Partly allowed

Kamalakar Timmappa Naik v. Chindodi Vijay Kumar

Karnataka HC8 Apr 2019MFA/102908/2017

Case brief

AI extract

What is this about?

Motor accident appeal where the High Court allowed the claim in part to enhance compensation awarded by the Tribunal. The Court corrected the calculation of future earning capacity and increased awards for pain and suffering, conveying, and food/nourishment, while affirming medical expenses.

What did the court decide?

Appellant entitled to reassessed compensation of Rs.14,98,300/- with interest at 8%; 50% in fixed deposit for three years.

Kamalakar Timmappa Naik Vs Chindodi Vijay Kumar — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 8^TH DAY OF APRIL 2019

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PRESENT

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THE HON’BLE MR. JUSTICE G.NARENDAR

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AND

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THE HON’BLE MR. JUSTICE BELLUNKE A.S.

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MISCELLANEOUS FIRST APPEAL NO.102908 OF 2017(MV)

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BETWEEN:

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KAMALAKAR TIMMAPPA NAIK AGE: 45 YEARS, OCC: NIL, R/O: EKKAMABI SIRSI R/BY WIFE MAHADEVI KAMALAKAR NAIK (SINCE APPELLANT IS NOT ABLE TO SIGNATURE, HIS WIFE REPRESENTING APPELLANT)

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... APPELLANT

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(BY SRI. GIRISH S. HIREMATH, ADV.)

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AND:

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CHINDODI VIJAY KUMAR, S/O SHRIKANTESH, MAJOR R/O: D.NO. 225, SOG COLONY, C. BLOCK, DAVANAGERE, (INSURER OF CAR BEARING NO. KA-51/MC-8529)

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NATIONAL INSURANCE CO. LTD. R/BY ITS BRANCH MANAGER, BRANCH OFFICE, HOSPET ROAD, SIRSI, (INSURER OF CAR BEARING NO. KA-51/MC-8529)

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... RESPONDENTS

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(BY SRI. P.H. PAWAR, ADV. FOR R2. NOTICE TO R1 DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 25.01.2017 PASSED IN MVC NO.252 OF 2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, SIRSI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY, BELLUNKE A.S., J ., DELIVERED THE FOLLOWING :

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JUDGMENT

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Though the appeal is listed for admission, the matter was heard finally with the consent of the learned counsel for both the parties and an order was passed on an interlocutory application permitting the wife of the appellant-claimant to represent him, as the appellant is said to have suffered severe neurological disability.

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This appeal is filed by the claimant against the judgment and award passed dated 25.01.2017 passed by the learned Senior Civil Judge and Addl. Motor Accident Claims Tribunal, Sirsi, (hereinafter referred to as the ‘Tribunal’, for the sake of brevity) in MVC No.252 of 2014.

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The appellant-claimant had preferred a petition before the Tribunal seeking compensation for the injuries suffered by him in a road traffic accident that occurred on 17.05.2014 on account of rash and negligent act of the driver of the car bearing registration No.KA-51/MC-8529. The said petition was heard by the Tribunal and it was found that the accident was due to rash and negligent act of the driver of the vehicle in question. Respondents 1 and 2 were jointly and severally held liable to satisfy the award. The Tribunal, based on the evidence and material on record, quantified the compensation payable to the petitioner at Rs.9,01,800/-.

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Being dissatisfied with the quantum of compensation awarded, the appellant has preferred this appeal on the following grounds:

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It is contended that the petitioner had suffered grievous injuries. He has suffered neurological disability on account of depressed fracture of

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parietal bone and linear non-displaced fracture over the occipital bone. The petitioner had incurred more than Rs.4,50,000/towards medical expenses but the Tribunal has granted only Rs.4,13,800/-. The documents to prove the said fact are at Exs.P-16 to 119. The Tribunal has also awarded meager compensation towards food and nourishment and attendant charges. Compensation awarded towards conveyance charges is also on the lower side. Loss of future income on account of the disability suffered is not taken into consideration. The Tribunal should have taken the permanent disability at 82%. The Tribunal has wrongly assessed the monthly income of the petitioner at Rs.5,000/- as against the claim of Rs.12,000/- per month. Hence, learned counsel for appellant-claimant prayed to allow the appeal and enhance the compensation by modifying the impugned award.

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Learned counsel for the respondent fairly conceded that they have not challenged the award either on the ground that the compensation awarded is excessive nor their liability. Therefore, the only point that arises for consideration is as to

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Whether the appellant-claimant would be entitled to enhancement of compensation? If yes? What is the quantum to which he is entitled to?

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On perusal of the award passed by the Tribunal, we find that the Tribunal committed an error in awarding lesser compensation towards pain and suffering. The appellant has suffered depressed fracture in parietal bone and linear non-displaced fracture over the occipital bone. The document at Ex.P4 corroborates the same. In addition to that the appellant has also taken prolonged treatment as an inpatient. The appellant has also suffered permanent disability. The document to that effect is at Exs.P.5, 6, 127 to 129. Hence, a sum of Rs.40,000/- awarded by

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the Tribunal under the head Pain and suffering is on the lower side. Therefore, we are inclined to enhance it to Rs.60,000/- and the same stands enhanced. As regards medical expenses is concerned, it is based on the documents produced by the petitioner. Hence, the same remains un-disturbed. As regards the awarding of compensation of Rs.3,000/- and Rs.10,000/- under the heads food, diet, nourishment etc and conveyance charges, respectively, we find that same to be on the lower side. Hence, the same are enhanced by Rs.7,000/- and Rs.15,000/- respectively. As regards, loss of earning capacity during treatment period/laidup period is concerned, the same is liable to be enhanced by a further sum of Rs.22,000/-.

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As regards loss of future earning capacity due to permanent disability is concerned, only a sum of Rs.3,90,000/- is awarded by the Tribunal. Admittedly, the appellant was said to be doing agriculture and coolie work. The Tribunal in the absence of any documentary evidence on record, has taken notional monthly income

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of the claimant at Rs.5,000/-. The Tribunal considering the medical evidence on record and considering the neurological disability, has taken the disability at 50% leading to awarding a meager compensation under the head loss of future earning capacity. The disability assessed by the Tribunal at 50% is affirmed. The accident is of the year 2014. Even in cases before Lok Adalat, monthly income of the claimant is taken at Rs.8,500/- per month. Hence, the monthly income of the claimant is assessed at Rs.8,500/- per month. In addition to that 25% of the monthly salary (8500x25%=2125) is added towards future prospects of the claimant. By adopting multiplier of 14, as the claimant was aged 42 years at the time of accident and by taking permanent disability at 50%, the claimant would be entitled to a sum of Rs.8,92,500/10625x12x14x50%) towards loss of future earning capacity. A sum of Rs.25,000/- awarded by the Tribunal towards loss of amenities appears to be just and proper and the same does call for any

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enhancement. Hence, the claimant would be entitled to

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reassessed compensation of Rs.14,98,300/- as follows:

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Sl. No .	HEADS	Rs.
1	Towards pain and suffering	1,00,000/-
2	Towardsmedicalexpenses	4,13,800/-
3	Towardsfood, diet,nourishment etc	10,000/-
4	Towards conveyance charges	15,000/-
5	Towards loss of earning during laidup period	42,000/-
6	Towards loss of future earning capacity on account of permanent disability	8,92,500/-
7	Towardsloss of amenities	25,000/-
	Total	14,98,300/-

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Therefore, the appellant would be entitled to enhanced compensation of Rs.5,96,500/-. Accordingly, we pass the following order:

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The appeal is allowed in part. The judgment and award dated 25.01.2017 passed by the learned Senior Civil Judge and Addl. Motor Accident Claims Tribunal,

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Sirsi, in MVC No.252 of 2014 is modified. The claimant is entitled to reassessed compensation of Rs.14,98,300/- with interest at 8% per annum on the enhanced compensation of Rs.5,96,500/-. 50% of the enhanced compensation shall be invested in the name of the appellant in fixed deposit in any nationalized bank or schedule bank for a period of three years with liberty to withdraw the periodical interest. The remaining 50% of the compensation amount shall be released in favour of the claimant on proper identification.

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Registry is directed to send back the records to the Tribunal concerned forthwith.

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Sd/JUDGE

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Sd/JUDGE

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kmv

Kamalakar Timmappa Naik v. Chindodi Vijay Kumar

Case brief

What is this about?

What did the court decide?

Kamalakar Timmappa Naik v. Chindodi Vijay Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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