Karnataka High Court
Shri.Sidram S/O Laxman Pujeri vs Shri.K. Duraiswamy S/O Kalimuttu on 27 June, 2024
Author: S G Pandit
Bench: S G Pandit
-1-
NC: 2024:KHC-D:8765-DB
MFA No. 102447 of 2022
C/W MFA No. 100019 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.102447 OF 2022 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.100019 OF 2020
IN MFA NO.102447 OF 2022
BETWEEN:
SHRI SIDRAM S/O. LAXMAN PUJERI,
AGE. 38 YEARS, OCC. AGRICULTURE NOW NIL,
R/O. RAIBAG, DIST. BELAGAVI
...APPELLATE
(BY SRI V.S. KALASURMATH, ADVOCATE)
AND:
1. SHRI K.DURAISWAMY S/O. KALIMUTTU,
AGE. MAJOR, OCC. BUSINESS,
R/O. HIDAKAL DAM, TQ. HUKKERI,
Digitally signed DIST. BELAGAVI.
by VINAYAKA B V
Location: HIGH 2. THE DIVISIONAL MANAGER,
COURT OF
KARNATAKA NATIONAL INSURANCE COMPANY LTD.,
RAMADEV GALLI, BELAGAVI.
...RESPONDENTS
(BY SRI GANGADHAR S.HOSAKERI, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS UNDER SECTION
173 (1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT
AND AWARD DATED 18.10.2019 PASSED IN MVC
NO.2684/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG, ALLOWING THE
-2-
NC: 2024:KHC-D:8765-DB
MFA No. 102447 of 2022
C/W MFA No. 100019 of 2020
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.,
IN MFA NO.100019 OF 2020
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
RAMADEV GALLI, BELAGAVI,
(INSURER OF TRIPPER BEARING NO.GA-09/U-4904)
POLICY NO.610201311610007949
VALID FROM 20.02.2017 TO 19.02.2018
NOW REPRESENTED BY ITS AUTHORIZED
SIGNATORY ADMINISTRATIVE OFFICE,
REGIONAL OFFICE, HUBBALLI.
...APPELLATE
(BY SRI GANGADHAR S.HOSAKERI, ADVOCATE)
AND:
1. SHRI SIDRAM S/O. LAXMAN PUJERI,
AGE. 38 YEARS, OCC. AGRICULTURE NOW NIL,
R/O. SAVASUDDI, TQ. RAIBAG, DIST. BELAGAVI.
2. SHRI K.DURAISWAMY S/O. KALIMUTTU,
AGE. MAJOR, OCC. BUSINESS,
R/O. HIDAKAL DAM, TQ. HUKKERI,
DIST. BELAGAVI.
(OWNER OF TIPPER BEARING NO.GA-09/U-4904)
...RESPONDENTS
(BY SRI V.S. KALASURMATH, ADVOCATE FOR R1;
NOTICE TO R2 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS UNDER SECTION
173 (1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT
AND AWARD DATED 18.10.2019 PASSED IN MVC
NO.2684/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG, AWARDING
COMPENSATION OF RS. 20,79,102/- WILL INTEREST AT 6%
P.A. FROM THE DATE OF PETITION ITS DEPOSIT.
-3-
NC: 2024:KHC-D:8765-DB
MFA No. 102447 of 2022
C/W MFA No. 100019 of 2020
THESE MISCELLANEOUS FIRST APPEALS, COMING ON
FOR FURTHER ORDERS, THIS DAY, BASAVARAJA, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
Both these appeals arise out of the judgment and award
dated 18th October, 2019 passed in MVC No.2684 of 2017 by
the Senior Civil Judge and JMFC, Raibag (for short hereinafter
referred to as "the Tribunal").
2. For the sake of convenience, the parties in these
appeals are referred to with their rank and status before the
Tribunal.
3. Brief relevant facts that led to filing of these
appeals are that the petitioner filed claim petition under Section
166 of the Motor Vehicles Act, 1988 seeking compensation for
the injuries suffered in the road traffic accident. It is stated in
the claim petition that on 07th December, 2017 at about 2.30
pm, near Belladbagewadi Canal on Hukkeri-Belladbegewadi
road, the petitioner was proceeding on motorcycle bearing
Registration No.KA-23/EC-0505, at that time, the driver of the
Tipper bearing Registration No.GA-09/U-4904 drove the same
in a high speed, rash and negligent manner causing danger to
NC: 2024:KHC-D:8765-DB
the human life, and lost his control and dashed to the
motorcycle being ridden by the claimant and caused the
accident. Due to impact the petitioner sustained compound
comminuted fracture proximal one-third right leg (tiba and
fibula) with cut lacerated wound 2 x 1 cm. Immediately, he
was shifted Ganga Surgical and Fracture Clinic, Gokak wherein
he was there as an inpatient for more than fifteen days and
spent Rs.2.50 lakhs towards medical expenses. It is further
stated that the petitioner is aged 35 years, was an agriculturist
and was also doing milk vending and earning an amount of
Rs.10.00 lakh per annum. The injured is the only earning
member in the family and due to the unfortunate accident, the
petitioner has become permanently disabled and unable to
work and earn as he was prior to accident. It is contended that
the respondent No.1 who is the owner of the offending Tipper
and the respondent No.2 who is the insurer are jointly and
severally liable to pay the compensation to the petitioner and
hence, prayed for compensation.
4. In pursuance to summons, respondents appeared
and filed statement of objections. The sum and substance of
respondent No.1 denying the averments made in the claim
NC: 2024:KHC-D:8765-DB
petition. The contention of the clamant that the driver of the
offending vehicle drove the same in a rash and negligent
manner is denied and hence, prayed for dismissal of the claim
petition.
5. The respondent No.2-Insurer in its statement of
objections stated that the petition is not maintainable in the
eye of law. It is also contended that the driver of the Tipper
did not possess valid and effective driving licence as on the
date of accident. It is also denied as to the other averments
made in the claim petition and accordingly, sought for dismissal
of the claim petition.
6. Based on the pleading, Tribunal framed appropriate
issues. To prove the case of the petitioner, petitioner has
examined two witnesses as PWs.1 and 2 and marked sixteen
documents as per Exhibits P1 to P16. The respondents have
not adduced any evidence. Upon hearing the arguments on
both sides, the Tribunal allowed the claim petition with costs
and awarded compensation of Rs.20,79,102/- with interest at
the rate of 6% per annum excluding the amount of
Rs.5,00,000/- awarded towards purchase of artificial limbs.
NC: 2024:KHC-D:8765-DB
Being aggrieved by the judgment and award passed by the
Tribunal, the appellant-Insurance Company has preferred MFA
No.100019 of 2020 questioning the quantum of compensation;
being not satisfied with the compensation awarded by the
Tribunal, the claimant has preferred MFA No.102447 of 2022
seeking enhancement of compensation.
7. Sri Gangadhar Hosakeri, learned counsel appearing
for the appellant-Insurance Company submits that the
judgment and award passed by the Tribunal is contrary to law
and the facts of the case and the same is erroneous. The
Tribunal has failed to appreciate the evidence as well as
documents placed before it by the parties. As regards quantum
of compensation is concerned, it is the submission of the
learned counsel that the Tribunal as committed an error in
awarding Rs.5,00,000/- towards purchase of artificial limb. He
submits that the petitioner has only submitted the quotation
and has not let in any evidence to prove the said document.
The learned counsel would further submit that the Tribunal has
considered 80% disability to the whole body which is arbitrary
and the same deserves to be interfered with. Further, he
submits that time and again the Constitutional Courts have held
NC: 2024:KHC-D:8765-DB
that, without any basis the Tribunal should not presume the
income of the petitioner and award just compensation.
However, the Tribunal in the instant case, has not considered
the law laid down by the constitutional courts and has awarded
very high compensation and the same is to be revisited by this
Court. On all these grounds, sought to allow the appeal.
8. On the other hand, Sri V.S.Kalasurmath, learned
counsel appearing for the claimant would submit that the
Tribunal has awarded compensation of Rs.12,28,800/- towards
loss of future earning taking the monthly income of the
claimant at Rs.8,000/- per month and taking 80% disability to
the whole body, which is meager and the same requires
enhancement. The Tribunal has committed an error in
awarding Rs.80,000/- under the head pain and suffering though
the injury caused is grievous in nature and the claimant has
undergone operation and there is 100% functional disability on
account of amputation of limb, in spite of the same, the
Tribunal has awarded meager compensation. Further, though
the claimant has spent more than Rs.2.50 lakh towards
treatment and has produced the medical bills, so also, the
claimant needs medical treatment throughout his life, awarding
NC: 2024:KHC-D:8765-DB
of Rs.1,97,302/- under the said head is meager and requires
enhancement. It is further submitted that the compensation
awarded under other heads viz. food, nourishment and
conveyance charges, and loss of income during the laid up are
on lower side. On all these grounds sought to allow the appeal.
9. Having heard the learned counsel appearing for the
parties and on perusal of appeal papers, the following points
would arise for our consideration:
1. Whether the Tribunal is justified in awarding
compensation of Rs.5,00,000/- towards purchase
of artificial limb?
2. Whether the claimant is entitled for enhancement
of compensation on other heads?
3. What order or award?
Our answer for the above points is as under:
Points No.1 & 2: partly in the affirmative;
Point No.3: as per final order
NC: 2024:KHC-D:8765-DB
Regarding Points No.1 and 2:
10. With regard to purchase of artificial limb is
concerned, the Tribunal has awarded Rs.5,00,000/-. In this
regard, the petitioner has produced only Exhibit P11
prescription and quotation. On that basis, the Tribunal has
awarded an amount of Rs.5,00,000/- for purchase of artificial
limb. The petitioner has not adduced or placed any cogent or
corroborative evidence to prove the said document. Hence,
Tribunal is not justified in awarding an amount of Rs.5.00 lakh
towards purchase of artificial limb. However, considering the
nature and gravity of injury, so also, the medical evidence, it is
just and proper to award an amount of Rs.3,00,000/- towards
purchase of artificial limb as against Rs.5,00,000/- awarded by
the Tribunal. Accordingly, we answer point No.1 in the partly
affirmative.
11. We have examined the material placed before this
Court. There is no dispute with regard to occurrence of
accident on account of rash and negligent act on the part of the
driver of the Tipper. It is also not in dispute as to claimant
suffering accidental injuries. Hukkeri Police has registered case
- 10 -
NC: 2024:KHC-D:8765-DB
in Crime No.221 of 2017 for the offence punishable under
Section 279 and 338 of Indian Penal Code and conducted
investigation and filed charge sheet against the driver of the
offending Tipper. The Insurance Company has questioned as to
the quantum of compensation awarded by the Tribunal. With
regard to quantum of compensation is concerned, the petitioner
has got himself examined as PW1. He has deposed in his
evidence that due to accident he has suffered grievous injuries.
The petitioner sustained compound comminuted fracture
proximal one-third right leg (tiba and fibula) with cut lacerated
wound 2 x 1 cm; Neuro-vascular compression and gangrene of
right lower limb, limb cold toe movements absent/no sensation
in toes/muscles unhealthy. It is stated that the petitioner was
an inpatient for fifteen days and had taken treatment to the
said injuries and spent more than Rs.2.50 lakh towards medical
expenses. PW2-Doctor has deposed that the petitioner
sustained injury in the road traffic accident, underwent
operation and was in hospital from 07th to 20th December, 2017
and has also stated as to the injuries suffered by the petitioner
as is deposed by PW1. It is further deposed that the petitioner
has undergone operation on 07th December, 2017 under spinal
- 11 -
NC: 2024:KHC-D:8765-DB
tourniquet fracture upper and right tibia exposed by lateral
incision reduced and stabilized by a IFS plate and screws
wound closed in layers above knee plaster with derotation bar
applied. On 08th December, 2017 has undergone plastic and
micro vascular faciotomy of post compartment, inside graft
taken from saphenois vein and joined to side of traumatized
popleateal artery and ant tibial artery bypassed clots removed
by foragti catheter and the wound closed partially and further
the patient has come up for follow-up treatment on 28th
December, 2017, 19th January, 2018, 28th February, 2018 and
on 14th March, 2018. The Ministry of Social Justice prescribed a
disability for amputation of lower limbs at 80%. PW2 is a
treated Doctor. Upon examination of the petitioner, it was seen
that the petitioner complain pain in the amputation area and he
is not able to stand and walk and has difficulty in sleeping,
wearing cloth, turning on bed, climbing staircase and has
imbalance and instability due to los of right lower limb and
hence he opined that the petitioner has got 100% functional
disability to the whole body. Considering the medical evidence
and the nature and gravity of injuries sustained by the
petitioner, we are of the opinion that it just and proper to
- 12 -
NC: 2024:KHC-D:8765-DB
assess the functional disability to the petitioner at 100%
instead of 80% assessed by the Tribunal.
12. With regard to the income of the petitioner is
concerned, the Tribunal has assessed the notional income of
the deceased at Rs.8,000/- per month, which is not in
consonance with the chart prepared by the Karnataka State
Legal Service Authority. According to chart, for the accidents
of the year 2017, the notional monthly income is to be taken at
Rs.10,250/-. Since we hold that the petitioner sustained 100%
permanent functional disability and since the petitioner is self-
employed, as per the decision of the Hon'ble Supreme Court in
the case of NATIONAL INSURANCE COMPANY LIMITED v.
PRANAY SETHI AND OTHERS, reported in AIR 2017 SC 5157,
the petitioner is entitled for 40% future prospects. Accordingly,
the monthly income would be come to Rs.14,350/-. Hence, the
compensation under the head loss of future income would be
Rs.27,55,200/- (Rs.14,350/- x 12 x 16 x 100%). As regards
pain and suffering is concerned, the Tribunal has awarded
compensation of Rs.80,000/- and the same is just and proper.
Considering the medical bills placed by the petitioner, the
Tribunal has awarded an amount of Rs.1,97,302/- towards
- 13 -
NC: 2024:KHC-D:8765-DB
medical expenses and the same is left unaltered. The Tribunal
has awarded an amount of Rs.48,000/- towards loss of income
during the laid up period. Since we hold that the petitioner has
suffered 100% permanent functional disability and the
compensation is awarded under the head loss of future income
by adding future prospects, the petitioner is not entitled for
compensation under the head loss of income during the laid-up
period. The Tribunal has awarded Rs.25,000/- towards food,
nourishment, attendant and conveyance charges. The same
does not call for any interference. The Tribunal has not
awarded any amount towards loss of amenities. Considering
the trauma and discomfort to be undergone by the petitioner
for the rest of his life, an amount of Rs.50,000/- is awarded
towards loss of amenities. The petitioner has sought an
amount of Rs.5.00 lakh for future medical expenses. Since the
petitioner has not placed any material before this Court to
substantiate his submission, the petitioner is not entitled for
compensation towards future medical expenses as sought for.
13. In the result, the petitioner is entitled for modified
compensation as under:
- 14 -
NC: 2024:KHC-D:8765-DB
Sl.No. Head Amount (in Rs.)
1. Pain and suffering
80,000.00
(as awarded by the Tribunal)
2. Loss of future income 27,55,200.00
3. Towards medical expenses (as
1,97,302.00
awarded by the Tribunal)
4. Loss of amenities 50,000.00
5. Food, nourishment, Attendant
and conveyance charges (as 25,000.00
awarded by the Tribunal)
6. Purchase of artificial limb 3,00,000.00
Total 34,07,502.00
Accordingly, we answer point No.2, partly in the affirmative.
Regarding point No.3:
14. For the aforestated reasons and discussions, we
proceed to pass the following:
ORDER
1. Appeals are partly allowed;
2. Judgment and award dated 18th October, 2019
passed in MVC No.2684 of 2017 by the Senior Civil
Judge and JMFC, Raibag is modified holding that the
claimant is entitled for compensation of
Rs.34,07,502/- as against 20,79,102/- which shall
carry interest at the rate of 6% per annum from the
date of petition till realisation, excluding the amount
- 15 -
NC: 2024:KHC-D:8765-DB
of Rs.3,00,000/- awarded towards purchase of
artificial limb;
3. The respondent-Insurance Company shall deposit
the award amount with interest within 60 days from
the date of receipt of certified copy of this
judgment;
4. Amount in deposit shall be transmitted to the
Tribunal forthwith;
5. Draw modified award accordingly;
6. Registry to transmit the trial court records along
with the copy of this judgment to the concerned
court forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
LNN
