Partly allowed

Vishwanath S/O. Narayanappa Kambar v. Mahadevappa S/O. Kudleppa Magi

Karnataka HC13 Aug 2020MFA/20450/2012

Case brief

AI extract

What is this about?

This appeal challenges the compensation quantum awarded in a motor accident case. The High Court corrected the Tribunal's error in the accident date, recalculated compensation based on notional income and disability percentages, and increased awards for future loss of income, pain and suffering, and loss of amenities, while allowing the appeal in part.

What did the court decide?

Compensation enhanced to Rs.1,33,000/- including Rs.1,51,200/- for future loss, Rs.40,000/- for pain and suffering, and Rs.30,000/- for loss of amenities, with 6% p.a. interest.

Vishwanath S/O. Narayanappa Kambar Vs Mahadevappa… — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF AUGUST 2020

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BEFORE

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THE HON’BLE MR. JUSTICE M.NAGAPRASANNA

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MFA No.20450/2012(MV)

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BETWEEN:

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VISHWANATH S/O. NARAYANAPPA KAMBAR AGE: 24 YEARS, OCC: CARPENTER R/O. GADDANAKERI CROSS, TQ: BAGALKOT.

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.. APPELLANT

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(BY SRI.ANAND R.KOLLI, ADV.)

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AND:

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MAHADEVAPPA S/O. KUDLEPPA MAGI AGE: MAJOR, R/O. SAPTAGIRI BADAWANE, POST: GADDANAKERI, TQ & DIST: BAGALKOT

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., BELGAUM.

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THE BRANCH MANAGER. NATIONAL INSURANCE CO. LTD., MELLIGERI COMPLEX, BAGALKOT.

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.. RESPONDENTS

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(BY SRI.SHASHANK S.HEGDE, ADV. FOR R2 ND R3, R1 SERVED AND UNREPRESENTED)

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THIS APPEAL IS FILED UNDER U/SEC.173(1) OF THE MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DTD:21-11-2011 PASSED IN MVC NO.632/2009 ON THE FILE OF THE MACT.NO-II, BAGALKOT, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal, though listed for admission, is taken up for final disposal with the consent of the learned counsel appearing for the parties.

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This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the claimant being aggrieved by the judgment dated 21.11.2011 passed by the Member, Motor Accident Claims Tribunal-II, Bagalkot, in M.V.C. No.632/2009.

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Parties will be referred to as per their ranking before the Claims Tribunal.

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Facts giving rise to the filing of the appeal briefly stated are that, on 14.05.2009, the claimant along with his friend Sangamesh were proceeding towards Gaddanakeri to Bijapur on a motorcycle bearing Reg.No.KA-29/H-9577 and the claimant was pillion rider.

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When they came near Kortikolar bridge at about 8.45 p.m., the rider of the motorcycle was riding it in a rash and negligent manner, resulting in the motorcycle turning upside down, due to which the claimant fell down and sustained grievous injuries. It is transpires that, claimant was shifted to Dr.Kanthi Nursing Home, Bagalkot where he took treatment and incurred huge medical expenses. He was working as carpenter and due to the injuries suffered his earning capacity was lost for a period in which he was laid up filed a claim petition before the MACT-II, Bagalkot in MVC No.632/2009 claiming compensation of Rs.15,00,000/- along with interest at 18% p.a.

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On service of notice, the respondents appeared and filed their respective statement of objections. Respondent No.1 contended that the petition filed by the claimant is false, frivolous and vexatious and denied the age, occupation and monthly income of the claimant. Respondent No.2-Insurance Company also filed its written

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statement denying the age, occupation and monthly income of the claimant. The very factum of accident was denied by the Insurance Company. It is further contended that the rider of the motorcycle did not have any valid driving licence to drive the particular class of vehicle. It was contended that the accident is not occurred due to negligence of the rider of the offending vehicle and it was the mistake of the pillion rider namely, the claimant.

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On the basis of the pleadings of the parties, the Tribunal framed the issues and thereafter recorded the evidence.

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The claimant, in order to prove his case, examined himself as P.W.1 and two doctors who treated him as P.Ws.2 and 3 and got exhibited documents namely Exs.P1 to Ex.P15. The respondent-Insurance Company did not examine any witness in their favour but marked two documents as Exs.R1 and R2.

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Based upon the aforestated evidence, the

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Tribunal determined compensation payable to the claimant at Rs.2,24,730/- for the injuries sustained by him in the road traffic accident. The claimant being aggrieved by the quantum of compensation arrived at by the Tribunal has preferred this instant appeal seeking enhancement of compensation.

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I have heard Sri.Anand R.Kolli, learned counsel for the appellant-claimant and Sri.Shashank S.Hegde, learned counsel for respondent Nos.2 and 3.

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The learned counsel for the claimant would contend that the Tribunal has grossly erred in taking the income of the claimant at Rs.3,000/- p.m. notwithstanding the fact that the claimant was earning Rs.6,000/- p.m. and though the accident has taken place on 14.05.2009, the Tribunal has erred in taking it as 14.05.2006 and determined the compensation accordingly. It is further submitted that the multiplier applicable to the case on hand

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was ‘18’ and the Tribunal has erred in taking the multiplier of ‘17’. Insofar as disability is concerned, the learned counsel for the claimant would submit that the doctor who were examined as P.Ws.2 and 3 in their evidence have stated the disability due to the fracture is to the tune of 42% to the whole body and disability taken by the Tribunal at 10% is erroneous and without any reason.

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On the other hand, learned counsel for the respondent-Insurance Company would submit that the compensation awarded by the Tribunal is already on the higher side and does not require any enhancement. In the light of the fact that the injuries sustained by the claimant due to the accident were not grievous injuries and the Tribunal has adequately compensated the claimant. He further submitted that compensation awarded on all other hands are adequate and does not warrant any interference at the hands of this Court.

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I have given anxious consideration to the

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submissions made at the bar and perused the material on record.

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At the outset, it is required to notice that the Tribunal has recorded the date of accident as 14.05.2006. A perusal of the copy of the complaint Ex.P2 produced by the claimant indicates that complaint was registered on 16.05.2009 stating that the accident had taken place on 14.05.2009. Copy of Ex.P1-FIR also discloses that, date and time of the accident to be at 8.45 p.m. on 14.05.2009. Thus, the Tribunal taking it as 14.05.2006 is erroneous and the compensation will have to be done on the basis of the date of the accident having taken place on 14.05.2009.

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Admittedly, the claimant who claims to be working as a carpenter has not produced any evidence to show the income that he has claimed. Thus, the notional income will have to be derived at as per the chart provided by the Karnataka Legal Services Committee. In terms of

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the chart, for the accident of the year 2009, the notional income is taken at Rs.5,000/-. The evidence of the doctors P.Ws.2 and 3 who treated the claimant have stated that the claimant has suffered disability of 42%. The disability of 42% to the fracture of fibula and tibia to the whole body will have to be 1/3^rd i.e., 14%. The age of the claimant at the time of the accident was 24 years and the multiplier of

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‘18’ is to be applied. Thus, the claimant would be entitled to compensation of Rs.1,51,200/- (Rs.5,000/- x 12 x 18 x 14%) towards loss of future income.

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Now coming to the compensation under the

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head of pain and suffering, the claimant has undergone surgeries for two major fractures. The claimant has undergone the following treatment for the injuries

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sustained.

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i. Implant in situ in right femur with maluniting fracture.

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ii. Implant in situ in right tibia with maluniting fracture.

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iii. Shortening of right lower limb by 4 cms.

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iv. Restriction of right knee joint by 30%.

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v. Hypotrophy of right thigh with leg muscles.

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vi. Limping gait.

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Hence, I deem it appropriate to award Rs.40,000/- on

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the head ‘pain and suffering’ as against Rs.15,000/awarded by the Tribunal.

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Insofar as ‘loss of amenities’ is concerned, which

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is also on the lower side at Rs.12,000/-. I deem it appropriate to enhance it to Rs.30,000/-. Both of which are according to the chart provided by the Karnataka Legal Services Committee. Thus, the claimant would be entitled to enhanced compensation of Rs.1,33,000/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till its satisfaction by the respondent-Insurance Company. To the aforesaid extent, the judgment of the Tribunal is modified.

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Accordingly, the appeal is allowed in part.

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The amount in deposit, if any, shall be transferred to the Tribunal forthwith.

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Sd/JUDGE MBS/-

Vishwanath S/O. Narayanappa Kambar v. Mahadevappa S/O. Kudleppa Magi

Case brief

What is this about?

What did the court decide?

Vishwanath S/O. Narayanappa Kambar v. Mahadevappa S/O. Kudleppa Magi

Case brief

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What did the court decide?

What the court decided

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