Karnataka High Court

Mr. Sunil Kumar H D vs K C Dharmanna on 14 July, 2023

Bench: K.S.Mudagal And Byksmj, Rdhj

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                                              M.F.A.No.202/2018




       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 14TH DAY OF JULY 2023

                           PRESENT

           THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
                             AND
      THE HON'BLE MR.JUSTICE RAMACHANDRA D. HUDDAR

     MISCELLANEOUS FIRST APPEAL NO.202/2018 (MV-I)

BETWEEN:

MR.SUNIL KUMAR H D
S/O DAKSHINA MURTHY
AGED ABOUT 29 YEARS
R/AT HONNAVALLI VILLAGE
KASABA HOBLI, HASSAN TALUK - 577 423           ...APPELLANT

(BY SRI SHAMANTH K FOR SRI RAHUL RAI K, ADVOCATES)

AND:

1.     K.C.DHARMANNA
       R/AT DOOR NO.32, 1ST CROSS
       COX TOWN, BENGALURU - 560 084

2.     THE MANAGER
       UNITED INDIA INSURANCE CO. LTD.,
       SRI VENKATESHWARA BUILDING
       B.M.ROAD, HASSAN - 574 423            ...RESPONDENTS

(BY SMT.GEETHA RAJ, ADVOCATE FOR R2;
    NOTICE TO R1 IS DISPENSED WITH V/C/O DTD:13.04.2023)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 04.04.2017 PASSED BY THE SENIOR CIVIL
JUDGE, MEMBER AND MACT, ARKALGUD IN MVC NO.1811/2012
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
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                                                         M.F.A.No.202/2018




     THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD
AND RESERVED ON 21.06.2023 COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:

                             JUDGMENT

"Whether the compensation awarded to the appellant

under the impugned award is just?" is the question involved in

this case.

2. The appellant was the claimant and the respondents

were the respondent Nos.1 and 2 in MVC No.1811/2012 on the

file of the Senior Civil Judge and MACT, Arakalgud. For the

purpose of convenience, the parties will be referred to

henceforth according to their ranks before the Tribunal.

3. On 25.07.2012 at 3.45 p.m. when the claimant was

traveling on motorcycle bearing registration No.KA-53-S-8484

as the pillion rider near tempo stand, White field main road

within the jurisdiction of White field Traffic Police Station, the

lorry bearing No.TN-23-AS-8674 hit the motor cycle and caused

the accident. The claimant fell on the ground and the left front

wheel of the lorry ran over his right leg causing him grievous

injuries. Regarding the accident on the complaint of rider of the

motor cycle, White Field Traffic Police registered FIR as per

M.F.A.No.202/2018

Ex.P1 in Crime No.113/2012 of their Police Station against the

driver of the lorry. On investigation the Police filed the charge

sheet as per Ex.P5 against the driver of the lorry for the

offences punishable under Section 279 and 338 IPC. At the

relevant time respondent Nos.1 and 2 were the registered

owner and Insurer of the offending lorry.

4. The claimant filed MVC No.1811/2012 before the

Senior Civil Judge and MACT, Arakalgud against the respondents

claiming compensation of Rs.50,00,000/- on the ground that

the accident occurred due to actionable negligence on the part

of the driver of the lorry. He further contended that due to the

injuries suffered in the accident, he has suffered permanent

physical disability, consequently lost the future earnings. He

contended that he is entitled to compensation on the heads of

pain and suffering, medical expenses, future medical expenses

etc. from the respondents.

5. Respondent No.1 did not contest the petition.

Respondent No.2 contested the petition denying the actionable

negligence on the part of the driver of the lorry, injuries

suffered by the claimant, his age, occupation and income.

M.F.A.No.202/2018

Respondent No.2 further contended that the accident occurred

due to the negligence of the rider of the motor cycle, the

claimant in collusion with the Police and other authorities got

implicated the lorry to make wrongful gain. Respondent No.2

denied its liability to pay the compensation.

6. In support of his claim, the claimant got himself

examined as PW.1 and the doctor as PW.2. On his behalf,

Ex.P1 to P22 were marked. The official of respondent No.2 was

examined as RW.1 and on their behalf, Exs.R1 to R3 were

marked.

7. The Tribunal on hearing the parties and examining

the evidence, by the impugned award held that the accident

occurred due to the actionable negligence on the part of the

driver of the lorry. The Tribunal considering the evidence of

PW.2 the doctor assessed the permanent physical disability of

the claimant at 23% to the whole body and his age at 22 years.

The Tribunal notionally assessed the income of the claimant at

Rs.5,000/- per month, applied 18 multiplier and awarded

compensation of Rs.2,48,400/- on the head of loss of future

M.F.A.No.202/2018

earnings. The Tribunal in all awarded compensation of

Rs.13,39,500/- on different heads as per the table below.

      Sl.                Particulars                  Compensation
      No.                                             awarded in Rs.

       1.   Pain and agony                                 75,000/-
       2.   Medical expenses                             7,51,100/-
       3.   Food and conveyance and attendant              20,000/-
            charges
       4.   Loss of future income due to disability      2,48,400/-
       5.   Loss of income during laid up period            5,000/-
       6.   Loss of future amenities                       20,000/-
       7.   Future operation                             2,20,000/-
                             Total                      13,39,500/-

8. The Tribunal held that respondent No.2/Insurer is

liable to pay the said compensation with interest at 6% p.a.

payable within two months from the date of the award failing

which that shall carry interest at 9% p.a.

Submissions of Sri Shamanth K. for Sri Rahul Rai, learned counsel for the claimant:

9. Having regard to the nature of the injuries and

evidence of PWs.1 and 2, the compensation awarded on the

heads of pain and suffering, loss of amenities is on the lower

side. The Tribunal committed grave error in assessing the

permanent physical disability at 23% contrary to the evidence

of the doctor.

M.F.A.No.202/2018

Submissions of Smt.Geetha Raj, learned counsel for respondent No.2:

10. The compensation awarded is based on the evidence

adduced by the claimant himself. The claimant had not

produced actual proof of income. Therefore, the Tribunal was

justified in assessing the income notionally based on the

prevailing rates of wages. The compensation awarded on all the

heads is reasonable one.

ANALYSIS

11. The respondents have not challenged the findings of

the Tribunal that the accident occurred due to the actionable

negligence of the driver of the lorry bearing No.TN-23-AS-8674,

the quantum of compensation or their liability to pay the

compensation. Therefore, the correctness of findings of the

Tribunal regarding the percentage of permanent physical

disability and the quantum of compensation remain for

consideration.

12. Admittedly PW.1 at the time of the accident was

aged 22 years. As per the evidence and the claim petition he

was an engineering student. Ex.P9 is the study certificate

issued by Venkateshwara College of Engineering which shows

that at the time of the accident he was studying in IV semester

M.F.A.No.202/2018

of BE Civil Engineering course in the said college. Ex.P10 shows

that the claimant was an athlete. Ex.P9 further indicates that

the claimant had taken admission to Civil Engineering course

after completion of diploma course. That goes to show that the

claimant though was still studying BE Civil Engineering, he had

the potentiality to work and earn. Considering the demand for

the diploma holders in Civil Engineering as well as Civil

Engineers, the Tribunal was not justified in assessing the

income on par with the unskilled labourers and taking the

notional income at Rs.5,000/- per month.

13. It is settled law that in the cases involving motor

accident claims in assessing the income of the victim some

guess work is inevitable. Considering the qualification and

eligibility of the claimant the Tribunal should have assessed the

income of the claimant at Rs.10,000/- per month. As per PW.2

the doctor who treated the claimant and Exs.P6, P7 & P8 the

wound certificate, discharge summary and disability certificate

respectively, the claimant had suffered the following injuries:

" Type III 'C' open fracture both bones of right leg (Degloving injury right leg)"

M.F.A.No.202/2018

14. As per Ex.P7 the discharge summary, when claimant

was brought to the hospital the following injuries were found on

his body:

"Right leg severe degloving injury leg muscles of anterior, medial and lateral compartment exposed. Deformity/tenderness present."

15. As per PW.2/claimant's own witness and Ex.P8 the

disability certificate, the claimant had suffered 23% permanent

physical disability to the whole body. The Tribunal had rightly

accepted the same at 23%. The applicable multiplier to the age

of the claimant is 18. The annual loss of future earnings comes

to Rs.27,600/- (1,20,000X23/100). Therefore, the

compensation payable on the head of loss of future earnings

comes to Rs.4,96,800/- (27,600 X 18).

16. As stated above, the claimant had suffered one

fracture and degloving injuries. He was treated as in-patient in

the hospital from 25.07.2012 to 09.08.2012, 27.08.2012 to

30.08.2012 and 26.12.2012 to 28.12.2012 i.e., for a period of

23 days. Considering the nature of injuries and the period of

hospitalization the compensation awarded on the head of pain

and suffering is just one. The compensation on the head of

M.F.A.No.202/2018

medical expenses at Rs.7,51,100/- was awarded based on the

medical bills produced by the claimant. That needs to be

maintained.

17. Looking to the period of hospitalization, the nature

of injuries and treatment underwent by him, the compensation

awarded on the head of diet, conveyance and attendant charges

is on the lower side. He has travelled from his home town,

Arakalgud to Bengaluru. Therefore, awarding of Rs.30,000/- on

the said head meets the ends of justice. Since the claimant was

still student and had no actual income, he is not entitled to any

compensation on the head of loss of income during the laid up

period.

18. The evidence of PW.1/claimant and PW.2/doctor

shows that he had compound fracture of right tibia and fibula III

C, the blood circulation in right leg had completely stopped

and he had right foot drop. His fracture was fixed by

conducting surgery with external fixation and wound

debridement was done. Skin grafting was also done. He

attended the hospital 17 times for follow up treatment. The

evidence of PW.2 shows that the claimant was not able to sit,

M.F.A.No.202/2018

squat, bend his right leg, climb stairs, use the Indian toilet etc.

Further, he was not able to walk long distance, lift the weight

and run etc.

19. As already noted, the claimant was student as well

as athlete. By such injuries he has suffered loss of amenities.

Therefore, the Tribunal should have awarded compensation of

Rs.1,00,000/- on the head of loss of amenities. Future medical

expenses awarded was based on the evidence of PW.2. That

needs to be maintained. Therefore, just compensation payable

to the claimant is as follows:

      Sl.            Particulars           Compensation
      No.                                  awarded in Rs.
      1.    Pain and agony                         75,000/-
      2.    Medical expenses                     7,51,100/-
      3.    Diet and conveyance and                30,000/-
            attendant charges
      4.    Loss of future income due to         4,96,800/-
            disability
      6.    Loss of amenities                    1,00,000/-
      7.    Future medical expenses              2,20,000/-
                       Total                  16,72,900/-
                                           Rounded off to
                                           Rs.16,73,000/-

20. For the aforesaid reasons, the appeal deserves to be

allowed in part. Hence the following: