Karnataka High Court

Mr. Chandrakanth Pai vs Smt. Shakunthala on 5 February, 2025

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                                                         NC: 2025:KHC:5386-DB
                                                             MFA No. 6536/2013




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 5TH DAY OF FEBRUARY, 2025

                                           PRESENT
                          THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                                              AND
                          THE HON'BLE MR JUSTICE C.M. POONACHA
                   MISCELLANEOUS FIRST APPEAL NO. 6536/2013 (MV-I)

                   BETWEEN

                   MR. CHANDRAKANTH PAI
                   S/O LATE SHANTHARAM PAI
                   AGED ABOUT 43 YEARS
                   REP BY HIS WIFE SMT SUMANGALA PAI
                   R/O DAMODAR NIVAS, KODI ROAD
                   OPP: MANGAL STORE, HANGLUR
                   KUNDAPURA TALUK
                   UDUPI DISTRICT-576201
                                                                    ...APPELLANT
                   (BY SRI. MAHESH KIRAN SHETTY, ADVOCATE)

                   AND
Digitally signed
by NIRMALA
DEVI               1 . SMT. SHAKUNTHALA
Location: HIGH         W/O VIDYANANDA S SUVARNA
COURT OF               AGED ABOUT 28 YEARS
KARNATAKA
                       R/O THENKA NIDYURU VILLAGE
                       KODAVURU
                       UDUPI-576201

                   2 . THE NEW INDIA INSURANCE CO LTD
                       BRANCH OFFICE: IIND FLOOR,
                       SRI RA, ARCADE
                       UDUPI-576201
                                                                 ...RESPONDENTS
                   (BY SRI. C.R. RAVISHANKAR, ADVOCATE FOR R2
                    NOTICE TO R1 IS DISPENSED WITH V/O DTD 7.1.2025)
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                                                  NC: 2025:KHC:5386-DB
                                                   MFA No. 6536/2013




      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 28.07.2012, PASSED IN MVC
NO.594/2008 ON THE FILE OF THE RESIDING OFFICER, FAST TRACK
COURT, MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND ETC.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.01.2025, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, POONACHA. J., DELIVERED THE
FOLLOWING:

CORAM:         HON'BLE MRS JUSTICE K.S.MUDAGAL
               and
               HON'BLE MR JUSTICE C.M. POONACHA


                               CAV JUDGMENT

(PER: HON'BLE MR JUSTICE C.M. POONACHA)

The present appeal is filed by the claimant challenging the

judgment and award dated 28.07.2012 passed in

MVC.No.594/2008 by the Fast Track and Motor Vehicle Accidents

Claims Tribunal, Kundapura1, seeking for enhancement of

quantum of compensation.

2. Parties are referred to as per their ranks before the

Tribunal for the sake of convenience.

3. The relevant facts leading to the present appeal are

that the claimant filed claim petition in MVC No.594/2008

against respondent Nos.1 and 2 contending, inter-alia, that on

Hereinafter referred as to 'Tribunal'

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19.02.2007 when he was proceeding from Kundapura towards

Udupi along with his family members by driving Maruthi car

bearing No. KA-20-A-4523, Mahindra tempo bearing No. KA-20-

A-7219 came in a rash and negligent manner from the opposite

side and hit the Maruthi car being driven by the claimant causing

the accident in question, as a result of which, he sustained

grievous injuries. He claimed compensation for the injuries

sustained in the said accident from respondent Nos.1 and 2, the

owner and insurer of the Mahindra tempo.

4. The claim petition was contested by respondent

No.2/ insurer by filing statement of objections. Respondent

No.1/ owner remained ex-parte before the Tribunal. The

claimant examined himself as PW.1, a witness as PW.2 and two

Doctors as PW.3 and PW.4. Ex.P.1 to Ex.P.1154 were marked in

evidence. The respondents did not adduce any oral evidence.

The policy of insurance is marked as Ex.R.1.

5. The claimant claimed that he was a business man

and owner of the Damodar Emission Testing Centre, Kundapura

and earning `40,000/- per month. To prove his income, the

claimant produced income tax returns as Exs.P.1143(A),

1144(A), 1145 and 1146. The Tribunal assessed the income of

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the deceased as `1,00,000/- per year. The Tribunal has

assessed the disability at 60% and awarded a total

compensation of `29,50,000/- together with interest at 6% per

annum on `28,50,000/- (by excluding the interest on future

medical expenses). The Tribunal held the respondents jointly

and severally liable to pay the compensation and directed

respondent No.2 / insurer to pay the compensation. Being

aggrieved the claimant has filed the above appeal seeking

enhancement of compensation.

6. The finding of the Tribunal on negligence and liability

has attained finality and the only question that is being

considered in the present appeal is, the adequacy of the

quantum of compensation.

7. Heard submissions of learned counsel Sri. Mahesh

Kiran Shetty for the appellant and learned counsel Sri.

C.R.Ravishankar for the respondent No.2 / insurer.

8. It is the contention of the learned counsel for the

appellant / claimant that having regard to the nature of injuries

sustained and the medical evidence adduced, the Tribunal ought

to have assessed a higher percentage of disability. It is further

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contended that income of `1,00,000/- per annum assessed by

the Tribunal is on the lower side and having regard to the fact

that the claimant has produced his income tax returns, the gross

income of `2,16,338/- as per Ex.P.1141 ought to have been

taken into consideration by the Tribunal. It is further contended

that the compensation awarded on various other heads is

inadequate and the same requires to be enhanced.

9. Per contra, learned counsel for respondent No.2 /

insurer vehemently opposed any enhancement and contends

that the Tribunal has rightly awarded compensation on various

heads and in fact awarded excess compensation on certain

heads. Hence, learned counsel for respondent No.2/ insurer

seeks for dismissal of the above appeal.

10. The submissions of both the learned counsels have

been considered and the material on record have been perused

including records of the Tribunal.

11. The question that arises for consideration is,

"Whether the quantum of compensation awarded by the Tribunal

requires to be enhanced?"

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12. The age of the claimant has been assessed as 38

years by the Tribunal which is just and proper and not under

challenge.

13. It is forthcoming from the wound certificate (Ex.P.4)

issued by the Hitech Hospital, Udupi, that the claimant has

sustained lacerated wound over the scalp and head injury. Both

the said injuries are grievous in nature.

14. The claimant has produced inpatient bill (Ex.P.6)

from the Hitech Hospital, Udupi, wherein he was treated as an

inpatient on 19.12.2012 for one day. Thereafter, the claimant

has produced various discharge bills from Kasturba Hospital,

Mangalore i.e., Exs.P.7 to 13, 1143 and 1151 as also inpatient

bills from Adarsha Hospital, Udupi, as Exs.P.1147 and 1148. The

said discharge bills indicate that the claimant was treated as an

inpatient for a total period of 485 days. The Tribunal has noticed

the medical bills produced as Exs.P.6 to 1139 and Exs.P.1147 to

1150 and assessed the medical expenses incurred as

`13,47,711/-.

15. The claimant has adduced the testimony of two

Doctors PWs.2 and 3. Dr. Surendra Kamath (PW.3) an

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Orthopaedic surgeon has issued disability certificate on

31.03.2010 (Ex.P.1140), which discloses that there is shortening

of right lower limb by 2.5 cm., stiffness of right hip, loss of

flexion, abduction and rotation by 30%, wasting of right gluteal

and thigh muscles and instability of right hip. It is further stated

that the claimant has partial permanent disability of 20% of

right lower limb function. PW.3 has also deposed that he has

operated on the claimant three times for controlling infection,

that the claimant requires hip replacement surgery and that said

surgery was not performed since the clamant was not fit. PW.3

has been elaborately cross-examined and he has stated that as

per the discharge summary there is slight improvement in

sensorium in the form of fixing gaze of claimant. He has also

been cross-examined about old dislocation of right limb. He has

further stated that if hip replacement surgery is performed the

percentage of disability may come down.

16. Dr. Ravish Thunga is a Psychiatrist who has been

examined as PW.4 and the disability certificates issued by him

have been marked as Exs.P.1152 and 1152(A). PW.4 has

deposed that the claimant has long standing deficits in

behavioural and cognitive areas, because of which, he has got

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difficulty in taking care of his personal needs like daily activities

on daily living. That the claimant has problem in interaction,

gets irritated easily, shouting and screaming for no reason and

he also has memory problem. That he has treated the claimant

along with Dr. Murulidhar Pai at KMC. Hospital, Mangalore, as

inpatient and in the outpatient department about eight times. He

has deposed regarding the sequence of behaviour and cognitive

deficits. The disability is assessed as 65%. PW.4 has been

elaborately cross-examined and he has stated that for other

consequences, due to head injury, neurosurgeon is competent to

speak. PW.4 admits that the claimant has not lost memory

power. That he has learnt that claimant was doing business

earlier and is not doing business after the accident.

17. The Neuro-Psychological report issued by Dr.

Chandrakanth Pai has been marked as Ex.P.1153, wherein it is

stated that the claimant has deficits in lobar function especially

bilateral fronto-temporal deficits. That the tests of intellectual

functioning, falls in the range of Mild Mental Retardation, that

patient has gross personality changes, he has become non co-

operative, does not communicate freely and is violent and

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temper tantrums. However, in the said report there has not been

any assessment of disability.

18. The claimant has not examined any neurologist to

speak about the report - Ex.P.1153 and other aspects. The

Tribunal has assessed the permanent disability at 60% to whole

body.

19. Having regard to the medical documents and

testimony of PW.3 and PW.4, it is clear that in the disability

certificate issued by PW.3 (Ex.P.1140) the partial permanent

disability is mentioned as 20% to the right lower limb and in the

disability certificate issued by PW.4 (Ex.P.1152) the disability is

mentioned as 65%. It is clear that present case is not one of

paraplegia and the functions of the lower body of the claimant

have been affected apart from certain neurological functions as

noticed above. Keeping in mind the totality of the facts and

circumstances of the case, it is just and proper that the disability

of the claimant be re-assessed as 65%.

20. With regard to income of the claimant, the

acknowledgement for having filed the income-tax return for the

Assessment Year 2007-2008 has been marked as Ex.P1143(A).

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The basis of the said income-tax return containing the detailed

statement of accounts has been marked as Exs.P1144(A), 1145

and 1146. The said exhibits disclose that the return has been

filed on 26.12.2007 i.e., after the date of the accident. The said

documents are of the claimant who has been described as the

Proprietor of M/s Damodar Engineering Works. However, no

other documents apart from Exs.P.1143(A), 1144(A), 1145 and

1146 have been produced to demonstrate that the claimant was

carrying on business. No documents like statutory registrations

like the one under the Karnataka Shops and Commercial

Establishments Act, 1961, regarding the proprietorship concern

of M/s Damodar Engineering Works to indicate the nature of

business carried out by the said proprietorship concern have

been produced. The documents produced cannot form the sole

basis for the assessment of income as contended by the

claimant. The Tribunal has, upon noticing various material on

record assessed the annual income of claimant at `1,00,000/-

per annum. The appellant/ claimant has failed to demonstrate

that the said assessment is in any manner erroneous and

contrary to any specific material on record and required to be

enhanced.

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21. Having regard to the aforementioned, the

compensation is re-assessed as follows:

i. The Tribunal, noticing the various injuries sustained by the

claimant and the material on record has awarded compensation

of `1,50,000/- towards pain and suffering which is just and

proper.

ii. The Tribunal has noticed the medical bills and recorded a

finding that the claimant has produced total medical bills

amounting to `13,47,711/-. Hence, it is just and proper that a

sum of `13,50,000/- be awarded towards medical expenses.

iii. The Tribunal has awarded compensation towards

conveyance, special diet, nourishment and attendant charges

along with medical expenses. However, having regard to the fact

that the claimant was treated as inpatient for a period of 485

days and as outpatient on several times and keeping in mind the

nature of injuries sustained, it is clear that the claimant required

the assistance of an attendant as well as incurred expenses

towards diet and other charges. Hence, to award just and fair

compensation on the said head, same is reassessed at

`1,25,000/-.

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iv. The Tribunal has awarded a sum of `75,000/- towards loss

of amenities. However, having regard to the nature of injuries

sustained and extent of disability, it is just and proper the said

compensation be re-assessed as `1,25,000/-.

v. Having regard to the fact that the disability of the claimant

is re-assessed at 65%, future prospects requires to be added at

40%. Hence, the compensation towards disability is re-assessed

as (1,00,000/- + 40% =1,40,000/- X 65% =91,000/- X 15)

13,65,000/-.

vi. PW.3 has deposed that hip replacement surgery is required

to be performed and that costs between 2 to 2.5 lakhs and in

such event, there is possibility of some improvement in his

condition. PW.4 has deposed that the claimant has long standing

behavioural and cognitive deficit areas. Hence, it is clear that the

claimant has to incur future medical expenses. Keeping in mind

the same, it is just and proper that future medical expenses be

re-assessed at `2,00,000/- as against `1,00,000/- awarded by

the Tribunal.

22. Accordingly, the total compensation under various

heads is re-assessed as follows:

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                                                 NC: 2025:KHC:5386-DB





Sl.No.          Heads            Amount awarded        by Amount
                                 the Tribunal (`)         awarded      by
                                                          this Court (`)
1.       Towards pain and                       150000.00     150000.00
         agony
2.       Towards       medical                 1525000.00         1350000.00
         expenses,                                                 125000.00
         conveyance, special
         diet,    nourishment
         and        attendant
         charges
3.       Compensation                           200000.00              00.00
         towards     loss   of
         income         during
         treatment period
4.       Towards future loss                    900000.00         1365000.00
         of income
5.       Loss of amenities                       75000.00          125000.00
6.       Future        medical                  100000.00          200000.00
         expenses
                 Total                    2950000.00          3315000.00


     23.     Hence,     the   claimant    is    entitled    for    enhanced

compensation of (`33,15,000/- - `29,50,000/-) `3,65,000/-

along with interest at 6% p.a.

24. In the result, the following:

ORDER

The appeal is allowed in part.

The impugned award in MVC No.594/2008 on the file of

the Fast Track and Motor Vehicle Accidents Clams Tribunal,

Kundapura, is modified as follows:

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i) The claimant is entitled to enhanced compensation of

`3,65,000/- with interest at 6% pa., from the date of petition till

its realization;

ii) Respondent No.2 - Insurer shall deposit the

aforesaid compensation before the Tribunal within four weeks

from the date of the receipt of the copy of this judgment;