Karnataka High Court
Pavan vs Vijaykumar And Anr on 8 April, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No.201413 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE K V ARAVIND
MISCL. FIRST APPEAL NO.201413 OF 2022 (MV-I)
BETWEEN:
PAVAN
S/O SIDDANGOUDA BIRADAR
AGE: 26 YEARS
OCC: AGRICULTURE NOW
R/O VILLAGE KORAWAR,
TQ: SINDAGI, DIST: VIJAYAPUR
HOUSE NO.2-910/13/571
RAJAPUR-BADEPUR
G.D.A. LAYOUT
KALABURAGI - 585 101.
Digitally signed ...APPELLANT
by VARSHA N
RASALKAR
Location: HIGH (BY SRI BABU H. METAGUDDA, ADVOCATE)
COURT OF
KARNATAKA
AND:
1. VIJAYKUMAR
S/O CHANDRASHEKHAR UPPAR
AGE: MAJOR
OCC: DRIVER CUM OWNER OF
BAJAJ TEMPO TRAX CRUISER
NO.MH-13/N-9514
R/O VILLAGE KORAWAR
TQ: SINDAGI
DIST: VIJAYAPURA - 585 102.
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MFA No.201413 of 2022
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
COMPLEX, OPP. SANGAM TALKIES
SUPER MARKET
KALABURAGI - 585 101.
...RESPONDENTS
(BY SMT PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
V/O DATED 22.03.2024, NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS IN
M.V.C. NO.196/2020 ON THE FILE OF III ADDITIONAL SENIOR
CIVIL JUDGE AND M.A.C.T. AT KALABURAGI, ALLOW THIS
APPEAL AND MODIFY THE JUDGMENT AND AWARD DATED
03.02.2022 PASSED IN M.V.C. NO.196/2020 BY THE III
ADDITIONAL SENIOR CIVIL JUDGE AND M.A.C.T. AT
KALABURAGI AND ENHANCING THE COMPENSATION FROM
RS.19,90,342/- WITH 6% INTEREST TO RS.80,00,000/- WITH
12% INTEREST, GRANT SUCH OTHER AND FURTHER RELIEFS
AS THIS HPN'BLE COURT DEEMS FIT, IN THE CIRCUMSTANCES
OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS MFA COMING ON FOR ADMISSION THIS DAY
K.V.ARAVIND J., DELIVERED THE FOLLOWING:
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MFA No.201413 of 2022
JUDGMENT
Though this appeal is listed for admission, with the
consent of both the learned counsel, it is taken up for
disposal.
This appeal against the judgment and award in MVC
No.196/2020 dated 03.02.2022 on the file of the III-Addl.
Senior Civil Judge & MACT, Kalaburagi (for short, 'the
Tribunal') by the claimant seeking enhancement of
compensation.
2. The claimant met with an accident on
18.07.2019 while riding his Bajaj Pulsar motorcycle
bearing Reg.No.KA-28/EV-2470 involving Bajaj Tempo
Trax Cruiser vehicle bearing Reg.No.MH-13/N-9514. It is
stated in the claim petition that the claimant is aged 24
years and earning Rs.10,00,000/- per annum from
agriculture. It is further stated that the claimant has
incurred medical expenses of Rs.15,00,000/- and would
require a sum of Rs.25,00,000/- for future medical
expenses.
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appeared through their counsel. Respondent No.1 filed
statement of objection denying petition averments. It is
further stated that the driver of the offending vehicle
possessed valid driving licence and any compensation if
awarded, the same to be directed to be indemnified by
respondent No.2/insurer.
4. Respondent No.2 filed objections denying the
age, income and avocation of the claimant. It is further
contended that the accident occurred due to rash and
negligent riding of the rider of the motorcycle. The petition
has been filed in collusion with the police and the owner of
offending vehicle. Thus, denied its liability to pay the
compensation.
5. The Tribunal on the basis of the pleadings
framed the following issues:
1) Whether the petitioner proves that on
18.07.2019 at about 5:00 p.m., accident
took on Korwar-Kokatanur road near the
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land of one Sharnappa s/o Malkajappa
Angadi, due to rash and negligent driving
by the driver of Bajaj Tempo Trax Cruiser
vehicle bearing Reg.No.MH-13/N-9514 as
a result the petitioner has sustained
grievous injuries?
2) Whether the petitioner is entitled for the
compensation? If so, how much and from
whom?
3) What order or Award?
6. The claimant examined himself as PW1,
examined doctor as PW.2 and marked Exs.P1 to P22. The
respondents have not produced any oral evidence nor
produced any documents.
7. The Tribunal considering the amputation of
right leg below knee and assessment of disability at 65%
by the doctor, considered the whole body disability at 45%
and assessed compensation considering the income at
Rs.13,250/- per month and age as 24 years. The total
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compensation among various other heads as awarded by
the Tribunal is as under:
Heads Amount
Pain and suffering Rs.40,000/-
Medical expenses Rs.5,62,692/-
Loss of earning during laid up period Rs.39,750/-
Loss of future earning, disability Rs.12,87,900/-
Nutritious food and attendant charges Rs.30,000/-
Loss of future amenities and loss of Rs.30,000/-
happiness
Total Rs.19,90,342/-
8. Heard Sri. Babu H. Metagudda, learned counsel
for the claimant and Smt. Preeti Patil Melkundi, learned
counsel for respondent No.2/Insurance Company. Notice
to respondent No.1 is dispensed with vide order dated
22.03.2024.
9. Learned counsel for the appellant submits that
the percentage of disability considered by the Tribunal at
45% is on the lower side. The claimant has suffered
amputation of right leg below knee due to which the
disability considered at 45% is on the lower side. Learned
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counsel further submits that the claimant was an
agriculturist and due to amputation, he cannot continue
his agricultural activities. The amputation has resulted in
loss of future earning also. In view of the said disability,
the Tribunal committed an error in not awarding any
compensation towards future prospects. Learned counsel
further submits that considering the nature of injuries,
compensation awarded under other heads is on the lower
side. Learned counsel further submits that the claimant
was bachelor and the Tribunal committed an error in not
awarding any compensation towards loss of marriage
prospects. Learned counsel further submits that the
Tribunal committed an error in not awarding any
compensation towards fixing artificial leg. Thus, prays to
re-assess the compensation.
10. Per contra, learned counsel for the insurer
submits that the Tribunal has rightly considered the
income as suggested by the Karnataka State Legal
Services Authority in the absence of any evidence to prove
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the income. The doctor/PW.2 has issued disability
certificate as per Ex.P9 and assessed whole body disability
at 70%. The Tribunal has rightly assessed the disability at
45%. It is further submitted that as the claimant has not
produced any evidence to prove that he has suffered any
loss of income after the accident, not entitled for future
prospects. It is submitted that the compensation awarded
under other heads is just and reasonable and does not
warrant interference by this Court. In rebutting the
contention of the claimant regarding compensation
towards fixing artificial limb, the learned counsel submits
that as there is no medical evidence or any estimation
regarding feasibility of fixing artificial limb, the Tribunal
has rightly not awarded any compensation. Thus, prays to
dismiss the appeal.
11. We have considered the contentions of both
learned counsel, perused the appeal papers.
12. The accidental injuries due to the accident that
has taken place on 18.07.2019 involving motorcycle
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bearing Reg.No.KA-28/EV-2470 and Tempo Trax Cruiser
bearing Reg.No.MH-13/N-9514 is not in dispute in this
appeal. Though the claimant has contended that he was
earning Rs.10,00,000/- per annum from agriculture, no
documentary evidence has been produced in this regard.
Therefore, the Tribunal is justified in assessing the
notional income at Rs.13,250/-p.m for the accident of the
year 2019 on the basis of the chart prepared by the
Karnataka State Legal Services Authority.
13. It is not in dispute that due to the accident, the
claimant has suffered amputation to right leg below knee.
The claimant has produced Ex.P20/RTC extracts to
demonstrate holding of agricultural land. The amputation
of leg below knee would not permit the claimant to
carryon the agricultural activities as he used to do prior to
the accident. Though the agricultural income as claimed is
not proved, considering the nature of injuries i.e.
amputation of right leg below knee, it would deprive the
future earnings of the claimant. We deem it appropriate
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to award future prospects at 40% considering the age of
the claimant as 24 years.
14. The claimant has examined doctor as PW.2 and
marked disability certificate at Ex.P9. As per the evidence
of PW.2 and Ex.P9, it is not in dispute that the claimant
has suffered amputation to right leg below knee. Though
the doctor has assessed the disability due to the
amputation of right leg at 65%, the Tribunal without any
basis has considered the disability at 45%. The
II-schedule to the Employee's Compensation Act, provides
for guidance to assess the loss of earning capacity due to
the specific injuries. As per II-schedule to the Employee's
Compensation Act, amputation of leg below knee is
considered at 50%. Hence, we hold that the disability is to
be considered at 50%. The age of the claimant as 24
years is not in dispute and the multiplier applicable for the
age group 20-25 is '18'. Thus, the total compensation
under the head loss of future earning is assessed as
under:
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Rs.13,250/- + 40% = Rs.18,550/-
Rs.18,550/- x 12 x 18 x 50% = Rs.20,03,400/-.
15. Due to the accidental injuries, the claimant was
inpatient for 19 days and would require at least three
months to recover from the injuries. During the period of
recovery from injuries, he has suffered loss of earning.
Considering the nature of injuries i.e. amputation of right
leg below knee and the required surgeries, the claimant
would have suffered from pain. On consideration of the
above aspects, we deem it appropriate to award a sum of
Rs.1,00,000/- towards pain and suffering as against
Rs.40,000/- awarded by the Tribunal.
16. Having regard to the nature of injuries and
disability suffered by the claimant, the compensation
awarded by the Tribunal towards loss of amenities and
happiness at Rs.30,000/- is on the lower side and the
same is enhanced to Rs.75,000/-.
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17. It is not in dispute that the claimant was
unmarried. In view of accidental injuries resulting in
amputation of right leg below knee, he has lost better
marriage prospects. The Tribunal committed an error in
not awarding any compensation towards loss of marriage
prospects. We deem it appropriate to award Rs.1,00,000/-
towards 'loss of marriage prospects'.
18. Learned counsel for the claimant has contended
that compensation for fixation of artificial limb is to be
awarded. The accident is of the year 2019, the Tribunal
has decided the claim petition during 2022. No evidence
of the doctor requiring fixation of artificial limb nor any
estimation of cost required to fix the artificial limb is
placed before the Tribunal. Even this appeal has been filed
in the year 2022 and till date no evidence is placed on
record suggesting the feasibility of fixing artificial limb or
any estimation for the same. In the absence of any
evidence, we hold that the Tribunal was justified in not
awarding any compensation towards artificial limb. The
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compensation awarded under the head 'medical expenses',
'loss of income during laid up period' and 'nutrition and
attendant charges' is remained undisturbed.
19. Thus, the claimant is entitled to total
compensation as under:
Heads Amount Amount
awarded by awarded by
the Tribunal this Court
Pain and suffering Rs.40,000/- Rs.1,00,000/-
Medical expenses Rs.5,62,692/- Rs.5,62,692/-
Loss of earning during laid Rs.39,750/- Rs.39,750/-
up period
Loss of future earning, Rs.12,87,900/- Rs.20,03,400/-
disability
Nutritious food and Rs.30,000/- Rs.30,000/-
attendant charges
Loss of future amenities Rs.30,000/- Rs.75,000/-
and loss of happiness
Loss of marriage prospects ---- Rs.1,00,000/-
Total Rs.19,90,342/- Rs.29,10,842/-
Enhancement Rs.9,20,500/-
20. In the result, we pass the following:
ORDER
i) The appeal is allowed in part.
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ii) The impugned judgment and award of the
Tribunal is modified.
iii) The claimant is entitled to total
compensation of Rs.29,10,842/- along
with interest at 6% per annum as against
Rs.19,90,342/- awarded by the Tribunal.
iv) Respondent No.2/Insurance Company shall
deposit the compensation amount with
accrued interest before the Tribunal within
a period of six weeks from the date of
receipt of a certified copy of this judgment.
v) The deposit and release shall be made as
per the award of the Tribunal.
vi) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
SDU
CT:VK
