Karnataka High Court
Sundaresha vs Jagadisha N N on 7 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
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MFA No. 5179 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. 5179 OF 2021 (MV-I)
BETWEEN:
SUNDARESHA
S/O SHEKARAIAH,
AGED ABOUT 26 YEARS,
R/AT NANJAPURA VILLAGE,
HALEBEEDU HOBLI, BELUR TALUK.
PRESENTLY R/O AMBEDKAR NAGARA,
2ND CROSS, BEHIND K.P.T.C.L,
HASSAN - 573 201.
...APPELLANT
(BY SMT. KAVITHA H C., ADVOCATE)
AND:
1. JAGADISHA N.N.
S/O NAGAPPA,
NIDUGHATTA VILLAGE,
SAKHARAYAPATTANA HOBLI,
Digitally signed by
VEDAVATHI A K KADUR TALUK, CHIKKAMAGALORE - 570 001.
Location: High
Court of Karnataka
2. THE MANAGER
CHOLA M.S INSURANCE COMPANY LTD.,
UNIT NO.4, 9TH CROSS, (LEVL-06) GOLDEN
HEIGHTS COMPLEX, 59-C CROSS,
INDUSTRIAL SUBRUB, RAJAJINAGARA,
4TH M. BLOCK, BANGALORE - 560 010.
...RESPONDENTS
(BY SRI. B. PRADEEP, ADVOCATE FOR R2;
VIDE ORDER DATED:2/2/22, NOTICE TO R1 IS DISPENSED
WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
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MFA No. 5179 of 2021
AWARD DATED 03.02.2020 PASSED IN MVC NO.40/2019 ON
THE FILE OF THE c/c OF II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, HASSAN, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is posted for orders, with consent of
learned counsel for the parties, the same is taken up for final
hearing and disposed of by this judgment.
2. This appeal is preferred by the claimant against the
judgment and award dated 03.02.2020 passed by the II
Additional District and Sessions Judge and Additional Motor
Accident Claims Tribunal, Hassan, in MVC No.40/2019, seeking
enhancement of compensation.
3. The rank of the parties before the Tribunal is retained
for the sake of convenience.
4. Heard the learned counsels appearing for the parties.
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5. The case of the petitioner is that the petitioner filed
the aforesaid claim petition under Section 166 of the Motor
Vehicles Act, 1988, seeking compensation for the injuries
sustained by him in the road accident that occurred on
20.07.2018. It is contended that on the said date, at about
2.00 p.m., when the petitioner was proceeding on his bike
bearing No.KA 18 X 6315 near bridge in Mayagondanahalli
limits of Halebeedu, the driver of the offending vehicle Ape
Auto bearing No.KA 18 B 9840 came from Halebeedu side in a
rash and negligent manner and dashed to the Motor vehicle of
the petitioner. Due to the accident, the petitioner suffered
grievous injury on the various parts of the body and he was
taken to the Halebeedu Government Hospital and from there,
he was shifted to Hassan Government Hospital. The petitioner
was admitted to different hospitals for about 5 months as
inpatient and spent more than Rs.6.00 lakhs for his treatment.
It is contended that the petitioner is a coolie and is doing
mason work and he is earning Rs.30,000/- per month. Due to
the accident, he is not able to do the work as he was doing
earlier.
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6. The respondent-insurance company appeared and
filed objection denying the averments made in the claim
petition and also denied the accident, age, income and
occupation of the petitioner, and accordingly prayed for
dismissal of the petition.
7. Based upon the pleadings, the Tribunal framed the
following issues:
1) Whether the petitioner proves that on
20.07.2018 at about 2.00 pm., near Bridge,
Halebeedu-Mayagodanahalli Gadi, driver drove
the Auto bearing No. No.KA 18 B 9840 in a rash
and negligent manner and caused accident?
2) Whether the petitioner is entitled for
compensation as sought for?
3) What Order or award?
8. In support of the petitioner's case, the petitioner got
himself examined as P.W.1 and also examined a doctor as
P.W.2 and marked 13 documents as per Exs.P.1 to P.13. On
behalf of the respondent, no evidence was led by the
respondents.
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9. On the basis of the material evidence, both oral and
documentary, and on hearing the submissions of learned
counsels for both sides, the Tribunal awarded the compensation
of Rs.7,35,000/- with interest at 9% per annum from the date
of petition till realization. Being aggrieved by the compensation
awarded by the Tribunal, the petitioner-claimant is before this
Court in this appeal.
10. The learned counsel for the appellant-petitioner has
contended that the Tribunal has committed an error in taking
the meager amount of Rs.9,000/- per month towards the
income of the petitioner and it has to be enhanced. As per the
notional income recognized by the Karnataka State Legal
Services Authority, an income of Rs.12,500/- per month would
be considered for the accident of the year 2018. The
petitioner sustained fracture of both bones leg and he has
suffered the total permanent disability and also there is
functional disability. The Tribunal has not properly assessed
the disability and therefore, higher compensation is to be
awarded. The petitioner is further entitled for future
prospects, which the Tribunal has not awarded. The
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compensation awarded under the various heads is on the lower
side. The learned counsel for the petitioner has further
contended that the petitioner has suffered the permanent
disability of the right upper limb at 15% and the right lower
limb at 37%. But, the Tribunal has taken the disability at 18%
towards the whole body. The petitioner almost lost his right
leg, suffered the total disability of the right leg and therefore,
prayed for allowing the petition by enhancing the
compensation.
11. The learned counsel for the respondent-Insurance
Company has contended that the disability caused to right
lower limb of the petitioner was considered as 13% and to the
right upper limb at 5%, the Tribunal has rightly considered
disability to the whole body at 18%, which is correct. However,
the learned counsel for respondent agreed for the
compensation in respect of enhancement of the income of the
petitioner from Rs.9,000/- per month to Rs.12,500/- per
month. The learned counsel for the respondent-insurance
company however denied to reconsider the compensation
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awarded by the Tribunal under all the other heads.
Accordingly, he prayed for dismissal of the appeal.
12. Having heard the learned counsel appearing for the
parties, perused the records.
13. The date of accident, the age of the petitioner and
occupation and the income of the petitioner are not in dispute.
Now, the question for consideration in this appeal is the income
considered by the Tribunal.
14. As regards the income of the petitioner, the Tribunal
has taken the income of the petitioner at Rs.9,000/- per month,
which is not correct. Even in the Lok Adalat cases, Rs.12,500/-
per month is taken for the accidents of the year 2018. Hence,
I propose to consider Rs.12,500/- per month as the income of
the petitioner.
15. As regards pain and suffering, the Tribunal has
awarded Rs.50,000/-. The petitioner has suffered the
permanent disability towards the right upper limb and the right
lower limb and he was admitted in various hospitals for 5
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months and took treatments. Therefore, the compensation of
Rs.50,000/- towards pain and suffering awarded by the
Tribunal is very meager. Therefore, I propose to enhance it by
Rs.75,000/-.
16. As regards the medical expenses, the Tribunal has
awarded Rs.1,55,000/- under the said head, which need not be
interfered as the said compensation was granted based upon
the medical bills and the other documents.
17. As regards the conveyance charges, the Tribunal has
awarded Rs.60,000/- and the said award is just and
reasonable. This Court is not inclined to interfere with the said
compensation.
18. As regards the attendant charges, the Tribunal has
awarded Rs.30,000/- under the said head. The petitioner in
the pleadings has stated that he was admitted in various
hospitals for months altogether and spent more than Rs.6
lakhs. However, the Tribunal by taking the attendant charges
of Rs.6,000/- per month, has awarded Rs.30,000/- under the
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said head, which is just and reasonable, and hence, the same is
retained.
19. As regards food and nourishment charges, the
Tribunal has awarded Rs.10,000/-. The petitioner took
treatment for months together and for recovery, he requires
additional amount. Therefore, the same is enhanced to
Rs.25,000/-.
20. As regards the loss of income during the laid up
period, the Tribunal has awarded Rs.45,000/- by taking the
income of Rs.9,000/- per month for five months. Therefore, if
the income of Rs.12,500/- per month is calculated, the loss of
income during the laid up period comes to Rs.62,500/-, which,
in my opinion, is right compensation.
21. As regards the future medical expenses, the P.W.2-
Doctor has stated that the petitioner has malunion fracture of
shaft tibia and for which requires the petitioner to undergo a
surgery and he has to spend Rs.30,000/- - Rs.40,000/- for the
same. Therefore, looking to the facts and circumstances of the
case, since the petitioner has suffered the fracture of leg and
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other injuries, I propose to award Rs.40,000/- towards the
future medical expenses.
22. As regards the compensation towards the loss of
amenities, Rs.25,000/- is awarded by the Tribunal. The
petitioner cannot walk alone without any assistance. Even the
Tribunal has awarded Rs.30,000/- for the attendant charges at
the rate of Rs.6,000/- per month. Such being the case, the
petitioner has suffered the loss of amenities and without any
assistance, he cannot walk or move anywhere. Therefore,
Rs.1,00,000/- towards the loss of amenities is to be granted.
Though the learned counsel for respondent-insurance company
submits that the compensation awarded towards the loss of
amenities is on the higher side, but looking to the facts and
circumstances of the case, the award of Rs.1,00,000/- by this
Court is just and proper. Accordingly, Rs.1,00,000/- is granted
towards the loss of amenities.
23. As regards to the future disability, the doctor has
opined that the petitioner has suffered the disability up to 37%
towards the right lower limb and 15% towards the right upper
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limb. The Tribunal has taken the disability of 5% towards right
upper limb and 13% disability to the right leg and in total, it
assessed the disability of 18% to the whole body, for which the
learned counsel for the respondent-insurance company
submitted that the disability taken by the Tribunal is correct.
However, the learned counsel for the petitioner has contended
that by looking to Ex.P.9-photograph and other photographs, it
denotes that there is a crush injury of the right leg. On
considering the photographs, they indicate that the petitioner
cannot walk, squat, stand, climb steps and stand on both legs
and he cannot do the work as he was doing earlier. Therefore,
the disability of 50% to the whole body is to be considered.
24. As regards the compensation towards future
prospects, the petitioner has sustained the fracture of right leg
and crush injury below the knee, and flesh has come out. Totally,
legs are amputated below the knee. The doctors have given
treatment. Therefore, the disability of 18% to the whole body
cannot be considered in this case, where the limbs are required
to be implanted. Therefore, I propose to consider the disability
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towards whole body at 30%, which is reasonable for amputation
of leg below the knee.
25. As regards to the future prospects, as contended by
the learned counsel, the petitioner has sustained injury to the
lower limb, which is nothing but the amputation below the right
knee. The petitioner is a coolie, definitely, he cannot work as he
is unable to walk. There is definitely functional disability in
respect of the petitioner. The learned counsel for the petitioner
also relied upon the judgment of the Honorable Supreme Court
in the case of NATIONAL INSURANCE CO. LTD. VS. PRANAY
SETHI AND OTHERS reported in (2017)16 SCC 680. The
Apex Court, while considering the case, has taken 40% disability
towards the future prospects. Therefore, I propose to consider
40% disability towards future prospects which would be
Rs.5,000/- (Rs.12,500x40%). Therefore, the total compensation
towards loss of future prospects would be
Rs.12,500+5000(40%) = 17,500x12x17x30=Rs.10,71,000/-.
26. In all, the appellant is entitled for a modified
compensation as tabulated below:
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Sl.
Amount in
No Heads of compensation
Rupees
.
1 Pain and sufferings 75,000-00
2 Medical expenses 1,55,000-00
3 Conveyance Charges 60,000-00
4 Attendant charges 30,000-00
5 Food and nourishment charges 25,000-00
6 Loss of income during the laid up 62,500-00
period
(Rs.12,500/- x 5)
7 Loss of amenities 1,00,000-00
8 Future medical expenses 40,000-00
Loss of income on account of disability 10,71,000-00
and future prospects
(Rs.17,500 x 12 x 17 x 30%).
Total 16,18,500-00
27. Accordingly, I proceed to pass the following :
ORDER
(i) The appeal filed by the appellant stands
allowed in part;
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(ii) The impugned judgment and award
dated 03.02.2020 passed by the II Additional District
and Sessions Judge and Additional Motor Accident
Claims Tribunal, Hassan, in MVC No.40/2019, is
hereby modified;
(iii) The appellant would be entitled to a sum
of Rs.16,18,500/- as against Rs.7,35,000/- awarded
by the Tribunal;
(iv) The enhanced compensation shall be paid
by the respondent company with interest at 6% per
annum within a period of 60 days from the date of
the receipt of copy of this order;
(v) Out of the enhanced compensation, the
sum of Rs.5,00,000/- is ordered to be fixed in any
nationalised bank in the name of the appellant-
claimant for a period of five years with permission to
withdraw periodical interest.
(v) The remaining amount shall be released in
favour of the petitioner-appellant, upon proper
verification;
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(vi) Registry is directed to return the trial
Court records to the Tribunal, along with certified
copy of this order passed by this Court forthwith
without any delay;
(vii) Draw award accordingly.
Sd/-
JUDGE
CS
CT:SK
