Karnataka High Court

Sri. Shivaraj vs Sri. D. Surendranath And Anr on 24 October, 2024

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                                                          NC: 2024:KHC-K:7855
                                                      MFA No. 201460 of 2019




                              IN THE HIGH COURT OF KARNATAKA,
                                     KALABURAGI BENCH

                          DATED THIS THE 24TH DAY OF OCTOBER, 2024

                                             BEFORE
                   THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
                        MISCL. FIRST APPEAL NO. 201460 OF 2019 (MV-I)

                   BETWEEN:

                   1.   SRI. SHIVARAJ
                        S/O BASAVARAJ
                        27 YEARS
                        OCC:EX-DRIVER
                        R/O PWD CAMP
                        NOW AT L.B.S NAGAR
                        RAICHUR-584 101.
                                                                 ...APPELLANT

                   (BY SRI. BASAVARAJ R. MATH, ADVOCATE)

                   AND:

                   1.   SRI. D. SURENDRANATH
                        S/O D.HANUMANTHRAO
Digitally signed        MAJOR
by RENUKA
                        OCC:DRIVER CUM OWNER OF BOLERO
Location: HIGH
COURT OF                VEHICLE BEARING NO.KA.33/M-2945
KARNATAKA               R/O HANUMAN NAGAR CAMP
                        SURPUR, TQ.SURPUR
                        DIST. YADGIR -585 224.

                   2.   THE DIVISIONAL MANAGER
                        UNITED INDIA INSURANCE CO. LTD.
                        DIVISIONAL OFFICE, NEAR GANDHI CHOWK
                        RAICHUR-584 101.
                                                           ...RESPONDENTS

                   (BY SRI. RAHUL R. ASTURE, ADVOCATE FOR R2;
                      V/O/D 12.07.2024 NOTICE TO R1 IS DISPENSED WITH)
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                                             NC: 2024:KHC-K:7855
                                        MFA No. 201460 of 2019




       THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
CALL    FOR    THE   RECORDS    AND    MODIFY   THE   IMPUGNED
JUDGMENT AND AWARD DATED 25.10.2016 PASSED BY THE
PRL.SESSIONS JUDGE AT RAICHUR IN MVC NO.354/2015 IN
THE INTEREST OF JUSTICE AND EQUITY.


       THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:      HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM


                       ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)

The captioned appeal is by the claimant questioning

the compensation determined by the Tribunal in

MVC.No.354/2015. The respondent No.2/Insurance

company admits its liability. The appeal is purely on

quantum.

2. The appellant herein filed a claim petition for

having sustained multiple injuries in a road traffic accident

dated 28.04.2015. The appellant claimed that the driver of

the offending Bolero vehicle came in a rash and negligent

manner and caused the accident. Appellant claimed that

NC: 2024:KHC-K:7855

he has suffered multiple facial bone fractures on left side,

fracture of right shaft femur and fracture of right bones of

the leg and had to undergo three major surgeries and has

filed claim petition alleging that he was working as a

Driver and was earning Rs.12,000/- p.m. as salary and

Rs.3,000/- p.m. as an outstation bata.

3. The Tribunal having assessed the evidence on

record, notionally assessed the income at Rs.6,000/- and

awarded a sum of Rs.7,77,600/- under the head 'future

loss of earnings'. The Tribunal in all awarded a total

compensation of Rs.12,71,954/-.

4. Though records are not secured by this Court,

counsel for the appellant has placed on record certified

copy of the entire trial Court records. The disability

certificate issued by the Doctor would clinch the gravity of

injuries suffered by the appellant herein. This Court

deems it fit to cull out the disability certificate which reads

as under:

NC: 2024:KHC-K:7855

" This is to certify that I have examined Shivaraj, aged 23 years, resident of PWD Camp, Sindhanoor to assess his disability which followed after a road traffic accident on 28-4-2015.

He was initially admitted and treated at Government Hospital, Sindhanoor and later he was referred to Sri Dhanvanthri Hospital and Research centre, Raichur, for further management. On examination of the wound certificate issued by Govt. Hospital, Sindhanoor, he was having head injury with subarachnoid Hemorrhage and multiple maxilo facial fracture on left side.

Now on clinical examination and investigation after coming to Sri Dhanavanthri Hospital and Research centre, Raichur shows, head injury and subarachnoid Hemorrhage, multiple facial bone fractures on left side, right fracture shaft femur, right fracture both bones leg, C7-TT Subluxation, fracture of C5, C6 & C7 with nerve root avulsion of C6-C7 and C7-T1 nerve roots.

Now on clinical examination:

Healed surgical scar seen on posterior aspect of neck at gross muscle wasting of left shoulder girdle, arm, forearm and hand.

- Upper limb is flail, with no functions.

- ROM of cervical spine are restricted.

- Healed surgical scar seen on lateral aspect of right femur with discharging sinuses on lateral side

- Gross muscle wasting on thigh and gluteal region

- Knee range of motion restricted and stiffness seen

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- Healed surgical scar seen on anterior aspect of knee and medial aspect of right leg with discharging sinuses.

- Gross muscle wasting seen in Right leg segment

- Restricted range of movements of ankle and knee.

- Cervical spine X-ray shows, posterior instrumentation in Situ"

5. Upon meticulous examination of the disability

certificate, it becomes evident that the appellant, as

assessed by the examining doctor, is unable to use his left

upper limb due to a nerve root avulsion in the cervical

spine. The evidence provided by PW.2, the treating doctor,

further corroborates this condition, describing the left

upper limb as flail and functionally useless. PW.2's

testimony underscores that, owing to these severe

injuries, the appellant will no longer be able to operate a

vehicle, a significant finding considering that his

occupation was that of a driver. PW.2 also testified that

the cervical spine injury resulted in additional

complications, including bladder incontinence, which

further contributes to the overall severity of the

NC: 2024:KHC-K:7855

appellant's condition. Consequently, PW.2 opined that the

appellant suffers from a 70% permanent disability.

6. In evaluating the medical evidence, this Court

concurs that the appellant has endured grievous, life-

altering injuries, including the nerve root avulsion affecting

his cervical spine, rendering his left upper limb

nonfunctional. Given the severity and permanence of

these injuries, the doctor's assessment that the appellant

is no longer able to drive, a skill integral to his profession,

must be accepted. The defense had the opportunity

during cross-examination to challenge this conclusion,

particularly regarding the functionality of the appellant's

left upper limb, but failed to specifically dispute its

uselessness as described by PW.2. The absence of a

thorough challenge to this critical point further reinforces

the finding of disability. Moreover, this Court is inclined to

add a 40% increase in future prospects, recognizing the

permanent nature of the appellant's injuries and the

corresponding impact on his earning capacity.

NC: 2024:KHC-K:7855

Accordingly, a 40% enhancement is warranted to account

for the loss of future income potential due to the

appellant's permanent disability.

7. In absence of income proof, this Court is

inclined to rely on the income chart prepared by the Legal

Service Authority. Therefore, if the notional income of the

deceased is assessed at Rs.8,000/- and 40% is added, the

income is notionally assessed at Rs.11,200/-. Though

counsel appearing for the appellant vehemently argued

and persuaded to take 100% disability, however, this

Court is inclined to take cognizance of the medical

evidence more particularly disability certificate issued by

PW.2 who is a treating Doctor and has opined that

appellant has 70% disability to whole body with respect to

cervical spine, left upper limb and right lower limb. If

disability is considered at 70%, then income works out to

Rs.7,840/-. Proper multiplier is 18. Therefore, the

compensation payable under the head 'future loss of

earning' works out to Rs.16,93,440/- (7,840x12x18).

NC: 2024:KHC-K:7855

8. Considering the extent and severity of the

injuries sustained by the appellant, including five

fractures, this Court finds that he is entitled to

compensation under several heads to reflect the pain,

suffering, and long-term impact of his condition.

Specifically, for pain and suffering, given the physical and

emotional toll of enduring multiple fractures and other

severe injuries, a sum of Rs.1,25,000/- is deemed

appropriate. Additionally, the fact that the appellant will

face the remainder of his life with a non-functional left

upper limb warrants compensation for the considerable

loss of enjoyment and limitations in daily life that this

impairment will impose. Thus, under the head of loss of

amenities, this Court awards Rs.1,00,000/-. For the

period the appellant was incapacitated and unable to work,

known as the "laid-up period," he is granted Rs.48,000/-,

calculated at Rs.8,000/- per month for six months. This

compensation reflects the appellant's inability to work and

the resulting financial strain during his recovery.

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9. The compensation previously determined by the

Tribunal under medical expenses, amounting

to Rs.3,60,354/-, is retained by this Court, as it

adequately covers the documented medical costs incurred

by the appellant. Furthermore, considering the severity of

the injuries and the extended duration of treatment, an

amount of Rs.30,000/- is awarded under attendant

charges for the necessary assistance provided to the

appellant. Rs.20,000/- awarded under special food and

diet is also retained, acknowledging the need for a

specialized diet to aid recovery.

10. Accordingly, this Court recalculates the total

compensation owed to the appellant as Rs.23,76,794/- in

light of the gravity of his injuries and the prolonged impact

on his livelihood and lifestyle. This revised total

compensates for the profound physical, emotional, and

financial burdens endured by the appellant, as opposed to

Rs.12,71,954/- initially awarded by the Tribunal. Hence,

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NC: 2024:KHC-K:7855

the compensation awarded under different heads is as

follows:

      Sl.                   Heads                      Amount
      No.
     1.     Pain and sufferings                     Rs.1,25,000/-
     2.     Loss of income during laid up period    Rs.48,000/-
     3.     Loss of amenities                       Rs.1,00,000/-
     4.     Attendant charges                       Rs.30,000/-
     5.     Special Food and Diet                   Rs.20,000/-
     6.     Future loss of earnings                 Rs.16,93,440/-
     7.     Medical expenses                        Rs.3,60,354/-
                            Total                   Rs.23,76,794/-

11. For the foregoing reasons, this Court proceeds

to pass the following:

ORDER

(i) The appeal is allowed in part;

(ii) The judgment and award passed by the Tribunal in MVC.No.354/2015 is modified;

(iii) The appellant is entitled to enhanced compensation of Rs.11,04,840/- which shall carry interest at the rate of 6% per annum from the date of petition till realization;