Partly allowed

Mr. Hariprasad v. Mr. Ashoka

Karnataka HC10 Aug 2018MFA/496/2017

Case brief

AI extract

What is this about?

The High Court, in an appeal against a Motor Accidents Claims Tribunal award, enhanced compensation for a motorcycle rider injured in a rash and negligent manner. The court adjusted awards for pain and suffering, loss of income due to disability, laid-up period, and loss of amenities based on medical evidence and income assessments.

What did the court decide?

Impugned award modified; compensation enhanced to Rs. 3,05,940 with interest at 6% per annum; Insurance Company directed to deposit amount within three weeks.

Mr. Hariprasad Vs Mr. Ashoka — Motor Accident Claims | Karnataka HC (2018)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF AUGUST, 2018

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BEFORE

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THE HON'BLE MR.JUSTICE H. T. NARENDRA PRASAD

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MFA NO. 496/2017 (MVC)

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BETWEEN:

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MR. HARIPRASAD, S/O PURUSHOTHAM K., AGED ABOUT 32 YEARS, R/AT KAKYANA HOUSE, K.C.ROAD, LAILA VILLAGE & POST, BELTHANGADY TALUK, D.K. PIN – 574 242.

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. . . APPELLANT

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(BY SRI. G. RAVISHANKAR SHASTRY, ADVOCATE)

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AND:

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MR. ASHOKA, S/O JINAPPA, AGED 32 YEARS, R/AT MALNA HOUSE,

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CHIBIDRE VILLAGE,

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KAKKINJE POST, BELTHANGADY TALUK, D.K. DISTRICT, PIN – 574 242.

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NATIONAL INSURANCE CO. LTD., BRANCH OFFICE SRI KSHETHRA

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DHARMASTALA BUILDING, PUTTUR TALUK, D.K. REP. BY ITS DIVISIONAL OFFICE, NATIONAL INSURANCE CO. LTD., BHARATH BUILDING, P.M.RAO ROAD, MANGALORE TALUK, D.K. REP. BY ITS DIVISIONAL MANAGER, PIN – 575 003.

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(BY SRI. SHIVARAJ PATIL, ADVOCATE)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED: 08.12.2016 PASSED IN MVC NO. 1087/2015 ON THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE, MEMBER, MACT, DAKSHINA KANNADA, MANGALORE, PARTLY ALLOWINIG THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Being aggrieved by the judgment and award dated 08.12.2016 in M.V.C.No.1087/2015 passed by the IV Addl. District Judge & MACT, D.K., Mangalore, by which the Tribunal has granted compensation of Rs.1,17,700/- with interest at 6%, the appellant-

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claimant has filed the present appeal seeking

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enhancement of compensation.

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Brief facts of the case:

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On 2.5.2015 at about 1.30 p.m., the appellant

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Hariprasad was proceeding as a rider in a Honda Activa vehicle bearing Registration No.KA-21-R-6013 from Charmadi towards Belthangady. When he reached in front of the Ujire SDM Hospital, Belthangady Taluk, at that time a motor cycle bearing Registration No.KA-21 S-6121 ridden by its rider at a high speed in a rash and negligent manner which was proceeding in front of his motor cycle, suddenly took a ‘U’ turn and dashed to the appellant’s Honda. Due to this impact, the appellant was thrown to the road and sustained injuries. Immediately, he was shifted to Benaka Hospital, Ujire. After first aid he was shifted to the Tejaswini Hospital, Mangalore, where he was admitted as an in-patient from 02.05.2015 to 07.05.2015. During that period, he

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had undergone surgery. After recovering from the injury, he had filed a claim petition before the Tribunal in MVC No.1087/2015.

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To establish his case, the appellant examined himself as PW-1 and examined Dr. Mahabalesh Shetty as PW-2 and got marked 16 documents. On the other hand, the Insurance Company has not examined any witnesses. But they have produced one document Exhibit R-1 Insurance Policy.

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Learned counsel Shri G. Ravishankar Shastry

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appearing for the appellant has contended that the appellant was working as a welder to eke out his living and was earning a sum of Rs.20,000/- per month. At the time of the accident, he was aged about 30 years. Due to the accident, he has suffered the following injuries:

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“1. 04CM wound exposing muscles/bone over the anterior aspect of

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distal 1/3^rd right leg right tibia shaft fracture.

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Left great toe joint dislocation and injuries all over the body.”

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Even after discharge from hospital, the appellant

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is said to be suffering from pain and is not in a position to attend his work. Hence, the Tribunal is not justified in awarding a meager amount Rs.25,000/- under the head ‘Pain and suffering’.

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It is secondly contended that the appellant has examined one Dr. Mahabalesh Shetty who was a medico-legal consultant. Along with Dr. Shantaram Shetty, the said Dr. Mahabalesh Shetty was also a signatory to the Disability Certificate. The said Disability Certificate discloses that the appellant has suffered 24% permanent disability to his right lower limb. Hence he submits that the Tribunal was not justified in not granting any compensation under the head of ‘Loss of income due to disability’.

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He further contended that prior to the accident, the appellant was working as a welder and earning Rs.20,000/- per month. As a result of the accident he has undergone operation and was in-patient for six days and was unable to go to work for a period of three months and hence had no earning during the said period. But however, no compensation has been awarded by the Tribunal in the category of ‘Loss of income during laid-up period’.

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He further contended that due to the accident, appellant has suffered 24% disability to his right lower limb. Due to this disability, that he cannot stand on his affected limb and he cannot walk or run without any difficulty. He also cannot climb the stairs and he has specifically stated that even today, he is suffering the pain. Hence, he contends that the Tribunal is not justified in granting only Rs.10,000/- towards loss of amenities.

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He further submitted that the Doctor who was

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examined as PW-2 has stated that the appellant has to further undergo surgery in order to get his implant removed which would cost Rs. 26,000/-. But however the Tribunal has granted only Rs. 15,000/-. Therefore, the learned counsel for the appellant seeks for enhancement of compensation under the above heads.

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On the other hand, learned counsel appearing

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for the insurance company submitted that even though

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the appellant has claimed that he was working as a welder and earning Rs.20,000/- p.m., he has not produced any material to establish that he was earning Rs. 20,000/- p.m. Even though the appellant has examined Dr. Mahabalesh Shetty as P.W.2, he has not examined the Doctor who had treated the appellant. Therefore, the Tribunal is justified in not granting any compensation to him under the head ‘loss of income due to disability’. He further contended that since the

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appellant has not produced any document to evidence the monthly earning of the claimant and further had not established the disability, the Tribunal has rightly not granted any compensation for the laid-up period.

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It is further contended that as far as loss of amenities is concerned, even though the appellant has suffered the injuries, the fracture has been re-united. Therefore, the Tribunal is justified in granting Rs.10,000/- under the head ‘loss of amenities’.

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He further submitted that towards future medical expenses is concerned, the appellant has examined Dr. Mahabalesh Shetty who has stated in his testimony that the implant is not required to be removed in all cases and further he has stated that he is not an orthopedic surgeon. Taking into consideration the said fact, the Tribunal has rightly granted compensation of Rs.15,000/- under the head ‘future medical expenses’. Accordingly the learned counsel for the respondent – Insurance Company seeks for dismissal of the appeal.

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Heard the learned counsel for the parties,

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perused the records and award.

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It is not in dispute that the appellant was

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injured in the accident that occurred on 02.05.2015.

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Due to the accident he has suffered grievous injuries namely,

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04CM wound exposing muscles/bone over the anterior aspect of distal 1/3^rd right leg right tibia shaft fracture.

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Left great toe joint dislocation and injuries all over the body.

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Immediately thereafter he had undergone

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surgery of his right leg. He was an in-patient for a period of six days. The specific case of the appellant is that even after discharge from the hospital, due to the injuries and fracture even now he is suffering from pain. He has to suffer the pain throughout his life. Therefore, the Tribunal is not justified in granting only Rs. 25,000/- under the head ‘pain and suffering’. In my

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opinion the compensation under the head ‘pain and suffering’ has to be enhanced from Rs. 25,000/- to Rs. 40,000/-.

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The appellant has examined Dr. Mahabalesh Shetty as P.W.2. It is not in dispute that Mahabalesh Shetty is also one of the Doctors along with Dr. Shantharam Shetty who had treated the appellant. Along with Dr. Shantharam Shetty, Dr. Mahabalesh Shetty has issued the disability certificate. Both of them are said to be working in the same hospital and both are the treating doctors of the appellant. They have assessed the permanent disability of the appellant to the extent of 24% to the right lower limb. The Tribunal is not justified in granting any compensation under the head of ‘Loss of income due to disability’, since there is a disability assessed by the Doctor in respect of the lower limb to the extent of 24%. In the opinion of this Court, the whole body disability of the

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appellant can be taken as one-third. Accordingly, the whole body disability of the appellant is assessed at 8%.

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In respect of the income of the appellant is

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concerned even though he has claimed that he was working as a welder and earning Rs. 20,000/-, he has not produced any documents. Under these circumstances the only course open to this Court is to assess the notional income of the appellant. To assess the notional income, in a catena of decisions, this Court has taken into consideration the chart prepared by the Lok Adalath for assessing the notional income of the claimants. For the accident which occurred in the year 2015 in respect of a claimant aged 30 years, the notional income is required to be taken as Rs. 9,000/p.m. Accordingly, the notional income of the appellant in this case is taken at Rs. 9,000/- p.m.

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Since he was aged about 31 years, the multiplier has to be applied as ‘16’. Accordingly the loss of income on the basis of disability is calculated as follows:

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9000 X 12 X 16 X 8/100 = Rs.1,38,240/-

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Moreover, the Tribunal is not justified in not

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awarding any compensation under the head ‘Loss of income during laid-up period’. The appellant had undergone surgery and was an in-patient for a period of six days and he was unable to attend to his work even after discharge from the hospital. Therefore, this court is of the opinion that the appellant is entitled for a sum of Rs.20,000/- in the category of ‘Loss of income during laid-up period’.

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The appellant who had suffered injuries in the accident has examined the Doctor, who has assessed 24% permanent physical disability of the right lower limb. Due to this injury, there is terminal restriction of the movement of plantar flexion at ankle joint, terminal restriction of movement of forefoot inversion and unable to stand on the affected limb, walking running ascending and descending stairs and squatting. Even now, he is suffering from pain. He has to suffer this

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disability throughout his life. Therefore, the Tribunal is not justified in granting only Rs.10,000/- in the category of ‘Loss of amenities’. In this category, the compensation is enhanced from Rs.10,000/to Rs.25,000/-.

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Towards the category of ‘Future medical expenses’ is concerned, even though the Doctor PW-2 who was examined has stated in his testimony that the appellant requires Rs.25,000/- for removal of implants, but in his cross-examination, he has admitted that he is not an Orthopedic surgeon and in some cases, it does not require for removal of the implants. Considering this aspect of the matter and evidence of the parties, the Tribunal has rightly granted compensation of Rs.15,000/- under the head of ‘Future medical expenses.

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For the reasons stated above, this appeal is allowed in part. The impugned award dated

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08.12.2016, stands modified as under:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Painand sufferings	25,000	40,000
Loss of income on the basis ofdisability	0	1,38,240
Loss of income during laid offperiod	0	20,000
Loss ofamenitiesin life	10,000	25,000
Medicalexpenses	65,200	65,200
Futuremedicalexpenses	15,000	15,000
Attendant & Misc.	2,500	2,500
Expenses
Total	1,17,700	3,05,940

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The Insurance Company is directed to deposit, with the learned Tribunal, the entire compensation amount, along with an interest @ 6% per annum, from the date of filing of the claim petition till the date of realization, within a period of three weeks from the date of receipt of the certified copy of this judgment. The amount so deposited shall be released forthwith to the appellant by the learned Tribunal after verifying his identity.

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Sd/JUDGE

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Mr. Hariprasad v. Mr. Ashoka

Case brief

What is this about?

What did the court decide?

Mr. Hariprasad v. Mr. Ashoka

Case brief

What is this about?

What did the court decide?

What the court decided

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