Karnataka High Court

Chandrashekar vs Kotresh N on 7 June, 2024

Author: K.Natarajan

Bench: K.Natarajan

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                                                          NC: 2024:KHC:19931
                                                        MFA No. 3979 of 2021




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 7TH DAY OF JUNE, 2024

                                          BEFORE
                           THE HON'BLE MR JUSTICE K.NATARAJAN

                     MISCELLANEOUS FIRST APPEAL NO. 3979 OF 2021 (MV-I)
                BETWEEN:

                       CHANDRASHEKAR
                       S/O BASAVARAJAPPA
                       AGED 47 YEARS,
                       AGRICULTURIST,
                       R/O NEAR GOVERNMENT HOSPITAL
                       UCHANGIDURGA VILLAGE
                       HARAPANAHALLI TALUK
                       DAVANAGERE DISTRICT
                       NOW R/O SHAMANUR VILLAGE
                       DAVANAGERE TQ AND DIST - 577 001


                                                                ...APPELLANT

                (BY SRI. G.J.SUNKAPUR, ADVOCATE)
Digitally
signed by V
KRISHNA         AND:
Location:
High Court of   1.     KOTRESH N
Karnataka              S/O DIWAKAR N
                       AGE 30 YEARS,
                       DRIVER CUM OWNER OF THE CAR
                       BEARING NO. KA-17/P-8935
                       R/O UCHANGIDURGA VILLAGE
                       HARAPANAHALLI TALUK
                       DAVANAGERE DISTRICT - 577 001.

                2.     THE DIVISIONAL MANAGER
                       NATIONAL EGRO GENERAL
                       INSURANCE CO LTD.,
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                                           NC: 2024:KHC:19931
                                         MFA No. 3979 of 2021




    HDFC BUILDING, MG ROAD
    BENGALURU - 560 001
                                              ...RESPONDENTS

(BY SRI.D. VIJAYA KUMAR, ADVOCATE FOR R-2;
R-1 - NOTICE DISPENSED WITH VIDE ORDER DT.11.04.2022)

                             ***

     THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND
AWARD DATED 14.02.2020 PASSED IN MVC NO.752/2018 ON
THE FILE OF THE COURT OF III ADDITIONAL SENIOR CIVIL
JUDGE & VI M.A.C.T. AT DAVANAGERE, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION, THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal is preferred by the claimant under

Section 173 (1) of the Motor Vehicles Act, 1988 (for short

"M.V. Act"), against the judgment and award passed by

the III Additional Senior Civil Judge and VI M.A.C.T., at

Davanagere, (hereinafter for brevity referred to as "the

Tribunal"), dated 14.02.2020 in M.V.C.No.752/2018,

seeking enhancement of compensation.

NC: 2024:KHC:19931

2. Though this appeal is posted for Admission, with

the consent of the learned counsel for the parties, the

same is taken up for final disposal.

3. Heard the arguments of the learned counsel for

the appellant and learned counsel for the second

respondent - Insurer. Notice to first respondent is

dispensed with vide order dated 11.04.2022.

4. The case of the appellant who was the petitioner

in the Tribunal is that, he filed a claim petition under

Section 166 of the M.V. Act, claiming compensation of a

sum of `5,00,000/- on account of the injuries sustained by

him in the road traffic accident that occurred on

17.02.2018 at about 3:00 p.m.

5. It is alleged that on 17.02.2018 at about 3:00

p.m., when the appellant was proceeding in a Car bearing

Registration No.KA-17/P-8935 driven by first respondent,

between Uchangidurga-Harapanahalli Road, the driver of

the said Car drove the vehicle in a rash and negligent

manner with a high speed, due to which, the vehicle

NC: 2024:KHC:19931

toppled and he fell down and sustained injuries.

Immediately, he was taken to the City Central Hospital,

Davanagere, where he underwent a surgery and took

medical treatment as an in-patient from 17.02.2018 to

22.02.2018.

The appellant contended that he incurred expenses

of a sum of `1,00,000/- towards treatment and

nourishment. Prior to the accident, he was doing

agriculture and earning a sum of `15,000/- per month. On

account of the road traffic accident, he has sustained

fracture on his left shoulder, as such, he could not do his

work as earlier due to the accidental injuries. He suffered

permanent physical disability and sustained loss of future

earning capacity.

6. In response to the notice served upon the

respondents, though both the respondents appeared

before the Tribunal through their respective Advocates,

however, it is only the second respondent-Insurer which

filed its Statement of Objections and contended that the

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driver of the offending vehicle was not holding a valid and

effective Driving Licence as at the time of the occurrence

of the accident. It further contended that there is violation

of the terms of the insurance policy, as such, it is not

liable to indemnify the insured and sought to dismiss the

claim petition.

7. Based upon the pleadings of the parties, the

Tribunal framed the following issues for its consideration.

1. Whether the petitioner proves that, on 17.2.2018 at about 3:30 PM when he was proceeding in a Car bearing Reg.No.KA-17/P.8935 driven by 1st respondent, between Uchangidurga- Harapanahalli road, the driver of the vehicle drove the same in a rash and negligent manner and at that time the cattle came across the road as a result the vehicle toppled and as a result he suffered injuries?

2. Whether the petitioner is entitle for the compensation as prayed? If so, at what rate?

3. What Order?

8. To prove his case, the claimant (appellant

herein) got himself examined as PW-1 and also examined

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one witness, Dr. Ramesh Poojar, as PW-2 and got marked

eleven documents from Exs.P-1 to P-11. On behalf of the

respondents, neither any witnesses were examined nor

any documents were got marked.

9. After hearing the arguments and going through

the entire material placed before it, the Tribunal, by

answering issue No.1 in the affirmative, issue No.2 partly

in the affirmative and issue No.3 as per the final order,

allowed the claim petition in part by granting the

compensation under the following heads with the sum

shown against them:

Sl.

                 Heads of compensation                Amount in `
   No.
    1     Loss of future earning capacity              98,280-00
    2     Pain and sufferings                          25,000-00
    3     Loss of amenities                            05,000-00
    4     Medical expenses                             49,457-00
    5     Loss of income during laid up period         09,000-00
          for one month
    6     Nourishment and conveyance                   05,000-00
                           Total                      1,91,737-00


     10. The Tribunal rounded it off and                  awarded

compensation of a sum of `1,91,740/- with interest at the

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rate of `9% per annum from the date of the claim petition

till the date of deposit of the entire amount, holding the

respondents 1 and 2 jointly and severally liable to pay the

compensation, however, directed the second respondent-

Insurer to deposit the compensation amount in the

Tribunal. Being aggrieved by the quantum of

compensation, on the ground that it is inadequate, the

claimant has filed this appeal seeking enhancement of

compensation.

11. Heard the argument of the learned counsel for

the appellant (claimant), who appeared and the argument

of the learned counsel for second respondent-Insurer, who

appeared through video conference. Perused the

materials placed before this Court including the

memorandum of appeal and the impugned judgment and

award passed by the Tribunal.

12. Learned counsel for the appellant seriously

contended that the quantum of compensation awarded by

the Tribunal under all the heads is meagre. He submitted

NC: 2024:KHC:19931

that, on account of the road traffic accident, the appellant

has sustained fracture on his left shoulder and other

injuries, but the Tribunal has awarded only a sum of

`25,000/- towards pain and suffering, which requires

reasonable enhancement. He submits that the

compensation awarded towards loss of amenities and

nourishment and conveyance is also too less and liable to

be enhanced reasonably. Further, he submitted that the

compensation awarded towards loss of future earning

capacity is also on the lower side for the reason that the

Tribunal has assessed the monthly notional income of the

appellant at only a sum of `9,000/-, when in fact, at the

relevant point of time, the MACTs were taking the notional

income at `12,500/- per month. Therefore, he prayed to

re-assess the income and award reasonable compensation

towards loss of future earning capacity. Thus, he sought

to award reasonable compensation under all the heads by

modifying the impugned judgment and award passed by

the Tribunal.

NC: 2024:KHC:19931

13. Per contra, learned counsel for the second

respondent - Insurer, though supported the impugned

judgment and award passed by the Tribunal, however,

fairly submitted that the notional income assessed by the

Tribunal appears to be on the lower side and that

reasonable enhancement may be made by modifying the

impugned judgment and award passed by the Tribunal.

14. After hearing the arguments of the learned

counsel for the parties, the only point that arise for my

consideration is,

Whether the Tribunal erred in computing the loss of future income on account of disability and awarded meager compensation under other heads and hence the appellant is entitled for enhancement of compensation?

15. The Police have filed the charge sheet against

the driver of the offending Car, which is not contested. The

present appeal being the claimant's appeal and the

respondent Insurer having not preferred either cross-

objection or a counter appeal, the question of occurrence

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NC: 2024:KHC:19931

of accident on the date, time and place as alleged by the

claimant and also the alleged rash and negligent driving

on the part of the driver of the offending Car is not in

dispute. Thus, the only question that remains for

consideration is about the quantification of the

compensation, which, according to the claimant/appellant,

is inadequate.

16. It can be seen that the Tribunal has awarded

compensation of a sum of `25,000/- towards pain and

sufferings. Due to the accident, the appellant has

sustained fracture on his left shoulder. Considering the

nature of injuries sustained by the appellant, I am of the

view that, the compensation awarded at `25,000/-

towards pain and sufferings is just and proper and it does

not call for any interference at the hands of this Court.

17. As regards the medical expenses, the Tribunal

has rightly awarded the compensation of a sum of

`49,457/- as per the medical bills and prescriptions

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NC: 2024:KHC:19931

produced by the appellant. Hence, it does not call for

interference at the hands of this Court.

18. As regards the compensation towards loss of

amenities, it is pertinent to note that, the Tribunal has

awarded compensation of a sum of `5,000/-. The same is

on the lower side for the reason that he was aged about

47 years at the time of accident and because of the

injuries sustained in the accident, he is deprived of

comforts in his future life. Hence, I deem it fit and proper

to award a sum of `10,000/- as against `5,000/- awarded

by Tribunal.

19. As regards nourishment expenses and

conveyance charges, the Tribunal has awarded a sum of

`5,000/-. He was in-patient for six days in City Central

Hospital, Davanagere. Thus, considering the nature of

injuries and period of treatment undergone, I am of the

view that the compensation awarded by Tribunal being

just and proper, it does not call for interference at the

hands of this Court.

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NC: 2024:KHC:19931

20. As regards the compensation awarded towards

loss of future earning capacity on account of permanent

disability of the appellant, it can be seen that the

Doctor(PW-2) has stated that the appellant has sustained

fracture of left clavicle bone. PW-2, by clinical and

radiological methods, assessed the functional disability at

23% towards the particular limb. When the said disability

is considered to whole body, it comes to 7%, which is

1/3rd of 23%.

The Tribunal grossly erred in assessing the notional

monthly income of the appellant at only `9,000/-. During

the said period, the MACTs were assessing the notional

income at `12,500/- per month, which is not disputed by

the learned counsel for the Insurance Company.

Accordingly, I propose to assess the notional income of the

appellant at `12,500/- per month as against `9,000/- per

month assessed by the Tribunal.

As per the Wound Certificate at Ex.P-3, the appellant

was aged about 47 years as at the time of the accident.

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NC: 2024:KHC:19931

For the said age, the proper multiplier applicable as per

the decision of the Hon'ble Apex Court in the case of Sarla

Verma and others Vs. Delhi Transport Corporation and

another reported in AIR 2009 SUPREME COURT 3104, is

'13'. Thus, taking the notional monthly income at

`12,500/-, disability at 7% and multiplier of '13', the

compensation towards loss of future income on account of

disability comes to `1,36,500/- (i.e `12,500/-x12 x 7%

x'13'). Accordingly, the same is awarded as against a sum

of `98,280/- awarded by the Tribunal.

21. In so far as the compensation awarded towards

loss of income during laid up period is concerned, it can be

seen that, on account of the fracture of clavicle bone and

other injuries sustained in the road traffic accident, he was

hospitalised for a period of six days from 17.02.2018 to

22.02.2018. He was advised follow-up treatment for four

to five times. Thus, considering the fracture and other

injuries and follow-up treatment, I am of the view that he

must have taken rest and been away from his work at

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NC: 2024:KHC:19931

least for a period of two months. Thus, taking his notional

income at `12,500/- per month, for two months, the

compensation towards loss of income during the laid up

period comes to `25,000/- as against a sum of `9,000/-

awarded by Tribunal.

22. Barring the above, the claimant is not entitled

for compensation under any other heads or for any

modification or enhancement of compensation under any

other existing heads.

Thus, the appellant is entitled for a modified

compensation as tabulated below:

Sl.

             Heads of compensation                     Amount in `
 No.
 1 Loss of future earning capacity                        1,36,500-00
 2 Pain and sufferings                                      25,000-00
 3 Loss of amenities                                        10,000-00
 4 Medical expenses                                         49,457-00
 5 Loss of income during laid up period                     25,000-00
     for two months
 6 Nourishment and conveyance                                 05,000-00
                   Total                                  2,50,957-00

Since the quantum of compensation awarded by the

Tribunal at `1,91,740/- is in short by a sum of `59,217/-,

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for the said enhancement of a sum of `59,217/-, rounded

off to a sum of `59,220/-, the impugned judgment and

award deserves to be interfered with.

Accordingly, I proceed to pass the following :

ORDER

[i] The appeal filed by the appellant

stands allowed in part;

[ii] The impugned judgment and award

passed by the III Additional Senior Civil Judge

and VI M.A.C.T., at Davanagere, dated

14.02.2020 passed in M.V.C.No.752/2018, is

hereby modified to the extent that the

compensation awarded at `1,91,740/- is

enhanced by a sum of `59,220/- (Rupees Fifty

Nine Thousand Two Hundred and Twenty only),

with interest at the rate of 6% per annum on the

enhanced compensation, thus fixing the total

compensation at `2,50,957/- (Rupees Two Lakhs