Karnataka High Court
Sri. Dilip @ Dilip Kumar vs Sri.Pv.Srinivas Murthy on 5 January, 2024
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NC: 2024:KHC:700
MFA No. 1518 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 1518 OF 2018 (MV-I)
BETWEEN:
SRI. DILIP @ DILIP KUMAR
S/O. SRI. PRAKASH, OCC: DIRVER
AGED ABOUT 33 YEARS
R/AT 58, CHINAKERA
HUMNABAD TALUK,
BIDAR DIST 585 353 ...APPELLANT
(BY SRI. SURESH M LATUR., ADV.)
AND:
1. SRI.P. V.SRINIVAS MURTHY
S/O. LATE. P M VENKATAPPA
R/O. 3, KV LANE, COTTONPET
BENGALRU 560 053
2. THE REGIONAL MANAGER
THE ORIENTAL INSURANCE CO LTD,
4TH FLOOR, 44/45, LEO SHOPPING COMPLEX
RESIDENCY ROAD CROSS, BENGALURU 560 025
Digitally signed by MALA K
N
...RESPONDENTS
Location: HIGH COURT OF
KARNATAKA (BY SMT.HARINI SHIVANANDA, ADV. FOR R2;
VIDE ORDER DATED 03.11.2023
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 07.11.2017
PASSED IN MVC NO.8106/2016 ON THE FILE OF THE 21ST
ACMM, 23RD ADDITIONAL SMALL CAUSE JUDGE, BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:700
MFA No. 1518 of 2018
JUDGMENT
In this appeal, the petitioner has challenged the
judgment and award dated 07.11.2017 in
M.V.C.No.8106/2016 passed by the XXI ACMM &
XXIII Addl. Small Causes Judge, M.A.C.T., Bengaluru
('the Tribunal' for short).
2. For the sake of convenience, the parties
shall be referred to as per their status before the
Tribunal.
3. Brief facts of the case are, on 12.09.2016 at
about 8.45 a.m., while the petitioner was riding
motor cycle bearing Reg.No.KA-41/EF-9704 on NH.4
from Madanaikanahalli to Bangalore near TCI,
Dasanapura Hobli, lorry bearing Reg.No.KA-51/4548
came and hit from the opposite direction injuring
him. After taking treatment, the petitioner has
approached the Tribunal for grant of compensation.
Claim was opposed by the owner and the Insurance
Company of the lorry. The Tribunal after taking the
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evidence, by impugned judgment awarded
compensation of Rs.3,26,700/- with 8% interest p.a.
Pleading inadequacy and seeking enhancement, the
petitioner has filed this appeal on various grounds.
4. Heard the arguments of Sri. Suresh M Latur,
learned counsel for the petitioner and
Smt.Harini Shivananda, learned counsel for the
Insurance Company.
5. It is the contention of learned counsel for the
petitioner that the petitioner has suffered fracture of
Fibula with crush injury of knee. He underwent
wound debridement and skin grafting and he was
under hospitalization twice for a period of 46 days.
He was 32 years old and was a driver by avocation.
The Tribunal has not assessed the disability with
reference to the avocation and taken only at 10%,
the income assessed is on the lower side and he
sought for enhancement.
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6. Per contra, learned counsel for the Insurance
Company has contended that the petitioner though
has suffered fracture, after treatment it was
reunited, mere production of driving licence is not a
ground to claim that he is a driver. Unless he places
the evidence in proof of his avocation as well as the
income, the Tribunal with reference to the medical
evidence and the avocation of the petitioner has
correctly taken the income, also assessed the
disability, awarded proper compensation and she
supported the impugned judgment.
7. I have given my anxious consideration to the
arguments addressed on behalf of both sides and
also perused the materials on record.
8. There is no dispute as to the accident, cause
of the accident and that the petitioner has suffered
crush injury to his left leg and fracture of left Fibula.
He was treated at Premier Sanjeevini Hospital,
T.Dasarahalli, Bangalore. PW-3/Dr.Smitha S.Segu,
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Assistant Professor in Victoria Hospital, who is the
Plastic Surgeon, has assessed the disability. Having
regard to the wound debridement and skin grafting
assessed 45% of limb disability. The petitioner was
under hospitalization for 11 days in Premier
Sanjeevini Hospital between 12.9.2016 and
22.09.2016 and 35 days in Victoria Hospital between
23.09.2016 and 27.10.2016, in all 46 days. The
Tribunal has taken the income at Rs.8,000/- and
assessed the disability at 10%. As seen from the
cross-examination of PW-3, the avocation of the
petitioner was not known to her. The petitioner has
relied on Ex.P11/driving licence to show that he
holds a valid driving licence for light motor vehicle.
But on perusal of the evidence and material on
record, nothing is forthcoming, viz., the fact that
where he is working, what kind of vehicle he drives,
his employment details, the proof of income. Case
sheet is also silent as to his avocation. The hospital
records has no reference about his avocation. The
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accident is of the year 2016. A person with no proof
of income will earn not less than Rs.9,500/-. Under
the circumstances, in the absence of proof of
avocation and income, the petitioner has to be
treated as a person with no proof of income and
hence, notional income has to be taken at
Rs.9,500/- per month.
9. As regards disability is concerned, PW-3
though assessed the limb disability at 45%, having
regard to the crush injury and also fracture, it is
proper to accept the limb disability and thereby, the
whole body disability can be taken at 15% instead of
10%. Accordingly, the compensation has to be
assessed towards loss of future income.
10. The Tribunal has awarded compensation
under following heads:
Particulars Amount
1. Pain and Sufferings Rs. 40,000/-
2. Medical Expenses Rs. 77,070/-
3. Attendant charges & Rs. 20,000/-
Nutritious expenses
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4. Loss of future income Rs. 1,53,600/-
5. Loss of Income during Rs. 16,000/-
laid up period
6. Loss of future amenities Rs. 20,000/-
Total Rs. 3,26,670/-
[rounded off to
Rs.3,26,700/-]
11. The petitioner underwent wound
debridement with skin grafting, it explains the
complicity of the nature of injury. Hence, towards
pain and suffering, a sum of Rs.60,000/- has to be
assessed. The petitioner spent Rs.77,070/- towards
medical expenses, which the Tribunal has considered
and the same is kept intact. Having regard to the
seriousness of the fracture and 46 days of
hospitalization, the petitioner was laid up for
minimum of six months. Hence, loss of income
during laid up for six months will be Rs.57,000/- (6
months x Rs.9,500/-). The petitioner's income is
assessed at Rs.9,500/- and disability at 15% and for
his age of 32 years, the applicable multiplier is '16'.
Then the loss of future income will be Rs.9,500/- +
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Rs.3,800/- (40%) = Rs.13,300/- x 12 x 16 x 15% =
Rs.3,83,040/-. Towards loss of amenities and
discomfort, a sum of Rs.60,000/- is assessed. For
46 days of hospitalization, attendant charges at
Rs.15,000/-; towards food and nourishment
Rs.10,000/-; travelling expenses Rs.5,000/- is
assessed. The petitioner requires future treatment
as opined by the doctor/PW-3 and therefore, it shall
be Rs.10,000/-, thereby the petitioner is entitled to
total compensation of Rs.6,77,110/- as against
Rs.3,26,700/- assessed by the Tribunal, thereby
enhancement of Rs.3,50,410/- rounded off to
Rs.3,50,000/-, which is the just compensation that
the petitioner is entitled to, in the facts and
circumstances of the case.
12. Adverting to the rate of interest is
concerned, since the Insurance Company has not
filed any appeal, it is not proper to meddle with the
discretion of the Tribunal. Insofar as enhanced
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compensation is concerned, the petitioner is entitled
to the rate of interest at 6% p.a. Hence, the appeal
merits consideration, in the result, the following:
ORDER
i) Appeal is allowed-in-part.
ii) Impugned judgment and award is
modified.
iii) Petitioner is entitled to enhanced
compensation of Rs.3,50,000/- with
interest of 6% p.a. excluding interest
for future medical expenses.
iv) The Insurance Company is directed to
deposit the compensation within eight
weeks from the date of receipt of
certified copy of the judgment.
v) Amount in deposit, if any, shall be
transmitted to the Tribunal along with
records forthwith.
SD/-
JUDGE
KNM
