Dismissed

The Managing Director v. Kiran Kumar H.B

Karnataka HC13 Nov 2018MFA/100786/2015

Case brief

AI extract

What is this about?

This High Court of Karnataka bench disposed of two special petitions challenging a Motor Accident Claims Tribunal award. The bench rejected the insurer's claim that the disability assessment was excessive and the victim's claim for enhancement, finding the Tribunal's award just and proper.

What did the court decide?

The special petitions and cross-objection filed by the appellant and cross-objecor were dismissed as devoid of merit.

The Managing Director Vs Kiran Kumar H.B — Medical Negligence | Karnataka HC (2018)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF NOVEMBER, 2018

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BEFORE

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THE HON’BLE MR. JUSTICE B.A. PATIL

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M.F.A.NO.100786/2015 (MV)

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C/W

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MFA CROB NO.100183/2015

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IN MFA NO. 100786 OF 2015

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BETWEEN

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THE MANAGING DIRECTOR K.S.R.T.C. BANGALORE DIVISION K.H.ROAD, SHANTHINAGAR, BENGALURU - 560 027. REP. BY ITS DIVISIONAL MANAGER KSRTC, BELAGAVI - 590001 (REPRENTED BY ITS DIVISIONAL MANAGER, KSRTC, BELGAUM-590001 OWNER OF VEHICLE NO.KA 01-F-9090) REPRESENTED BY ITS CHIEF LAW OFFICER. (BY SRI. F S DABALI, ADVOCATE) AND

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... APPELLANT

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KIRAN KUMAR H.B AGE: 37 YEARS, OCC: NIL PERMANENT ADDRESS: HULKULI POST: KATTEHAKALU, TEERTHAHALLI TQ, DIST: SHIVAMOGGA - 577432 CORRESPONDING ADDRESS: C/O. DATTATRAY KILLEKAAR,

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VANDAN COLONY, SHAHUNAGAR, BELAGAVI – 590001.

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... RESPONDENT

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(BY SRI.DEEPAK C. MAGANUR, ADVOCATE)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, PRAYING TO CALL FOR THE RECRODS AND MODIFY/SETASIDE THE JUDGMENT AND AWARD IN MVC NO.57/2013 DATED 14.11.2014 ON THE FILE OF THE MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HUKKERI.

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IN MFA CROB NO.100183 OF 2015

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BETWEEN

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KIRAN KUMAR H B AGE: 37 YEARS, OCC: CURRENT NIL, R/O: HULKULI, POST: KATTEHAKALU, TEERTHAHALLI, TQ & DIST: SHIVAMOGGA,

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...CROSS OBJECTOR

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(BY SRI. DEEPAK C. MAGANUR, ADVOCATE)

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AND

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THE MANAGING DIRECTOR KSRTC, BANGALORE DIVISION, K H ROAD, SHANTINAGAR, BENGALURU,

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REPRESENTED BY ITS DIVISION MANAGER, KSRTC, BELAGAVI. (OWNER OF THE VEHICLE NO.KA-01/F-9090)

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... RESPONDENT

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(BY SRI. F. S. DABALI, ADVOCATE )

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THIS MFA CROB IN MFA NO.100786/2015 IS FILED UNDER ORDER 41 RULE 22 OF CPC AGAINST THE JUDGMENT ANDAWARD DATED 14.11.2014 PASSED IN MVC NO.57/2013 ON THE FILE OF THE MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HUKKERI PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA AND MFA CROB. COMING ON FOR ADMISSION, THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.100786/2015 has been preferred by the appellant KSRTC, Bengaluru division and MFA Crob. No.100183/2015 has been filed by the

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appellant/claimant assailing the judgment and award passed by the Member Additional Motor Accident Claims Tribunal, Hukkeri in MVC No.57/2013 dated 14.11.2014.

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I have heard the learned counsel appearing for the parties.

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Brief facts of the case are that on 21.05.2012 at

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about 4.00 a.m. petitioner was proceeding in KSRTC Volvo bus No. KA 01/F 9090 from Mumbai to Shimoga for business purpose and on 22.05.2012 at 3.30 a.m. the said bus comes near Ghataprabha river bridge, the driver of the bus drove the bus in a rash and negligent manner and he lost the control and dashed against the tree situated on left side of the road and caused accident and as a result of the same petitioner sustained compression fracture and grievous injuries on his right forearm and forehead and over other parts of the body. Immediately, he was taken to District

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Hospital, Belagavi and thereafter he has been shifted to KLE hospital Belagavi for treatment. The petitioner was aged about 35 years and was earning more than 50,000/- per month. On these grounds he prays to allow the petition and award compensation.

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Respondent appeared through his counsel and has filed objections by denying the contents of the petition and further contended that the petition is not maintainable and the same is liable to be dismissed.

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After hearing the parties, the Court below has awarded an amount of Rs.10,16,018-00 with 6% interest, assailing the same, both respondent and claimant are before this Court.

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The main grounds urged by the learned counsel for the appellant-KSRTC are that the Tribunal was not justified in awarding an amount of Rs.5,60,768/towards loss of future income by assessing the disability at 16% as the respondent/claimant has not suffered

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any physical disability and the claimant has not a manual laborer. He further submitted that the Tribunal has also erred in considering the income of the claimant

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at Rs.2,19,050/- per annum while awarding the compensation. He further submitted that the compensation awarded under various heads is also on higher side and hence prays to allow the petition and to reduce the compensation awarded by the Tribunal.

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Per contra, the learned counsel appearing in MFA Crob submitted that the petitioner has suffered with disability at 48% and ought to have awarded the compensation. He further relied upon in the case of

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JAGDISH V/S MOHAN AND OTHERS and submitted

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that while assessing the disability that if the victim has suffered permanent disability even then not only for the physical injury for the treatment and also to lead normal life and enjoy amenities which he could have enjoyed if he has not suffered with the injuries,

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compensation ought to have awarded. He further submits that the compensation awarded is not adequate and as such he also prays to allow appeal and enhance the compensation.

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The accident in question is not in dispute. As could be seen from the judgment and award passed by the Court below the petitioner has produced Ex.P7 and 8 injury certificates issued by the Government hospital and KLE Hospital Belagavi and therein the petitioner has suffered crushed injury on his right forearm with CLW over face, compound fracture of right Ulna with transaction of proximal radial and Ulnar artries. However, the petitioner has also produced disability assessment certificate as per Ex.P13 that therein the doctor has assessed permanent physical disability to the extent of 48% to the right upper limb.

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The Court below after considering the fact that

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the petitioner was a business man and was earning

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more than Rs.50,000/- per month and maintain his family and he has also produced Ex.P18-intimation under Section 143(1) of the Income Tax Act and after considering the said fact and taking into consideration the age of the petitioner as per Ex.P17, the Court below by applying the multiplier of 16 and by taking the disability at 16% i.e. 1/3 disability to the whole body has awarded an amount of Rs.5,60,768/- towards loss of future income and an amount of Rs.52,000/- towards

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pain and sufferings, Rs.10,000/- towards loss of amenities , Rs.10,000/- towards Special diet, attendant and conveyance charges, Rs.18,250/- towards loss of income during treatment and Rs.3,65,000/- towards medical expenses. In all Tribunal has awarded Rs.10,16,018/- with 6% interest.

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Though during the course of argument learned counsel for the KSRTC submitted that the disability which has been taken at 16% to the whole body is on

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the higher side and that the petitioner is not a manual laborer. It ought to have seen that as per claimant he is a business man. But, Income tax records Ex.18 shows that he is having income from salary. No documents are produced to show that there is loss of future earnings. Even otherwise it ought to have seen that the claimant sustained fracture of right Ulna and even alleged physical disability will not affect future earning of the claimant by considering the nature of avocation.

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In the absence of any such materials the principles laid down in the petition are not applicable to the present case on record. Respondent also not produced any documents to show that he has been suffering with physical disability so as to lead his normal life and enjoy amenities. In the absence of such materials, the award which has been awarded by the Court below is just and proper and there is no good

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grounds to interfere with the order passed by the Court below.

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Hence, both petitions are dismissed as devoid of merits.

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The amount in deposit may be transferred to jurisdictional Tribunal to disburse in accordance with Law.

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IA No.1/2017 for withdrawal of amount does not survive for consideration.

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SD/-

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JUDGE

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HMB

The Managing Director v. Kiran Kumar H.B

Case brief

What is this about?

What did the court decide?

The Managing Director v. Kiran Kumar H.B

Case brief

What is this about?

What did the court decide?

What the court decided

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