petitioner was assessed by the

Medical Officer to an extent of 62%, the certificate was

not issued by the treating doctor, but it was obtained

from the Medical College of Bellary and therefore, the

Tribunal has rightly assessed the disability, so also the

compensation, which is on the higher side and supported MFA No.202215/2018

the impugned judgment. Further he contended that the

petitioner being a pedestrian has also contributed for the

accident and the Tribunal did not consider the

contributory negligence and sought for deduction of

minimum of 25% of the compensation towards

contributory negligence.

7. We have given our anxious consideration to

the arguments addressed on behalf of the parties and

perused the records.

8. There is no dispute as to the accident, cause

of accident, head injury sustained by the petitioner,

hospitalization, treatment and disability suffered by the

petitioner. The dispute is regarding the percentage of

disability, consideration of future prospects of income,

assessment of income for future treatment, consideration

of loss of life expectancy and assessment of MFA No.202215/2018

compensation under different heads. We are also

required to consider the plea of contributory negligence.

9. Ex.P4, the wound certificate narrates the

injuries sustained by the petitioner, such as, (i) fracture

of both hands and (ii) head injury and brain injury and

other parts of the body (all 4 limbs). The medical

records also point out that the petitioner was hospitalized

for 52 days, he had undergone surgery for fracture of

both hands, so also treatment taken at NIMHANS for

about 39 days for head injury. The medical bills point

out that a sum of Rs.2,92,450/- was spent, which the

Tribunal has considered in toto and it is just and proper.

10. The compensation awarded by the Tribunal

towards pain and suffering, loss of amenities is on the

lower side, not proportionate to the nature of injuries.

No future medical expenses has been awarded. When MFA No.202215/2018

the petitioner has suffered head injury and also fracture

of both hands, future medical expenses is inevitable,

which is required to be considered and same has been

ignored by the Tribunal. The Tribunal failed to consider

the effect of the injuries on the life span of the

petitioner. Now he has become mentally retarded and it

certainly reduces his life span for which compensation

has to be assessed, which the Tribunal has totally

ignored.

11. As regards avocation and income is

concerned, the salary certificate at Ex.P16 points out

that the petitioner was drawing a salary of Rs.34,890/-

as Lecturer. The Tribunal has deducted 10% towards

TDS and considered the income of the petitioner at

Rs.31,400/-. The petitioner was aged 42 years at the

time of accident. Since he is in a permanent

employment, certainly he had chances of better future MFA No.202215/2018

prospects in the form of Dearness Allowance and hike in

salary. As seen from the impugned judgment, the

Tribunal has not considered the future prospects. The

law regarding future prospects has been settled. Hence,

by applying the principles laid down in National

Insurance Company Limited vs. Pranay Sethi and

Others -2017 ACJ 680, future prospects should be

taken at 30% for the age of 42 years.

12. Ex.P10 is the disability certificate. If it is read

along with report of the NIMHANS at Ex.P14 and the

evidence of PW-2/Dr.Rajendra Kothari, who is the

Surgeon, though not the treating Doctor, his evidence

cannot be ignored, having regard to the nature of head

injury suffered by the petitioner.

13. It is the argument of the learned counsel for

the petitioner that the petitioner has been removed from MFA No.202215/2018

service on account of mental retardation. Keeping all

these factors into consideration, we do not find any

rationale in the reasoning of the Tribunal in arriving at

62% disability for the whole body. When the

Neurosurgeon issued the disability certificate and the

removal of petitioner from the job, he presenting the

petition through his wife, being mentally retarded, we do

not find any reason to discard the disability assessed by

the Medical Officer. We are in full agreement with the

disability assessed by the Medical Officer and we accept

the disability of the petitioner at 90%.

14. Taking into consideration all these factors, we

deem it proper to award Rs.1,00,000/- towards pain and

sufferings, Rs.2,92,450/- towards medical expenses,

Rs.52,000/- towards food and nourishment and

conveyance charges, Rs.1,00,000/- towards loss of

amenities and discomfort, loss of income during the MFA No.202215/2018

period of treatment Rs.94,200/- (Rs.31,400/-x3

months), shortening of life expectancy Rs.50,000/- and

future medical expenses Rs.50,000/-.

15. As discussed above, the petitioner has

suffered 90% disability, aged 42 years and for the age of

42 years, the multiplier applicable is '14'. The salary of

the petitioner is taken at Rs.34,890/-, if 10% is deducted

towards income-tax, it comes to Rs.31,400/-. If future

prospects of 30% is added, income of the petitioner

comes to Rs.40,820/- x 12 x 14 = Rs.68,57,760/- x 90%

= Rs.61,71,984/-. Accordingly, it is assessed.

16. Thus, the petitioner is entitled to

compensation under different heads as follows:

Sl.

                      Particulars                    Amount (Rs.)
No.
1.    Pain and suffering                             1,00,000/-
2.    Medical expenses                               2,92,450/-
3.    Attendant, conveyance &                          52,000/-
      Food and nourishment
                                             MFA No.202215/2018





4.   Loss of amenities and discomfort             1,00,000/-
5.   Loss of income during treatment                94,200/-
6.   Loss of life expectancy                        50,000/-
7.   Future medical expenses                        50,000/-
8.   Loss of income due to disability             61,71,984/-
                   TOTAL                          69,10,634/-

17. Adverting to the argument of respondent

regarding contributory negligence, we have perused the

impugned judgment. There is no cross-examination of

petitioner nor is there any evidence which speaks about

the contributory negligence. It is not the case of the

Insurance Company that the petitioner has crossed the

road at the time of accident. Motor cycle hit against the

pedestrian making him disable throughout his life.

Hence, no scope for attributing the contributory

negligence against the petitioner.

18. In all, the petitioner is entitled to enhanced

compensation of Rs.31,61,334/- rounded off to MFA No.202215/2018