Karnataka High Court
Vijaya Kanchan vs Peeter Santhosh Rodrigues on 11 January, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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MFA No. 3812 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 3812 OF 2021 (MV-I)
BETWEEN:
VIJAYA KANCHAN,
AGED 53 YEARS,
S/O RAMA THINGALAYA,
MADHYASTHARA THOTA,
PARAMPALLI,
SASTHANA POST - 576 226,
UDUPI DISTRICT.
...APPELLANT
(BY SRI. P.M.NAYAK., ADVOCATE)
AND:
1. PEETER SANTHOSH RODRIGUES,
AGED ABOUT 37 YEARS,
S/O THOMAS RODRIGUES,
Digitally H.NO.3-283 C, BOLLAJE KATIPALLA POST,
signed by B MANGALORE - 574 112.
LAVANYA
Location:
HIGH 2. SHRIRAM GENERAL INSURANCE CO. LTD.,
COURT OF AUTHORIZED OFFICER,
KARNATAKA LEGAL CELL, CLAIM DEPARTMENT,
E-8, EPIP RIICO, INDUSTRIAL AREA,
SITAPURA, JAIPUR,
RAJASTAN - 302 022.
...RESPONDENTS
(BY SRI.B.PRADEEP, ADVOCATE FOR R2;
R1 - SERVICE OF NOTICE DISPENSED WITH)
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MFA No. 3812 of 2021
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 08.06.2020 PASSED IN MVC
NO.681/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
ADDITIONAL MACT, KUNDAPURA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellant-claimant
challenging the judgment and award dated 08.06.2020 passed
in MVC.No.681/2016 by the Senior Civil Judge and Additional
MACT at Kundapurua, Bengaluru (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. Brief facts of the case is as under:
On 12.01.2016 at 8.45 p.m., the claimant was riding his
motor cycle bearing registration No.KA-20-EB-8515 and when
he reached near Ambagilu Junction of Gundmi of Mooduhadu
Village, Udupi, at that time a tanker lorry bearing registration
No.KA-20-A-6285 came from the opposite direction in a rash
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and negligent manner and dashed against the motor cycle of
the claimant. Due to the impact of the accident, the claimant
suffered grievous injuries, He was immediately shifted to KMC
Hospital, Manipal where he took treatment as inpatient from
12.02.2016 to 03.06.2016. It is stated that the claimant
incurred Rs.4,00,000/- towards medical expenses and
additional amount of expenditures towards food, nourishment,
attendant charges and conveyance. It is further stated that the
claimant was hale and healthy prior to the occurrence of the
accident working as a fisherman, he was earning Rs.12,000/-
per month. In view of the injuries sustained in the accident, the
claimant is unable to attend to his work and do any physical
activities due to the permanent disabilities suffered in the
accident. Hence, the claimant filed the claim petition seeking
compensation against the respondent, The owner of the lorry
tanker and the insurance company
3.2 On service of notice, respondent No.1 - owner of the
offending vehicle remained absent. Respondent No.2 -
insurance company filed statement of objection, denied the
claim of the claimants including the age, avocation and income
and the negligence of the offending vehicle. It was also pleaded
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that the accident occurred due to the rash and negligent riding
of the motor cycle by the claimant himself. Consequently,
sought for dismissal of the claim petition.
3.3. On the basis of pleadings, the tribunal framed
relevant issues for consideration.
3.4. In order to substantiate the issues and to establish
the case, the claimant got examined himself as PW.1 and two
Doctors as PW2 and PW3 and the documents i.e., Ex.P1 and
Ex.P179 came to be marked and further documents at Ex.P180
to Ex.P197. On the other hand, respondent No.2 did not lead
any evidence and no documents were produced.
3.5. On the basis of material evidence both oral and
documentary, the tribunal awarded a total compensation of
Rs.13,84,083/- along with interest at 6% per annum by holding
the respondents jointly and severally liable to pay the
compensation and directed respondent No.2 pay the
compensation.
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3.6. Being aggrieved by the meager compensation
amount awarded by the tribunal, the claimant is before this
Court seeking enhancement of compensation.
4. It is the vehement contention of learned counsel for
the appellant - claimant that the tribunal has committed a
serious error in not awarding suitable compensation ignoring
the material evidence both oral and documentary and the
evidence adduced by the Doctors PW2 and PW3 and the opinion
expressed by the experts with regard to the disability to an
extent of 77% to the right upper limb and 46% to the right
lower limb, which amounts to 62% to the whole body. Ignoring
this aspect, the tribunal has assessed the whole body disability
to an extent of 50%. It is further contended that under other
heads also the tribunal has awarded meager compensation
without taking into consideration the magnitude of injuries
suffered by the claimant. Hence, on these grounds, he seeks
for substantial enhancement of compensation.
5. Per contra, learned counsel representing the insurance
company vehemently contends that there is no illegality or
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perversity in the judgment and award passed by the tribunal
which has taken into consideration the material evidence both
oral and documentary and has awarded just and reasonable
compensation under all heads, which does not call for
interference. On these grounds, he seeks dismissal of the
appeal.
6. Having heard learned counsel for both parties and
having perused the impugned judgment and award and on
perusal of the original records, it is not in dispute that the
accident occurred on 12.02.2016 between the two-wheeler
ridden by the claimant and the lorry tanker, the offending
vehicle. It is also not in dispute that due to the impact of the
accident, the claimant suffered serious grievous injuries and
the injuries have been clearly explained by the Doctors - PW2
and PW3. To substantiate and establish this aspect of
negligence and injuries suffered, the claimant has produced
Ex.P1 to Ex.P197, the police records as well as the medical
records. The police records go to show the involvement of the
vehicle, the rashness and negligence on behalf of the driver of
the offending vehicle, which has not been questioned. The
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medical records go to show the magnitude of injuries suffered
by the claimant, so also the opinions expressed by the doctor
by producing the disability certificates and the hospital records.
Therefore, the negligence is rightly attributed against the driver
of the offending vehicle to implicate him and consequently the
insurer to pay the compensation.
7. Now coming to the aspect, age, avocation and
income of the claimant as on the date of occurrence of the
accident, the tribunal has taken the age of the claimant to be
46 years as on the date of occurrence of the accident. The
appropriate multiplier considering the age would be '13', which
is rightly assessed by the tribunal and the same does not call
for interference. However, the tribunal has assessed the income
of the claimant to be Rs.9,000/- per month as notional income,
whereas, the legal services authority chart for the accident in
the year 2016, stipulates Rs.9,500/- per month as income, the
same is taken in the present case. Therefore, the loss of future
earning capacity due to disability would be [9,500 x 12 x 13]
Rs.14,82,000/-. The tribunal has assessed the disability to be
50%, the same is retained and deducting 50%, the loss of
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future earning capacity would be Rs.7,41,000/- as against
Rs.7,02,000/- assessed by the tribunal.
8. The claimant was inpatient for 55 days. The Doctors
- PW2 and PW3 have assessed that there is a disability to an
extent of 77% to the upper limb and 46% to the lower limb.
The claimant was a fisherman by occupation. He is not in a
position to do his avocation as he was able to do prior to
occurrence of the accident. Towards pain and agony, the
tribunal has awarded a sum of Rs.1,30,000/-. I deem it
appropriate to award another Rs.20,000/- under this head.
9. Towards medical expenses, the tribunal has
awarded a compensation of Rs.3,82,083/- on the basis of the
actual bills produced by the claimant, which does not call for
interference.
10. Towards conveyance, diet and attendant charges,
the tribunal has awarded a compensation of Rs.50,000/-. In
view of the claimant's residence being far away from that of
the hospital, another Rs.25,000/- requires to be awarded under
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this head. Accordingly, Rs.75,000/- is awarded under this head
as against Rs.50,000/-.
11. Towards loss of income during laid up period, the
tribunal has awarded a compensation of Rs.45,500/-, which is
on the lower side. In view of this court enhancing the income
to Rs.9,500/- per month and considering the fact that the
claimant has sustained 50% disability to the whole body,
making him incapable for performing any activities of his
avocation, atleast 6 months period would be required to be
taken for recuperation to do any other job. Accordingly, [9,500
x 6] Rs.57,000/- is awarded under this head as against
Rs.45,000/- awarded by the tribunal.
12. Towards loss of amenities, a compensation of
Rs.50,000/- is awarded. I deem it appropriate to award an
additional sum of Rs.25,000/- under this head.
13. Towards future medical expenses the tribunal has
awarded a compensation of Rs.25,000/-. PW2 has issued the
certificate at Ex.P8 to show that Rs.1,00,000/- would be
required for future medical expenses. However, in the cross-
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examination of PW3, he has stated Rs.25,000/- would be
required for future medical expenses. There is a contradiction
between PW2 and PW3. However, considering the magnitude
of injuries suffered and the disability assessed by the Doctors, I
deem it appropriate to award Rs.50,000/- as against
Rs.25,000/- awarded by the tribunal towards future medical
expenses.
14. In view of the above discussions, the claimant
would be entitled to a total compensation of Rs.15,30,083/- as
against Rs.13,84,083/- with interest at 6% per annum as
mentioned in the table below:
Heads Amount in Rs.
Loss of income due to disability 7,41,000-00
Pain and suffering 1,50,000-00
Medical expenses 3,82,083-00
Conveyance, diet and attendant 75,000-00
charges
Loss of income during laid up period 57,000-00
Loss of amenities 75,000-00
Future medical expenses 50,000-00
TOTAL 15,30,083-00
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(l) Accordingly, I pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The judgment and award dated 08.06.2020
passed in MVC.No.681/2016 by the Senior
Civil Judge and Additional MACT at
Kundapura is modified;
iii) The claimant is entitled to a total
compensation of Rs.15,30,083/- as against
Rs.13,84,083/- awarded by the tribunal
along with interest @ 6% p.a. from the date
of petition till realization; . All other terms
and conditions of the tribunal stands intact.
iv) The entire compensation amount shall be
paid by the respondent within a period of six
weeks from the date of receipt of a copy of
this order;
v) Future medical expenses shall not carry any
interest;
vi) The original records shall be transmitted to
the jurisdictional tribunal forthwith.
Sd/-
JUDGE
SS
