Karnataka High Court

Srinivasa vs Sree Nirvana Mahaswamigalu on 16 April, 2024

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                                                            NC: 2024:KHC:15135
                                                          MFA No. 600 of 2018




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 16TH DAY OF APRIL, 2024
                                             BEFORE

                             THE HON'BLE MR JUSTICE VENKATESH NAIK T

                      MISCELLANEOUS FIRST APPEAL NO. 600 OF 2018 (MV-I)

                      BETWEEN:

                      SRINIVASA
                      S/O LATE VENKATESH
                      HINDU NOW AGED ABOUT 58 YEARS
                      R/AT TMC COLONY
                      BUDIKERE ROAD
                      KANAKAPURA TOWN & TALUK
                      RAMANAGARA DISTRICT
                                                               ...APPELLANT
                      (BY SRI. T.C. SATHISHKUMAR., ADVOCATE)
                      AND:

                      1.   SREE NIRVANA MAHASWAMIGALU
                           DEGULA MUTT
                           KANAKAPURA TOWN
                           KANAKAPURA TALUK
                           RAMANAGARA DISTRICT.
Digitally signed by
MOUNESHWARAPPA
NAGARATHNA
Location: HIGH
COURT OF
                      2.   THE BRANCH MANAGER
KARNATAKA
                           UNIVERSAL SOMPO GENERAL INSURANCE CO LTD.,
                           KVD TOWERS, II FLOOR
                           NO.7/3, OLD MADRAS ROAD
                           OPP. 100 FT. ROAD
                           INDIRANAGARA
                           BANGALORE-38
                                                             ...RESPONDENTS

                      (BY NOTICE TO R1 IS DISPENSED WITH V/O/D: 12.07.2022
                       SRI.RAVI S. SAMPRATHI., ADVOCATE FOR R2)
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                                        NC: 2024:KHC:15135
                                       MFA No. 600 of 2018




     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 25.09.2017 PASSED IN MVC
NO.111/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MACT, KANAKAPURA. PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

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


                       JUDGMENT

This appeal is filed by the claimant aggrieved by the

judgment and award dated 25.09.2017 passed in M.V.C.

No.111 of 2014 (Old MVC No.366/2013) on the file of the

Senior Civil Judge and Motor Accident Claims Tribunal,

Kanakapura, whereby, the Tribunal awarded a sum of

Rs.2,19,500/- as compensation.

2. For the sake of convenience, the parties are

referred to as they are referred to in the claim petition

before the Tribunal.

3. The claim petition was filed seeking

compensation of Rs.21,50,000/- on account of the injuries

sustained by the claimant in the road traffic accident that

took place on 10-09-2013 at about 9.00 a.m. when the

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claimant was standing in front of Sri Vidya Ganapathi

Temple at Sri Krishna Kalyana Mantapa, Kanakapura, at

that time the driver of Tata Mobile Car bearing

Registration No.KA-05-MA-7675 came in a rash and

negligent manner in a reverse direction and dashed to the

claimant. As a result, the claimant fell down and vehicle

run over on his both legs, thus, the claimant sustained

grievous injuries. Thereafter, the claimant was shifted to

Kanakapura Government Hospital and thereafter, Pancea

Hospital, Bangalore, where he was treated as an in-patient

from 10.09.2013 to 04.10.2013. He was diagnosed with

the crush injury of right foot and fractures of left foot with

2nd, 3rd metatarsal bone and on left hand, lacerations over

right forehead with bone deep, over palmar aspect of base

of left Index finger with muscle deep, swelling and

tenderness over left foot, with dorsum of right foot

extending to right ankle with bone deep bleeding

abrasions over front of left knee, front of upper 3rd left leg,

tenderness over left shoulder, over tip of 2nd, 3rd, 4th and

5th digit of left hand also other injuries all over the body.

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Hence, the claimant underwent surgeries in the hospital

and he was discharged with an advice for follow up

treatment.

4. The Tribunal considering the evidence on record

at Exs.P.1 to P.20 and the oral evidence of P.Ws. 1 to 3,

granted compensation of Rs.2,19,500/-.

5. The learned counsel for the appellant/claimant

submits that the Tribunal has failed to consider the injuries

sustained by the claimant and the amount that was spent

towards treatment. The injuries sustained by the claimant

are grievous in nature and the right leg of claimant is

amputated and the Doctor has issued disability certificate

for a tune of 70% of permanent disability. He further

submitted that the compensation granted by the Tribunal

was not just and reasonable. Further, the Tribunal has not

at all granted any compensation under the heads, Loss of

laid-up period and Loss of amenities. Further, the Tribunal

has not granted fair compensation under the heads, Loss

of Future income, Pain and Sufferings, Travelling

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expenses, Conveyance, Attendant charges and Loss of

disability. Hence, he prayed to allow the appeal.

6. Learned counsel for respondent No.2/ Insurance

Company submits that the Tribunal considering the

medical evidence as well as the oral evidence and other

exhibited documents has reasonably granted the

compensation. He further submitted that no grounds are

made out for seeking enhancement of compensation.

7. As there is no dispute regarding the injuries

sustained by the claimant in a road traffic accident

occurred on 10.09.2013 due to rash and negligent act of

the Tata Mobile Car bearing registration No. KA-05-MA-

7675, by its driver and the liability of the insurer of the

offending vehicle, the only point that arises for Court

consideration in the appeal is:

"Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?"

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8. After hearing the learned counsel appearing for

the parties and perusing the judgment and award of the

Tribunal, the Court is of the view that the compensation

awarded by the Tribunal is not just and reasonable, it is on

the lower side and hence, it is required to be enhanced.

9. As per Ex.P7-Wound Certificate, the claimant

sustained the following injuries:

1. Laceration over right forehead measuring 3cm x 2cm x bone depth.

2. Laceration over palmar aspect of base of left index finger measuring 2cm x1cm x muscle depth.

3. Swelling and tenderness over left foot.

4. Degloving injury present over the dorsum of right foot extending to right ankle measuring 16cm x 12cm x bone depth. Bleeding present at the injury site.

5. Abrasion over front of left knee measuring 3cm x 2cm.

6. Abrasion over front of upper third of left leg measuring 4cm x 2cm.

7. Tenderness over left shoulder.

8. Abrasion present over tip of 2nd, 3rd, 4th and 5th digits of left hand, each measuring 1cm x 0.5cm.

9. Tenderness over left hand.

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As per the opinion of the Doctor, injury Nos.1,2,5,6,7

and 8 are simple in nature and injury Nos. 3,4 and 9 are

grievous in nature. The claimant was treated at

Kanakapura Government Hospital and thereafter, at

Pancea Hospital, Bengaluru, from 10.09.2013 to

04.10.2013 i.e., for a period of twenty five days. The

injuries sustained and treatment taken by the claimant is

also supported by the oral evidence of the claimant and

the Doctors, who were examined as PWs.1, 2 and 3,

respectively. The Doctor, P.W.3 Dr.Mallikarjun,

Orthopedic Surgeon, Government Hospital, Kanakapura,

has assessed the disability of the claimant at 70% and the

Tribunal has opined that the amputation is a direct

consequence of the injury sustained by claimant in the

road traffic accident. Contrary to this view, the

respondent/insurer has not placed any other material.

10. In this case, the Tribunal has observed that the

claimant sustained in all nine injuries, viz., injury Nos.1,2,

5,6,7 and 8 are simple in nature and injury Nos.3,4 and 9

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are grievous in nature. For one grievous injury, as per

settled law, the claimant is entitled for an amount of

Rs.40,000/- and for additional fractures, he is entitled for

Rs.10,000/- each and towards simple injuries he is entitled

for an amount of Rs.5,000/- each. However, considering

the injuries sustained by the claimant i.e., amputation of

right leg, the claimant is entitled for Rs.1,00,000/- under

the head 'Pain and sufferings' in view of the ratio laid

down in the case of MOHD. SABEER @ SHABIR

HUSSAIN V/S. REGIONAL MANAGER, U.P. STATE

ROAD TRANSPORT CORPORATION reported in

AIR 2023 SC 186.

11. Towards 'loss of future income' is considered, the

Tribunal awarded a sum of Rs.84,500/- considering the

Notional income of Rs.4,000/- per month. The accident is

of the year 2013 and as per the circular issued by the

Karnataka State Legal Services Authority and the High

Court Legal Services committee, Bengaluru, the Notional

income in the absence of any proof of the income of

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claimant to be taken at Rs.8,000/- per month. The

Doctor, P.W.3 has assessed the permanent physical

disability of right leg (amputation) at 70% as per the

Gazette of India, 2018 Notification, however, the Tribunal

considering the provisions of Workmen Compensation Act

considered disability at 60%. The disability considered by

Tribunal is reasonable one. If the Notional income of

Rs.8000/- is calculated with 60% disability, it works out to

(Rs.8,000 + 10%=8,800X 60/100 X 11 X 12)= 6,96,960/.

Therefore, a sum of Rs.6,96,960/- is awarded as against

Rs.84,500/- awarded by the Tribunal.

12. The Tribunal awarded Rs.10,000/- towards

'Travelling expenses, Conveyance and attendant charges',

which is not reasonable amount. Therefore, additional

amount of Rs. 20,000/- is granted under this head

considering the nature of injuries sustained by the

claimant.

13. The Tribunal awarded a sum of Rs.85,000/-

towards 'medical expenses', which is not reasonable

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NC: 2024:KHC:15135

amount as claimant undergone surgical operation and his

right leg has been amputated and hence, an additional

amount of Rs.15,000/- is granted, in all Rs.1,00,000/- is

granted under this head.

14. The Tribunal has not awarded any

compensation under the head 'loss of amenities'.

Considering the nature of the injuries and amputation

sustained by the claimant, a sum of Rs. 50,000/- is

awarded under this head.

15. The Tribunal has not awarded any compensation

under the head 'loss of disability / disfigurement',

therefore, a sum of Rs.50,000/- is awarded under this

head.

16. The Tribunal has not awarded any compensation

under the head 'loss of income during laid up period'. A

sum of Rs.24,000/- is granted under this head

considering the Notional income at Rs.8,000/- for a period

of three months (Rs.8,000 x 3).

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17. Thus, the claimant is entitled for the following

compensation:

                  HEADS                           Rs.
 Pain and sufferings                           1,00,000.00

Travelling expenses, Conveyance and 30,000.00 attendant charges Medical expenses 1,00,000.00 Loss of income during laid up period 24,000.00 Loss of future income 6,96,960.00 Loss of disability / disfigurement 50,000.00 Loss of Amenities 50,000.00

TOTAL 10,50,960.00 Less: Compensation awarded by the 2,19,500.00 Tribunal BALANCE 8,31,460.00

18. Accordingly, the appeal is allowed-in-part. The

judgment and award passed by the Tribunal is modified to

the extent stated herein above. The claimant is entitled for

a total compensation of Rs. 10,50,960/- as against

Rs. 2,19,500/- awarded by the Tribunal with interest at

6% per annum on the additional compensation of Rs.

8,31,460/- from the date of filing of the claim petition till

the date of its realisation.

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19. Respondent No.2/Insurance Company is directed