Karnataka High Court

K C Nithyananda vs K O Naveen on 9 January, 2025

                                             -1-
                                                       NC: 2025:KHC:802-DB
                                                       MFA No. 5961/2014




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 9TH DAY OF JANUARY, 2025

                                           PRESENT
                          THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                                             AND
                         THE HON'BLE MR JUSTICE C.M. POONACHA
                     MISCELLANEOUS FIRST APPEAL NO. 5961/2014 (MV-I)

                BETWEEN:

                K C NITHYANANDA
                S/O CHOWDESHWARA SHETTY
                AGED ABOUT 40 YEARS
                BUSINESSMAN AND AGRICULTURIST
                R/O MARUTHI COMPLEX, OPP: WATER TANK
                BYPASS ROAD, KALYANAGAR
                CHIKMAGALUR 577101
                                                               ...APPELLANT
                (BY SRI. SHIVASHANKAR S K, ADVOCATE)

                AND:


Digitally       1.    K O NAVEEN
signed by K S         S/O ONKARAPPA
RENUKAMBA             AGED ABOUT 24 YEARS
Location:             R/O KARTHIKEE VILLAGE & POST
High Court of         CHIKMAGALUR TALUK 577101
Karnataka             RIDER OF MOTOR
                      CYCLE NO KA 18-Q-9039

                2.    S NAGARAJA
                      S/O SHASHIDHAR SINDHAGI
                      PARTNER, RELIABLE AGRO TRADING
                      SGS COMPLEX, K M ROAD
                      CHICKMAGALUR 577101
                      OWNER OF MOTORCYCLE
                      NO KA-18-Q-9039

                3.    THE BRANCH MANAGER
                                -2-
                                            NC: 2025:KHC:802-DB
                                            MFA No. 5961/2014




    UNITED INDIA INS. CO LTD
    CRESCENT COURT
    K ROAD, CHICKMAGALUR 577101
                                                  ...RESPONDENTS
(BY SRI. MOHAN K.N, ADVOCATE FOR
    SRI. S VISHWESHWARAIAIH., ADVOCATE FOR R1 & R2
    SRI. RAVISH BENNI, ADVOCATE FOR R3)

      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 2.4.2014          PASSED IN MVC
NO.564/2011 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE,
MEMBER, MACT, CHIKMAGALUR, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND ETC.

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

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


                         ORAL JUDGMENT

(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

"Whether the compensation awarded to the

appellant/claimant under the impugned award is just and

proper?" is the question involved in this case.

2. The appellant was the petitioner and the

respondents in this appeal were the respondents in MVC

No.564/2011 on the file of the I Additional District Judge and

MACT, Chikkamagaluru (for short the 'Tribunal'). For the

purpose of convenience, the parties are referred to henceforth

according to their ranks before the Tribunal.

NC: 2025:KHC:802-DB

3. On 25.5.2011 at about 11.30 a.m., when the

claimant was proceeding on motor cycle bearing No.KA-

18/K.6500 near Chikkamagaluru Coffee Curing Works,

respondent No.1 who was riding the motor cycle bearing

No.KA-18/Q.9039 hit the claimant's bike. In the accident, the

claimant suffered injuries. He was shifted to Holy Cross

Hospital, Chikkamagaluru. After initial treatment, he was

shifted to Nanjappa Hospital, Shivamogga. At the relevant

time, respondent Nos.2 and 3 were the registered owner and

insurer of motor cycle bearing No.KA-18/Q.9039.

4. The claimant filed MVC No.564/2011 against the

respondents alleging that due to the accidental injuries, he has

suffered permanent physical disability and loss of future

earnings. He further contended that the accident and the

consequential injuries occurred, solely due to the actionable

negligence on the part of respondent No.1 in riding the motor

cycle bearing No.KA-18/Q.9039. The claimant contended that

he had spent huge amount towards medical expenses and he

has lost lot of amenities etc., therefore, the respondents are

liable to pay a compensation of `30.00 lakhs.

NC: 2025:KHC:802-DB

5. Respondent Nos.2 and 3 filed their statement of

objections and contested the claim proceedings denying the

occurrence of the accident due to the actionable negligence on

the part of respondent No.1. They further denied the age of

the claimant, avocation, income and permanent physical

disability suffered by him and sought for dismissal of the claim

petition. Respondent No.1 adopted the objections of

respondent No.2.

6. Before the Tribunal, the claimant was examined as

PW.1 and his wife was examined as PW.3. The doctor, who

treated the claimant was examined as PW.2. On behalf of the

claimant, Exs.P1 to P169 and Exs.C1 to C7 were marked. The

respondents did not lead any oral evidence. However, the

driving licence of respondent No.1 and the insurance policy of

motor cycle bearing No.KA-18/Q.9039 were marked as Exs.R1

and R2 respectively.

7. The Tribunal on hearing the parties and examining

the evidence, by the impugned award held that the accident

occurred due to the actionable negligence on the part of

respondent No.1 in riding the motor cycle bearing No.KA-

18/Q.9039. The Tribunal assessed the permanent disability of

NC: 2025:KHC:802-DB

the claimant at 15%, considered his income at `19,000/- pm.,

applied 15 multiplier and awarded compensation of `5,13,000/-

under the head of loss of future income. The Tribunal, in all

awarded compensation of `7,61,000/- under different heads as

follows:

         Sl.        Particulars            Amount in
         No                                (`)
         1          Pain and Agony                  40,000.00
         2          Medical expenses,            1,70,000.00
                    special          diet,
                    attendant charges
                    and conveyance
         3          Future     loss     of       5,13,000.00
                    income on account
                    of loss of earning
                    capacity
         4          Loss    of    income            38,000.00
                    during     laid    up
                    period
                                    Total        7,61,000.00

8. The claimant has challenged the said award on the

ground that the permanent physical disability assessed by the

Tribunal is contrary to the evidence on record and

compensation awarded on the other heads is also on the lower

side.

9. Reiterating the grounds of appeal Sri Shivashankar

S.K, learned counsel for the appellant referring to the evidence

on record seeks reassessment of the compensation. Whereas,

NC: 2025:KHC:802-DB

Sri Ravish Benni, learned counsel for respondent No.3 and Sri

Mohan K.N, Sri S.Visweswaraiah, learned counsel for

respondent No.2 justify the impugned award.

Analysis

10. The respondents have not challenged the finding of

the Tribunal that due to the actionable negligence on the part

of respondent No.1 in riding the motor cycle bearing No.KA-

18/Q.9039 the accident occurred and the claimant suffered

injuries as deposed by PW.2/doctor. The insurer has also not

disputed its liability to pay the compensation by virtue of the

contractual liability under Ex.R2. Therefore, the only question

is whether the compensation awarded is just and proper.

11. As per Ex.P105- driving licence, the date of birth of

the claimant is 15.11.1974. Therefore, as on the date of the

accident i.e., 25.5.2011, he had completed 36 years of age. It

was also not disputed that the claimant was initially treated in

Holy Cross Hospital, Chikkamagaluru and after preliminary

treatment, he was shifted to Nanjappa Hospital, Shivamogga.

The evidence of PW.2 and Ex.C1 - wound certificate available

on record show that the claimant had suffered the following

injuries:

NC: 2025:KHC:802-DB

"1) A lacerated wound over the occipital region;

2) Right ear bleeding;

3) CT scan - Brain - Plain - dt. 25.5.2011 -

impressions:

i) Acute Extra Axial Hematoma (EDH) in Right Temporo - parietal convexity;

ii) Acute Extra Axial Hematoma (SDH) in left Fronto - Temporal Regions;

iii) Hemorrhagic Contusions in left Frontal and Temporal Lobes;

iv) Acute Subarachnoid Hemorrhage in left Cerebral Hemisphere;

v) 4 MM Mid Line Shift towards right side;

vi) Fractures of Squamous and Mastoid parts of right Temporal bone;

vii) Undisplaced fracture of right parietal bone.

     4)    Mild (R) Hemiparesis

     5)    Mild memory deficits

     6)    urinary incontinence

     7)    claudication difficulty"

It was opined that injury No.1 was simple in nature and

injury Nos.2 to 7 being internal injuries, were grievous in

nature.

12. The claimant was treated as an inpatient in

Nanjappa Hospital between 25.5.2011 and 6.6.2011. The

evidence of PW.2 further shows that during that time, the

NC: 2025:KHC:802-DB

claimant was surgically operated to stop bleeding in the brain

and he was on artificial respiratory support. PW.2 deposed that

the claimant was on follow up treatment in Nanjappa Hospital

and examined on the following dates:

12.6.2011, 27.6.2011, 25.7.2011, 6.9.2012, 6.9.2013

31.12.2011 and 15.3.2013.

13. PW.2 further deposed that the claimant was

complaining of head ache, loss of memory, mental stress,

impairment of cognitive power, hence, he was sent to

Psychiatrist. The Psychiatrist assessed the disability at 47%.

PW.2 further deposed that on 6.4.2013 he examined the

claimant and found him suffering with 50% permanent physical

disability to the whole body. The Tribunal reduced the same to

15% saying that 50% disability is not assessed by PW.2 and

that he relied on the assessment made by the Psychiatrist.

Such reading of the evidence by the Tribunal is erroneous.

PW.2 clearly stated that he examined the claimant on 6.4.2013

and assessed the disability at 50%. In the cross-examination

of PW.2, his competence to assess the disability was not at all

questioned. He denied the suggestion that 50% disability does

not relate to the whole body. Under the circumstances, the

NC: 2025:KHC:802-DB

Tribunal was not justified in reducing the permanent physical

disability to 15%.

14. The claimant contended that he was carrying on

poultry farming business and agriculture and earning `30,000/-

pm. To prove his income, he relied on the income tax returns -

Exs.P102 to 104. Out of them, Exs.P103 and 104 were

submitted subsequent to the accident. Therefore, it is safe to

rely on Ex.P102, which was submitted prior to the accident. As

per the said income tax returns acknowledgement for the

assessment year 2010-11, the gross income of the claimant

was `2,19,735/-. Out of that, the tax assessed was `9,288/-.

Therefore, his annual income would be (`2,19,735-`9,288/- =)

`2,10,447/-. The applicable multiplier is 15. Therefore, loss of

future earning would be `2,10,447/-

x15x50/100=`15,78,352.50/- rounded off to `15,78,360/-.

15. Having regard to the nature of injuries and the

other evidence on record, the compensation awarded under the

heads of pain and agony, attendant charges, diet and travel

expenses need to be enhanced. Awarding a compensation of

`75,000/- under the head of pain and suffering and `25,000/-

- 10 -

NC: 2025:KHC:802-DB

under the head of attendant charges, diet and travel expenses

would meet the ends of justice.

16. The Tribunal awarded `1,56,300/- under the head

of medical expenses by rejecting certain bills. However, having

regard to the nature of injuries, treatment and period of

hospitalization, awarding `1,60,000/- under the head of

medical expenses would meet the ends of justice.

17. The Tribunal has not awarded any compensation

under the head of loss of amenities. Considering the nature of

injuries and the evidence on record, it would be just and proper

to award `50,000/- under the head of loss of amenities.

18. Considering the medical evidence on record and the

nature of employment of the claimant, it is clear that the

claimant would not have attended his work at least for three

months. Therefore, three months income has to be considered

for loss of income for laid up period, which comes to `52,600/-,

rounded off to `50,000/-.

19. Therefore, the just compensation payable is as

follows:

- 11 -

                                                     NC: 2025:KHC:802-DB





     Sl.          Head of compensation               Amount in
     No.                                             (` )
     1      Loss of future earnings                  15,78,360.00
     2      Medical expenses                          1,60,000.00
     3      Pain and suffering                           75,000.00
     4      Attendant charges, diet              and     25,000.00
            travel expenses
     5      Loss of income during laid up    50,000.00
            period
     6      Loss of amenities                50,000.00
                           Total          19,38,360.00
                   Awarded by Tribunal     7,61,000.00
                       Enhancement        11,77,360.00

20. Accordingly, the appellant/claimant is entitled to

enhanced compensation of `11,77,360/-. The enhanced

compensation shall carry interest at 6% pa., and the appeal

deserves to be allowed in part.

21. Hence, the following:

ORDER

i) The appeal is partly allowed;

ii) The appellant/claimant is entitled to enhanced compensation of `11,77,360/- with interest at 6% pa., from the date of petition till its realization;