Karnataka High Court
Chandramohan Lingam vs Smt.Sudha W/O Madhukesh Angadi on 28 November, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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MFA No. 101433 of 2020
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 101433 OF 2020 (MV-I)
BETWEEN:
CHANDRAMOHAN LINGAM
S/O BALASUNDRAM LINGAM
AGE:54 YRS,
OCC: ARCHITECT ENGINEER,
R/O: KESHWAPUR CIRCLE,
HUBBALLI,
DIST: DHARWAD
...PETITIONER
(BY SRI. I C PATIL., ADVOCATE)
AND:
1. SMT.SUDHA W/O MADHUKESH ANGADI
SHIVAKUMAR AGE:43 YRS, OCC: BUSINESS,
HIREMATH
R/O PLOT NO.6, RAMGHAT ROAD,
Digitally signed GANESHPUR, BELAGAVI-591108
by SHIVAKUMAR 2. THE MANAGER
HIREMATH
Date: 2023.12.05 BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.,
11:10:13 +0530
GE PLAZA, AIRPORT ROAD,
YERWADA, PUNE-41106
...RESPONDENTS
(BY SRI.S.K.KAYAKAMATH., ADVOCATE FOR R2;
R1 SERVED)
THIS IS MFA FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 07.09.2019
PASSED IN MVC NO.307/2016 ON THE FILE OF THE IX ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, BELAGAVI.
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MFA No. 101433 of 2020
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
VIJAYKUMAR A.PATIL DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and
award dated 07.09.2019 passed in MVC No.307/2016 by
the IX Addl. District and Sessions Judge and Addl. MACT,
Belagavi (hereinafter referred to 'Tribunal') whereby the
claim petition filed by the injured claimant was allowed by
awarding compensation of Rs.7,65,600/- along with
interest at the rate of 6% p.a. from the date of petition till
deposit. Being aggrieved by the quantum of compensation,
the injured claimant has filed the present appeal seeking
enhancement of compensation.
2. Brief facts giving rise to filing of this appeal are
that the claimant along with his friends were proceeding
towards Belagavi from Hubballi in car bearing registration
No.KA-22/P-8222 on 17.06.2015. The said car was driven
by its driver in a high speed, in a rash and negligent
manner which resulted in causing accident. It is averred
that the claimant sustained grievous injuries, he took
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treatment in Lake View Hospital, Belagavi and incurred
huge expenses. It is further averred that the claimant was
hale and healthy prior to the accident, was 50 years on the
date of accident, was Engineer by profession and was
earning Rs.5,00,000/- per annum. Due to the accidental
injuries, the claimant has suffered physical permanent
disability and unable to carry out his daily activities
resulted in financial loss. Hence he sought for
compensation before the Tribunal.
3. The respondent No.2 filed objections denying
the age, occupation, income of the injured and injuries
sustained in the road accident. The insurance company
denied the averment of taking treatment by the claimant
in different hospitals. It is contended that the accident
took place due to bad maintenance of the road and driver
of the car was carrying the persons more than the seating
capacity. It is further contended that the alleged accident
took place on 17.06.2015 however FIR was registered on
18.06.2015. Hence, there is delay in filing the complaint
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which creates suspicion about the accident in question. It
is also averred that the owner of the car has violated the
terms and conditions of the policy. Hence, the insurance
company is not liable to pay any compensation to the
claimant.
4. The Tribunal framed issues and recorded the
evidence of the parties. The injured claimant examined
himself as PW-1 and examined two doctors as PW-2 and
PW-3 and got marked Exs.P-1 to P-35. The respondents
have not adduced any oral evidence, with the consent got
marked Ex.R-1, insurance policy. The Tribunal considering
the material evidence on record, awarded total
compensation of Rs.7,65,600/- with interest at the rate of
6% p.a.
5. Learned counsel Sri I.C.Patil appearing for
appellant submits that the Tribunal has committed an
error in considering the disability of the injured at 45%
and considering 15% as loss of earning capacity which is
contrary to the evidence on record. It is submitted that
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the Tribunal has failed to consider the Exs.P-11, P-12 and
P-15 which clearly depict the injuries suffered by the
appellant. The Tribunal has failed to take note that the
appellant has taken treatment not only for the injuries
suffered in the road accident but also to the kidney and
eye treatment which has caused due to the accident in
question. It is further submitted that the appellant has
examined PW-2 Dr.Basavaraj Patil and PW-3 Dr. Aravind
L. Tenagi, who is an Ophthalmologist have clearly deposed
that the appellant has suffered injuries to his kidney and
lost eyeball due to the accident in question. Hence, the
Tribunal ought to have considered 100% physical disability
of the appellant and ought to have awarded the
compensation including the loss of future prospects of the
appellant.
6. It is also submitted that the Tribunal has
committed an error in assessing the income of the injured
at Rs.12,000/- p.m. contrary to the evidence on record. It
is submitted that the award of compensation under the
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heads pain and suffering, food, transportation and
attendant charges, loss of income during stay in the
hospital and loss of amenities of life is on the lower side.
The Tribunal has not awarded any compensation for future
medical treatment. Hence, he seeks to allow the appeal
by enhancing the compensation on the aforesaid heads.
7. Per contra, Sri S.K. Kayakmath learned counsel
for the respondent/insurance company supports the
impugned judgment and award of the Tribunal and
submits that the Tribunal assigned detailed reasons in the
impugned judgment for assessing the disability of the
appellant and considered 15% as loss of earning capacity
due to the injuries sustained in the accident. It is
submitted that the claim of the appellant that the
appellant has suffered injuries to the kidney and eye is not
due to the accident in question as the appellant has failed
to establish the nexus between the treatment taken to the
kidney, eye and the accident in question. Hence, there are
no injuries sustained by the appellant to the kidney and
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the eye as contended by the appellant. It is submitted
that the Tribunal in the absence of any evidence on record
has assessed the income of the appellant injured at
Rs.12,000/- and awarded just and proper compensation
on other heads which does not call for any interference in
the appeal. He seeks to dismiss the appeal.
8. Having heard the learned counsel for the
appellant, learned counsel for the respondent No.2,
perused the memorandum of appeal and Tribunal records.
9. The only point that arises for consideration in
this appeal is,
"Whether the award of compensation by
the Tribunal is jut and proper?"
10. The answer to the above point is in the negative
for the following reasons:
(a) The appellant has sustained grievous injuries in the
road accident which has taken place on 17.06.2015
is not in dispute and it is also not in dispute that the
vehicle bearing registration No.KA-22/P-8222 was
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involved in the road accident. On close perusal of
Ex.P-11 the wound certificate on record clearly
depicts that the appellant has suffered simple
injuries as well as grievous injuries. The injury
No.2 referred at Ex.P-11 refers to fracture and
other medical records clearly indicate that the
appellant has undergone a surgery and implants
were inserted. On perusal of Ex.P-13 disability
certificate issued by PW-2 who has entered into the
witness box and reiterated the contents of Ex.P-13.
On perusal of Ex.P-13 and oral testimony of PW-2,
it is evident that the doctor has opined that the
injured has suffered disability at 60% to the lower
limb. No doubt, PW-2 is a treated doctor insofar as
the treatment related to injuries and fractures
referred at Ex.P-11. On close perusal of oral
testimony of PW-2, he has deposed that the
appellant has taken treatment for kidney in the
same hospital. However, in the cross-examination
he has admitted that he has not provided the said
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treatment. On perusal of the oral testimony of PW-
3 Ophthalmologist who has deposed stating that the
appellant has taken treatment in Lake View Hospital
and further stated that the appellant has no eyeball
in orbit socket because eye was eviscerated since it
had infected and he has opined that the appellant
has suffered 40% disability. However, PW-3 has
not stated nor explained any nexus of removal of
eyeball of the appellant with the accident in
question. On meticulous consideration of the
evidence PW-2 and Exs.P-17, P-18, though it is
contended that the appellant has suffered injuries
to the kidney and eye, there is no nexus between
the treatment taken by the appellant to the kidney
ailment and eye injury with the accident in
question.
(b) On bare perusal of the medical evidence on record
indicates that the appellant has taken treatment
from 2015 to 2017 not only for the injuries suffered
in the road accident but to the kidney and to the
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eye injuries. However, there is no nexus
whatsoever between the treatment taken by the
appellant to the kidney ailment and the eye
infection with the accident and evidence available
with regard to same. On close perusal of Ex.P-14,
the medical records indicate that creatinine level of
the appellant is shown at 3.1 which is abnormal and
the normal range of creatinine would be between
0.7 to 1.3. The document at Ex.P-14 and other
evidence on record clearly indicates that the
appellant was severely diabetic and he could not
take proper treatment for the same resulted in
kidney ailment and infection to the eye. Hence,
this Court does not find any merit in the contention
urged by the appellant with regard to considering
the disability of the appellant at 100%. On perusal
of the oral testimony of PW-2 who is orthopaedic
consultant and treated doctor, and on perusal of the
injuries referred at Ex.P-11 and P-12 and the
disability certificate at Ex.P-13, this Court is of the
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considered view that the Tribunal ought to have
assessed the disability on higher side and ought to
have assessed 25% as loss of earning capacity. This
Court on appreciation of the medical evidence on
record, is of the considered view that the appellant
injured has suffered loss of earning capacity due to
the injuries in the accident is 25% as against 15%
assessed by the Tribunal.
(c) The Tribunal has assessed the income of the
appellant at Rs.12,000/- p.m. which is contrary to
the evidence on record. Ex.P-26 and the income tax
returns filed by the appellant along with memo
dated 17.07.2023 for the years 2010-2011, 2011-
2012, 2012-2013, 2013-2014 and 2015-2016 is
considered and taking into account the accident is
the year 2015, the average income of the preceding
3 years declared by the appellant is taken into
account, the average income would be
Rs.2,84,625/- per annum. Hence, we assess the
income of the appellant at Rs.23,718/- p.m.
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(d) The Tribunal has committed an error in applying 11
as multiplier. Taking note of the Aadhar card and
PAN card the appellant's date of birth is 02.05.1965
and as on the date of accident his age was 50
years. Hence, appropriate multiplier would be 13.
Accordingly, the appellant is entitled for loss of
earning capacity as under:
Rs.23,718/- x 12 x 13 x 25% = 9,25,002/-
(e) Taking note of the fact that the appellant was
inpatient from 17.06.2015 to 29.06.2015 for initial
period and thereafter following treatment and he
has undergone major surgery and implants were
inserted in his body. The additional Rs.25,000/- is
awarded under the head pain and suffering.
(f) Similarly the Tribunal has committed error in not
awarding any compensation for future medical
expenses. No doubt, the PW-2 and PW-3 have not
stated anything with regard to future medical
expenses. However, taking into account the
treatment which the appellant is required to take to
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remove implants it would be just and appropriate to
award Rs.25,000/- for the future medical expenses.
(g) Taking into account the nature of injuries suffered
and treatment taken by the appellant additional
Rs.25,000/- is awarded under the head food,
transportation attendant charges including loss of
income during his stay in the hospital.
(h) The compensation awarded under the head medical
expenses and loss of amenities is unaltered.
11. Thus, the appellant/claimant would be entitled
to modified compensation as under:
Sl.No. Particulars Amount
1. Pain & suffering Rs.1,00,000/-
2. Medical expenses Rs.3,78,000/-
3. Loss of earning capacity Rs.9,25,002/-
4. Loss of future amenities of Rs.50,000/-
life
5. Towards food, transportation Rs.50,000/-
attendant charges including
loss of income during his
stay
6. Future medical expenses Rs.25,000/-
Total Rs.15,28,002/-
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12. Thus, the appellant/claimant would be entitled
to total compensation of Rs.15,28,002/- as against
Rs.7,65,600/- awarded by the Tribunal.
13. Hence, we pass the following order.
ORDER
(i) The appeal is allowed in part.
(ii) The judgment and award dated 07.09.2019
passed in MVC No.307/2016 by the IX Addl.
District and Sessions Judge and Addl. MACT,
Belagavi, is modified to the extent that the
claimant would be entitled to total
compensation of Rs.15,28,002/- as against
Rs.7,65,600/- awarded by the Tribunal.
(iii) The enhanced compensation amount shall
carry interest at the rate of 6% per annum
from the date of petition till date of
payment.
(iv) Respondent/insurance company shall deposit
the enhanced compensation amount along
with accrued interest before the Tribunal
within a period of six weeks from the date of
receipt of certified copy of this judgment.
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(v) Registry to transmit the records to the
Tribunal forthwith.
(vi) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
Naa
