Karnataka High Court

Sri Raghavendra vs Sri Sannayya on 10 June, 2024

Author: K.Natarajan

Bench: K.Natarajan

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                                                             NC: 2024:KHC:20259
                                                            MFA No. 491 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 10TH DAY OF JUNE, 2024

                                               BEFORE
                                THE HON'BLE MR JUSTICE K.NATARAJAN
                      MISCELLANEOUS FIRST APPEAL NO. 491 OF 2023 (MV-I)

                      BETWEEN:
                            SRI. RAGHAVENDRA
                            S/O SEETHARAMA,
                            AGED ABOUT 38 YEARS,
                            R/AT NANDIKESHWARA KRIPA,
                            MAYYADI ROAD, BYNDOOR,
                            UDUPI DISTRICT.
                                                                   ...APPELLANT
                      (BY SRI. NAGARAJA HEGDE, ADVOCATE)

                      AND:
                      1.    SRI. SANNAYYA
                            S/O M.P. VASUDEVA,
                            AGED ABOUT 43 YEARS,
                            R/O M. P. HOUSE,
Digitally signed by
VEDAVATHI A K               BYNDOOR VILLAGE,
Location: High
Court of
                            MAYYADI POST, BYNDOOR TALUK,
Karnataka                   UDUPI DISTRICT.

                      2.    THE UNITED INDIA INSURANCE CO. LTD.,
                            BRANCH OFFICE,
                            SRI LAXMI VENKATESH COMPLEX,
                            N.H. 66, VADERHOBLI, KUNDAPURA,
                            REPRESENTED BY ITS BRANCH MANAGER.
                                                              ...RESPONDENTS
                      (BY SRI. S.V.HEGDE MULKHAND, ADVOCATE FOR R2;
                          VIDE ORDER DATED:23/01/2023, NOTICE TO R1 IS
                          DISPENSED WITH)
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                                                         NC: 2024:KHC:20259
                                                        MFA No. 491 of 2023




     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED.01.08.2022 PASSED IN MVC NO.569/2019 ON
THE FILE OF THE ADDITIONAL DISTRICT JUDGE AND
ADDITIONAL MACT, UDUPI (SITTING AT KUNDAPURA) PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                                    JUDGMENT

This appeal is filed by the appellant-claimant under

Section 173(1) of the Motor Vehicles Act, 1973 (for short M.V.

Act) challenging the judgment and award passed M.A.C.T.,

Udupi in M.V.C.No.569/2019, dated 01.08.2022 seeking

enhancement of the compensation.

2. Heard the arguments of learned counsel for the

appellant and learned counsel for the respondents.

3. The rank of the parties before the Tribunal is

retained for the sake of convenience.

4. The case of the petitioner is that the petitioner filed

petition under Section 166 of the M.V. Act claiming

compensation of Rs.32,65,000/- for the injury sustained by him

in the road traffic accident. It is alleged that on 17.02.2019 at

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about 11.00 a.m., when he was proceeding on his motorcycle

bearing registration No.KA-05-KH-4271 from Byndoor towards

Kundapura and when he reached Nakatte on NH-66, Yadthare

village, at that time, a Auto Rickshaw bearing registration KA-

20-D-9031 came from Kundapura road towards Byndoor driven

by the driver in a rash and negligent manner and dashed to the

petitioner motor cycle. Due to which, the petitioner fell down on

the road and sustained fracture of right leg femur distal 1/3,

fracture of right tibia bone and right fibula bone, fracture of

right side scathed bone, amputation of right hand middle

finger, laceration over the right leg and immediately, he was

shifted to the Chinmayi Hospital, Kundapur. Due to major

fracture and injuries, he was advised to take treatment at KMC

Hospital, Kundapur where he was admitted as in patient and

provided treatment for more than 38 days. He has suffering

from disability due to injury sustained by the accident. Hence,

he filed the petition.

5. Respondent No.1 remained ex-parte and

respondent No.2 appeared along with the counsel and filed

statement of objection by denying the averments made in the

complaint and also disability and contended that the claim of

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the petitioner was exorbitant and excessive. Hence, prayed for

dismissing the appeal.

6. Based upon the pleadings, the Tribunal framed the

following issues:

"1. Whether the petitioner proves that the accident occurred due to the actionable negligence on the part of driver of Auto Rickshaw bearing registration No.KA-20-D- 9031 and in the said accident, he suffered injuries?

2. Whether the petitioner is entitled for compensation? If so, what is the quantum and from whom?

3. What order or award?"

7. In order to prove the case of the petitioner, the

petitioner himself examined as P.W.1 and got marked 24

documents and also examined Doctor as P.W.2 who issued

disability certificate and on behalf of the respondent, one

document was marked as per Ex.R1-Insurance Police and no

evidence were lead. After hearing the arguments, the Tribunal

allowed the petition in part by awarding compensation of

Rs.15,32,360/- together with 6% interest per annum from the

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date of petition till payment from respondent Nos.1 and 2.

Being aggrieved by the same, the petitioners are before this

Court.

8. The learned counsel for the appellant has

strenuously contended that as per the evidence of P.W.2-

Dr.Dinesh Kumar Shetty, the petitioner is suffering from 100%

functional disability. He cannot do any work as a mason. He is

also a cab driver and totally he was unable to work and he has

sustained multiple fracture injuries from head to foot. Such

being the case, the Tribunal has wrongly assessed the disability

only 27% to the whole body which is not correct. Though 40%

future prospects was considered, but 27% disability for the

whole body is very meager and that has to be enhanced and

also contended the pain and sufferings, loss of amenities were

all the meager compensation awarded by the Tribunal and

hence, prayed for allowing the appeal.

9. Per contra, learned counsel for the respondent

seriously objected the petition by supporting the findings of the

Tribunal and contended that the Tribunal after appreciation of

evidence at paragraph No.14 of its judgment, considered the

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judgment of the Hon'ble Supreme Court in the case of

Rajkumar vs. Ajaykumar reported in 2011 ACJ 1 SC:

(2011) 1 SC 343 and assessed the disability to the extent of

27% to the whole body which is just and proper and no need to

enhance and also with regard to the other heads, it is

contended that the doctor has mentioned the cost of future

medical expenses as around Rs.60,000/-, but the Tribunal has

awarded Rs.75,000/-. The laid up period also considered along

with the future prospects, therefore, there is no need to

enhance any amount. Hence, prayed for dismissing the appeal.

10. Having heard the arguments and on perusal of the

records, the point that may arise for my consideration are:

"(1) Whether the petitioner has made out the case that the he suffered from 100% of functional disability?.

(2) If so, whether the finding and award passed by the Tribunal requires interference?"

11. On perusal of the evidence of P.W.1 , the petitioner

has stated that he has suffered injury in the accident. He has

reiterated the pleadings mentioned in the petition and as per

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his evidence, he has suffered fracture on the right side lower

limb as well as upper limb and some head injury. He also lost

two fingers which was admitted. To collaborate his evidence,

the P.W.2-Dr.Dinesh Kumar Shetty, who was treated him in the

Chinmayi Hospital for the first time and subsequently, the

petitioner shifted to the KMC Hospital, Manipal. One week

treatment was given by the P.W.2 and as per his evidence, he

has found the following infirmities:

"Right lower limb:

1. limp while walking

2. Shorting of 3.5 c.m.

3. Mean right hip movements reduced by 20%

4. Knee movements reduced by 20%

5. Ankle movements reduced by 10%

6. Wasting of 2.5 c.m.

7. Power of quadriceps grade 3

Right upper limb:

1. Rotation of right forearm reduced by 30%

2. Grip strength reduced by 40%

3. Flexion of MCP joint 40%"

12. As per the evidence of the doctor, there is 100%

functional disability of work capacity who involved in the labour

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activities. Based upon his evidence, the Tribunal fixed 27%

disability to the whole body which is under challenge.

13. On perusal of the evidence of the doctor, though

there is no proper cross examination by the learned counsel for

the respondent except denials, he has not eligible to give

evidence and assessing the disability, but nothing elicited

scientifically to disbelieve the evidence of the P.W.2. However,

the petitioner claimed that he is a cab driver as well as a

mason. But there is no document produced to show that he is

working as a mason and he was registered with the labour

department to show that he was working mason. Though some

person given a certificate that he is working as a mason, but

that employer or contractor was not examined before the court

to show that he was working as a mason whether he is a helper

or supervisor whatever may be. Therefore, without any oral

evidence or supporting evidence, the Court cannot come to any

conclusion that he is a mason working as labour in the

construction field and due to this fracture of both limbs, he is

totally unable to work or lift the weight in the construction field.

When the petitioner himself failed to prove that he is a mason

in the construction work, the court cannot consider he is a

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mason and the loss of 100% to the functional disability as

stated by the doctor.

14. As regards to the petitioner claiming as he is a

driver, he has produced the driving license. Merely producing

the driving license itself cannot be considered that he is a

driver. Once a person obtains a license for driving a car and he

can drive the car that itself is not enough to show that he is

working with somebody and earning some salary as a driver.

Therefore, the question of considering the petitioner as a driver

or he is a mason is not acceptable. Therefore, the Tribunal

rightly considered Rs.14,000/- as notional income for the

petitioner and this Court also holds that the petitioner failed to

prove that he is a driver working under some person and

running the cab and also a mason. Therefore, he is treated as

self employed and Rs.14,000/- as notional income. Anyhow the

doctor has stated about the functional disability of the

petitioner and definitely the multiple fracture of both upper and

lower limbs and amputation of two fingers may cause

obstruction and functional disability of the petitioner. Therefore,

the Tribunal has rightly considered 40% towards the future

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prospects of the petitioner as he may not get any good job

either driver or as a mason whatever may be.

15. The doctor has stated about the disability of the

petitioner. Definitely, he has suffered the multiple fractures,

both to the upper limb and lower limb and also amputation of

ribs, which may cause functional disability. The petitioner may

not be able to the job, therefore, 40% towards disability is

appropriate. If the income of Rs.14,000/- per month along with

40% disability is taken, the income of the petitioner would

come to Rs.19,600/- per month. If the said amount of

Rs.19,600/- per month is added for three months, it would be

Rs.58,800/-, this would be the loss of income during the laid up

period.

16. As regards the functional disability, as already stated

above, the doctor has in his opinion has stated that the

petitioner is a labourer and he is running a taxi and has got

100% disability. But the petitioner has failed to prove the

nature of job. Such being the case, taking 100% disability

towards functional disability is said to be a bit harsh. As per

the doctor, the disability to lower limb is considered at 46%

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and upper limb at 32%, totally 78%. Out of 78% limb

disability, 1/3rd of it was considered by the Tribunal, assessed

27% disability to the whole body. The petitioner has sustained

amputation of two fingers. Apart from that, the legs have

been injured. Both legs, femur, hand tibia and fibula, two parts

above and below the knee were fractured. Therefore, the

disability to the whole body should be properly appreciated.

Such being the case, taking 1/3rd towards whole body disability

is not justifiable. Even, if it is considered that the petitioner

has suffered disability of 100% to the limb, 1/3rd of it would be

35%. Therefore, 35% of the disability to the whole body is

taken and the award would be Rs.12,34,800/- (Rs.19,600/-

x12x15x35%). This would be loss of dependency of the

petitioner.

17. As regards pain and suffering, the Tribunal has

awarded Rs.75,000/- to the petitioner. Both the limbs

fractured, there is foot injury and fingers are amputated.

Therefore, I propose to award Rs.1,00,000/- towards pain

and suffering.

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18. As regards to the loss of income during the period of

treatment for three months, the Tribunal has granted

Rs.58,800/-, which is just and reasonable and there is no

need for interference.

19. As regards the medical expenses, the Tribunal has

awarded Rs.3,21,000/- on the basis of the medical bills and

the other documents produced by the petitioner. The said

award is just and proper and not called for interference.

20. As regards future happiness and amenities, the

Tribunal has awarded Rs.50,000/- which is enhanced to

Rs.75,000/-. There is no other document produced by the

petitioner to show that he has spent more than Rs.75,000/-.

21. As regards the future medical expenses, the Tribunal

is granted Rs.75,000/-, the said amount is reasonable and

does not require interference.

22. In all, the appellant is entitled for a modified

compensation as tabulated below:

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                                               NC: 2024:KHC:20259





Sl.                                                  Amount in
              Heads of compensation
No.                                                   Rupees

1     Loss of future income on account of            12,34,800-00
      disability

2     Pain and sufferings                             1,00,000-00

3     Loss of income during the period of                 58,800-00
      treatment

4     Medical expenses                                3,21,000-00

5     Future happiness and amenities                      75,000-00

6     Future medical expenses                             75,000-00

                                           Total    18,64,600-00

23. 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

dated 01.08.2022 passed by the Motor Accident

Claims Tribunal, Udupi in M.V.C.No.569/2019, is

hereby modified;

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(iii) The appellant would be entitled to a sum

of Rs.18,64,600/- as against Rs.15,32,360/-

awarded by the Tribunal;

(iv) The enhanced compensation shall be paid

by the respondent insurance 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) The appellant is entitled for the release of

entire enhanced compensation with interest.

(vi) Registry is directed to return the trial