Karnataka High Court
Sri. Muniyappa G vs Sri. Chandran C on 19 February, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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MFA No. 7142 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO.7142 OF 2017(MV-I)
BETWEEN:
SRI. MUNIYAPPA G.,
S/O. SRI. GANGALAPPA,
AGED ABOUT 35 YEARS,
OCCUPATION : MASON,
R/AT NO.22, VEMAGAL "B" BLOCK,
KOLAR DISTRICT-563 135.
...APPELLANT
(BY SRI. SURESH M. LATUR, ADVOCATE (VC))
AND:
1. SRI. CHANDRAN C.,
R/AT NO.34, 3RD MAIN ROAD,
AMBATTUR ESTATE,
Digitally signed by
AASEEFA PARVEEN CHENNAI-600 058.
Location: HIGH
COURT OF
KARNATAKA 2. THE MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
NO.28/5, SENTONARY BLAG,
EAST WING, M.G.ROAD,
BENGALURU-560 001
...RESPONDENTS
(BY SRI. D. VIJAYAKUMAR, ADVOCATE FOR R2 (VC);
V/O. DATED 15.11.2018, NOTICE TO R1 IS DISPENSED WITH)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 13.07.2017 PASSED IN
MVC NO. 5514/2016 ON THE FILE OF THE III ADDL. SENIOR
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MFA No. 7142 of 2017
CIVIL JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES,
BENGALURU. PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION,
THIS DAY, DR.H.B.PRABHAKARA SASTRY J., DELIVERED
THE FOLLOWING:
JUDGMENT
The present appeal is filed by the claimant under
Section 173 (1) of the Motor Vehicles Act, 1988, seeking
enhancement of compensation awarded by the Court of
III Additional Senior Civil Judge and Motor Accident Claims
Tribunal, Bengaluru, (hereinafter for brevity referred to as
"the Tribunal"), in its judgment and award dated 13-07-
2017, in M.V.C.No.5514/2016.
2. The summary of the case of the claimant in the
Tribunal was that on 05.07.2016 at about 1.30 p.m. while
he was riding his motor cycle bearing Registration No.KA.03
ER.4838 and going towards Vijayapura and while he was near
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J.Venkatapura Village, a Canter Motor vehicle bearing
Registration No.TN-18 V-6332 being driven by its driver in
a rash and negligent manner came and dashed to his
motorcycle. Due to the said road traffic accident he
sustained multiple grievous injuries. He was shifted to
Victoria Hospital, Bengaluru, where he was treated as
inpatient for a day and later he was shifted to R.L.Jalappa
Hospital, Kolar, where he was treated as an inpatient and
underwent a surgical operation. The claimant further
contend that due to the grievous injuries sustained by him
in the road traffic accident he could not pursue his
avocation as a Mason which he was pursing earlier and
earning a sum of `25,000/- per month. As such, he has
lost his future income and also suffered a lot due to the
injuries suffered by him in the accident. With this, holding,
the respondents No.1 and 2 as the owner and insurer of
the alleged offending Canter vehicle bearing Registration
No.TN.18 V.6332, the claimant has claimed a
compensation of a total sum of `20,00,000/- from them
jointly and severally.
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3. In response to the notice, the respondent No.1
remained absent. It is only the respondent No.2 -
Insurance Company appearing through its counsel filed his
written statement, wherein he denied the manner of
occurrence of road traffic accident as contended by the
claimant in his claim petition. He denied that the claimant
has sustained multiple grievous injuries in the alleged road
traffic accident. He further denied the age, income and
occupation of the claimant. With this he prayed to dismiss
the claim petition.
4. Before the Tribunal, the claimant got himself
examined as PW-1 and got marked documents from
Exs.P-1 to P-10 and also examined the clerk of R.L.
Jalappa Hospital, Kolar as PW.1 and examined
Dr.Ramachandra as PW.3 and got marked the documents
as Exs.P.11 to P15. However, on behalf of the respondent
No.2, no oral evidence is adduced, but the copy of policy is
marked as Ex.R1.
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5. After analysing the evidence and the materials
placed before it, the Tribunal has awarded the
compensation under the following heads with the sum
shown against them:
Sl. Amount in `
Particulars
No.
1 Towards pain and suffering 70,000
2 Towards loss of amenities 25,000
3 Towards Nourishment, conveyance 12,000
and attendant charges
4 Towards medical expenses 44,000
5 Towards loss of future income 2,76,000
6 Towards loss of income during laid 30,000
up period and rest period
7 Towards future medical expenses 30,000
Total 4,87,000
6. The Tribunal has awarded a compensation of a
sum of `4,87,000/- with interest at the rate of 9% per
annum from the date of the claim petition till the date of
deposit, holding that the respondent No.2 - Insurance
Company being the insurer of the alleged vehicle is liable
to pay the compensation. It is against the said judgment
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and award passed by the Tribunal, the claimant has filed
this appeal, seeking enhancement of compensation.
7. Though this matter is listed for admission, with
consent from both side, it is taken up for final disposal.
8. The learned counsel for the appellant in his
brief argument submitted that even though PW3- the
Doctor has assessed the percentage of disability at
24.65% to the whole body, the Tribunal has taken the
same at 16% to the whole body, which is on the lower
side. He further contended that the notional income of the
claimant is also taken on the lower side, stating that the
Tribunal has failed to award any compensation towards
loss of amenities. Learned counsel for the appellant prayed
to allow the appeal as prayed for.
9. Per contra, learned counsel for the respondent No.2-
Insurance company in his brief argument submitted that,
admittedly PW3 is not a treating Doctor, still he has
assessed the percentage of disability at 49.3% to the right
lower limb. The Tribunal has rightly taken 1/3rd of the
same as the percentage of disability applicable to the
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whole body. As such, the percentage of disability taken by
the Tribunal being appropriate, does not warrant any
interference to modify the same. However, he fairly
considered that the notional income prevailing for the
relevant year 2016 being `9,500/- at the maximum, the
claimant is entitled for the difference in the quantum of
the notional income taken up by the Tribunal and for
nothing else. He also highlighted that the Tribunal has
awarded the compensation even under the head loss of
amenities at `25,000/-.
10. The occurrence of road traffic accident on the
date, time and place alleged in the claim petition is not
disputed in this appeal by the other side. Still, the
evidence of PW1 the injured coupled with Exs.P1 to P6
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which interalia includes copy of the FIR with complaint,
copy of scene of offence, Panchanama, copy of rough
sketch of the spot, copy of IMV report, copy of wound
certificate and the charge sheet would go to show that, the
road traffic accident involving the motorcycle bearing
Registration No.KA.03 ER.4838 and Canter vehicle bearing
Registration No.TN.18 V.6332 has occurred on the date,
time and place as alleged in the claim petition.
11. As could be seen in the copy of the charge
sheet Ex.P6, the driver of the Canter vehicle has been
alleged the offence punishable under Sections 338, 279
and 337 of the Indian Penal Code. Further, the copy of
the wound certificate at Ex.P5 also go to show that the
claimant has sustained multiple injuries in the said road
traffic accident. As such, the occurrence of the road traffic
accident on the date, time and place and in the manner as
alleged by the claimant and that the claimant sustained
multiple injuries in the said road traffic accident stands
established. Consequently, the respondents No.1 and 2
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being the owner and insurer of the offending Canter Motor
Vehicle bearing Registration No.TN.18 V.6332 are jointly
and severally liable to pay the compensation to the
claimant. Thus, the only question that remains for
consideration would be the quantification of the
compensation for the injuries sustained by the claimant.
12. PW1 the claimant in his evidence has stated
that in the accident he sustained multiple grievous injuries
including fracture of neck to right femur, fracture of neck
of 5th Metacarpal of right hand, fracture of right patella
and other minor injuries.
PW2 is the clerk at R.L.Jalappa Hospital and Research
Centre. In his evidence he has produced the case sheet of
the injured claimant who is said to have been treated in
his hospital. Same is marked at Ex.P12.
PW3 Dr.S.Ramachandra, Assistant Professor of
Orthopaedic Surgeon at Bengaluru Medical College and
Research Centre also has given his evidence about he
examining the injured claimant. The documentary
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evidence at Ex.P12, the case sheet, the wound certificate
Ex.P5 coupled with evidence of PW3 the doctor would go
to show that in the road traffic accident the claimant
sustained three grievous injuries which are fracture of
neck of right femur, fracture of right patella, fracture of
neck of 5th Metacarpal of right hand and two abrasions.
13. The case sheet at Ex.P12 also go to show that
he was treated as inpatient at R.L.Jalappa hospital for 11
days. According to PW1 he was treated for a day in
Victoria Hospital, Bengaluru also. Thus, for multiple
fracture injuries the claimant must have suffered severe
pain and suffering. Since it is considering the gravity of
the injuries and the pain suffered by the claimant in the
injuries, the Tribunal has awarded compensation of a sum
of `70,000/- towards pain and suffering. The same being
reasonable, we do not want to modify the same.
14. Towards loss of amenities, the Tribunal has
awarded a compensation of a sum of `25,000/-. The
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injuries suffered by the claimant has affected his right limb
and the claimant claims to have working as a Mason at the
time of accident. As such, the loss of amenities which he
suffers would be considerable. Under such circumstance,
the quantum of compensation awarded at `25,000/-
requires a slight enhancement in the form of modification.
Thus, we award an additional sum of `15,000/- to the said
sum making a total quantum of the compensation towards
loss of amenities to `40,000/-
15. It is after assessing the duration of the
hospitalization of the injured and bed rest and the
necessity of attendance to attend to him, the Tribunal
since has awarded a compensation of a sum of `12,000/-
towards nourishment, conveyance and attendant charges.
The same warrant no interference by us.
16. The quantum of `44,000/- awarded towards
medical expenses by the Tribunal is only after considering
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the medical bills and receipts and other medical records
produced by the claimant at Exs.P8, P9 and P12. Since,
the expenses actually incurred by him has been considered
by the Tribunal and awarded `44,000/- towards medical
expenses, which is an actual, the same warrants no
modification by us.
17. Towards loss of income during laid up period
and rest period, the Tribunal while considering a sum of
`30,000/-, has considered the length of treatment taken
up by the injured in the hospital and his avocation and
also the laid up period. It is after considering the
necessary ingredients since the Tribunal has awarded a
reasonable amount of `30,000/-, we do not want to
interfere in the same.
18. It is based upon the evidence of PW1 the
injured as well PW3 the Doctor, the Tribunal has assessed
the future medical expenses which may have to be
incurred by the claimant and has awarded a sum of
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`30,000/-. However, after seeing the evidence of PW3 the
Doctor who has suggested that the claimant has to
undergo one more surgery for removal of implantation and
the nature of the implantation, we are of the view that the
compensation awarded towards future medical expenses
be enhanced by another sum of `10,000/-. Thus, making
in total to a sum of `40,000/-.
19. The claimant has stated that at the time of
accident he was working as a Mason and earning a sum of
`25,000/- per month. However, due to the injuries
sustained by him in the accident, he has become
permanently disabled to pursue his avocation. He has also
produced two case sheets at Ex.P12 and 13 in his support,
discharge summary at Ex.P7, outpatient book at Ex.P14,
more importantly he examined PW3 Dr.S.Ramachandra.
As observed above, the said specialist has stated that he
has assessed the disability alleged by the claimant and
after detailed assessment given the reasoned assessment
evidence arriving at a conclusion that to the particular limb
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which was right lower limb, the claimant was suffering
with disability at 49.3% and to the whole body the
percentage of disability was 24.65%. The learned counsel
for the appellant contends that when the medical evidence
shows that the percentage of disability is 24.65% to the
whole body, the Tribunal was not correct in reducing it to
16%.
20. Per contra, the learned counsel for the
respondent-Insurance Company vehemently submitted
that even according to the claimant the percentage of
disability to the whole body was 49.3%. As such rightly
the Tribunal has taken the percentage of disability as
applicable to the whole body to the 1/3rd of it i.e. 16%.
21. A perusal of the evidence of PW3 would go to
show that he has noticed that the claimant was finding
difficulty to stand and bear weight on right leg. He was
always limping while walking and walking with support of
one walking stick. He was unable to sit cross legged and
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squat on the floor. He was also finding difficulty to climb
up and down the stair case and difficulty in walking on
plain surface. The avocation of the claimant is said to be a
Mason. Therefore, considering the nature of avocation and
the alleged disabilities noticed by the Doctor, we are of the
view that the percentage of disability as applicable to the
whole body taken up by the Tribunal at 16% requires to
be enhanced to 20%.
22. Though the claimant contends that his monthly
income was `25,000/- per month, but admittedly except
his self serving oral statement, there is nothing on record
to show his alleged income. As such, the notional income
prevailing for the relevant period is required to be taken.
23. According to the recommendation made by the
State Legal Services Authority and being implemented by
severing of the motor accident claims tribunal in the State,
the notional income for the relevant year 2016 is
`9,500/- per month. Since the Tribunal has taken the
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notional income at `9,000/- per month, the same
requires to be modified and enhanced to `9,500/- per
month. As such, the quantum of compensation towards
loss of future income would be `9,500/- x 12 x 16 x
20/100 = 3,64,800/-.
24. Since the Tribunal has awarded a sum of
`2,76,000/- only under the said head, the claimant is
entitled for a differential amount of `88,800/- as an
enhancement under the said head.
25. Thus, as analysed above, the claimant is entitled
for a modified compensation as tabulated below:
Sl. Amount in
Particulars
No `
1 Towards pain and suffering 70,000
2 Towards loss of amenities 40,000
3 Towards Nourishment, conveyance
12,000
and attendant charges
4 Towards medical expenses 44,000
5 Towards loss of future income 3,64,800
6 Towards loss of income during laid
30,000
up period and rest period
7 Towards future medical expenses 40,000
Total 6,00,800
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26. Barring the above, the claimant is neither
entitled for compensation under any other heads nor the
compensation awarded by the Tribunal under the existing
heads deserves any further modification.
27. Since the quantum of compensation awarded by
the Tribunal at a sum of `4,87,000/- is in short by a sum of
`1,13,800/-, for the said enhancement of a sum of
`1,13,800/- only, the impugned judgment and award
deserves to be interfered with.
Accordingly, we proceed to pass the following :
ORDER
[i] The appeal filed by the claimant stands
allowed in part;
[ii] The impugned judgment and award
passed by the Court of III Additional Senior Civil
Judge and Motor Accident Claims Tribunal,
Bengaluru, dated 13-07-2017, in M.V.C.
No.5514/2016, is hereby modified to the extent
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that the compensation awarded at `4,87,000/-
is enhanced by a sum of `1,13,800/- (Rupees
One Lakh Thirteen Thousand Eight Hundred
only), thus fixing the total compensation at
`6,00,800/- (Rupees Six Lakh and Eight Hundred
only).
[iii] The rest of the order of the Tribunal
with respect to fixing the liability upon the
respondent - Insurance Company to deposit the
awarded amount, the rate of interest, the time
within which the awarded amount is to be
deposited by the Insurance Company shall
remain unaltered;
[iv] Since the enhanced sum not being a
huge amount, the entire enhanced amount of
`1,13,800/- be released in favour of the claimant
after his due identification and in accordance
with law.
Draw the modified award accordingly.
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Registry to transmit a copy of this judgment to the
concerned Tribunal, along with its records, without delay.
Sd/-
JUDGE
Sd/-
JUDGE
AP
