Karnataka High Court
V Kiran vs Srikanth M on 1 August, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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MFA No. 8222 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 8222 OF 2023 (MV-I)
BETWEEN:
V KIRAN
S/O K S VASUDEVAMURTHY,
AGED ABOUT 38 YEARS,
R/AT NO.70,
EWS 28TH MAIN, 2ND STAGE,
J P NAGARA,
MYSURU - 570 031.
...APPELLANT
(BY SRI. K. SHANTHARAJ., ADVOCATE)
AND:
1. SRIKANTH M
S/O MAHALINGU M,
AGED ABOUT 42 YEARS,
R/AT NO.2221, 4TH CROSS,
BASAVESHWARA ROAD,
Digitally signed
by ANJALI M K. R. MOHALLA,
Location: High MYSURU - 570 004.
Court of 2. THE MANAGER,
Karnataka
ICICI LOMBARD GEN. INS.CO.LTD.,
1STFLOOR, MITHRY ARCADE,
NEW KANTHARAJA URS ROAD,
NEAR SARASWATHI THEATER,
MYSURU - 570 009.
...RESPONDENTS
(BY SRI. B.C. SHIVANNEGOWDA., ADVOCATE FOR R2;
R1 - SERVICE OF NOTICE IS DISPENSED WITH VIDE ORDER
DATED 31.07.2024)
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MFA No. 8222 of 2023
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 25.08.2022 PASSED IN MVC
NO. 451/2020 ON THE FILE OF THE PRINCIPAL JUDGE, COURT
OF SMALL CAUSES, AS A PRESIDING OFFICER, MOTOR
ACCIDENTS CLAIMS TRIBUNAL, MYSURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR
ORAL JUDGMENT
This appeal is preferred by the appellant-claimant
challenging the judgment and award dated 25.08.2022
passed in MVC.No.451/2020 on the file of the Principal
Judge, Court of Small Causes and Motor Accidents Claims
Tribunal at Mysuru (for short 'the Tribunal'). This appeal is
founded on the premise of inadequate and meager
compensation awarded by the tribunal.
2. Parties to the appeal shall be referred to as per
their status before the Tribunal.
3. The Tribunal has awarded total compensation of
Rs.9,74,500/- with interest at 6% per annum and directed
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respondent No.2 - Insurance Company to pay the
compensation.
4. It is the vehement contention of learned counsel
for the appellant that the Tribunal has committed an error
in not assessing the disability sustained by the claimant in
his entirety and has awarded inadequate compensation.
The Tribunal has though awarded compensation under
other heads with regard to loss of future earning capacity,
the disability is not taken in the proper perspective,
ignoring Ex.P12, the opinion expressed by the Doctor, and
the report so furnished. According to the learned counsel
for the claimant, the Doctor - PW.2 has opined a mild
disability to an extent of 40%, whereas the mild
intellectual disability of IQ is shown as 50% disability,
whereas the Tribunal has deducted 1/3rd and arrived at
12% disability, which is erroneous, and the same is
required to be enhanced exponentially. With regard to
other heads, nothing much is questioned. Under the
circumstances, he contends that the disability portion will
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have to be enhanced, and consequently, future prospects
will have to be awarded to the claimant. On these
grounds, he seeks to allow the appeal and enhance the
compensation.
5. Per contra, learned counsel representing
Insurance Company vehemently contends that the
judgment and award passed by the Tribunal is just and
reasonable. He sustains the same and contends that the
Tribunal has taken into consideration the evidence
adduced by the Doctor - PW.2 and also Ex.P12, which is a
report furnished by the Doctor, and has rightfully arrived
at the functional disability of 12%, which does not call for
interference. He also contends that on all other heads,
just and reasonable compensation has been awarded,
leading to no interference in the hands of this Court.
6. Sri. B.C.Shivanne Gowda, learned counsel for
the Insurance Company, further contends that it is a case
on hand, where there is a mild IQ disability, a mental
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disability and there is no physical disability. The Court will
have to be very circumspect in dealing with the said
matter in accordance with the evidence placed on record.
The Tribunal having considered these aspects has
rightfully decided the matter by taking disability at 12%,
which does not call for interference. Therefore, he seeks
dismissal of the appeal.
7. Having heard learned counsel for both parties,
the occurrence of the accident, involvement of the vehicle
and injuries sustained by the claimant, having been
established and proved by production of Exs.P1 to P14. It
is also not disputed that the claimant has suffered brain
injury leading to IQ disability and mild disability to an
extent of 40%. The recommendation and impression of
the Doctor also clearly states that there is a
neuro-cognitive rehabilitation requirement and
psychoeducation for family regarding the patient's
cognitive ability, mild intellectual disability IQ of 50%
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disability, socio-adaptive disability of 50%, mild level of
disability at 40%, in all, mild disability is assessed at 40%.
8. In the case on hand, where there is a brain
injury and the accident leading to the brain injury leading
to cognitive disabilities, added with intellectual disability
and socio-adaptive disability and neuro-cognitive
rehabilitation recommended. It is the opinion of the
Doctor that will have to be taken into consideration, the
Tribunal, which has absolutely no expertise in the field of
medicine, more so super-speciality or expertise of neuro-
psychological disorders and cognitive disorders cannot
change its opinion by dividing into 1/3rd, as it is a physical
disability. This Court time and again has held on several
judgments that the disability of the neuro psychological
disability cannot be equated with physical disability.
Whatever is opined by the Doctor will have to be taken on
face value unless the Insurance Company obtains the
second opinion or opinion from the Board of medical
Doctors to counter the opinion expressed by the treating
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Doctor who has been examined on his own and who has
provided the report.
9. In the present case, according to the Doctor -
PW.2, there is a 40% mild disability. The Tribunal has
taken disability at 12%. I am in agreement with the
learned counsel for the claimant that the disability has to
be assessed at 40%. I am not inclined to interfere with all
other aspects of income, multiplier and on all other heads,
as the same is just and reasonable.
10. Under the circumstances, in view of the
disability of 40% taken by this Court, the claimant would
be entitled to future prospects. Age of the claimant being
35 years, he would be entitled to future prospects of 40%
in addition to the income. Income is taken as Rs.14,000/-
p.m, the same is retained. Therefore, the loss of future
earning capacity due to disability would be
Rs.15,05,280/- (Rs.14,000 + 40% = Rs.19,600 x 12 x
16 x 40%) as against Rs.4,51,500/-.
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11. The compensation awarded by the Tribunal
under other heads is just and proper and the same does
not call for interference.
12. In view of the above, the claimant would be
entitled to total compensation of Rs.20,28,280/- as
against Rs.9,74,500/- awarded by the Tribunal, as
mentioned in the table below:
Sl. Head of compensation Amount of
No. compensation
awarded
1 Loss of future income due to 15,05,280-00
disability
2 Pain and suffering 65,000-00
3 Loss of amenities 55,000-00
4 Food, Nourishment, 40,000-00
conveyance and attendant
charges
5 Loss of income during laid up 84,000-00
period
6 Medical expenses 2,79,000-00
TOTAL 20,28,280-00
13. Accordingly, I pass the following:
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ORDER
i) The appeal is allowed.
ii) The impugned Judgment & Award dated
25.08.2022 passed by the Principal Judge,
Court of Small Causes and MACT, Mysuru in
MVC No.451/2020, is modified.
iii) The appellant/claimant would be entitled to
total compensation of Rs.20,28,280/- as
against Rs.9,74,500/- awarded by the
Tribunal.
iv) The enhanced compensation amount shall be
paid with interest at 6% per annum by the
respondent - Insurance Company within a
period of four weeks from the date of receipt
of copy of this judgment.
[
v) Balance compensation amount shall be paid
before the Jurisdictional Tribunal within a
period of four weeks from the date of receipt
of copy of this judgment.
vi) The compensation amount shall be released in
favour of the appellant-claimant as per the
terms of the Tribunal by electronic transfer to
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the claimant upon furnishing the required
bank details/upon proper identification.
vii) All other terms and conditions stipulated by
the Tribunal shall stand intact.
viii) The claimant shall not be entitled to interest
for the delay period of 330 days.
Sd/-
(PRADEEP SINGH YERUR)
JUDGE
AM
