Partly allowed

H C Kudlayya Basayya Hiremath v. Laxman G. S/O G. Iranna

Karnataka HC14 Aug 2020MFA/21091/2012

Case brief

AI extract

What is this about?

This miscellaneous first appeal under Section 173(1) of the Motor Vehicles Act, 1988, sought enhancement of compensation. The High Court calculated compensation based on notional income of Rs.4,250/month and a 16% disability, modifying the Tribunal's award to a total of Rs.3,07,200.

What did the court decide?

The judgment of the Claims Tribunal is modified and the appellant is entitled to a compensation of Rs.3,07,200/- with interest at 6% p.a.

H C Kudlayya Basayya Hiremath Vs Laxman G. S/O G. Iranna — Medical Negligence | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 14^{T H} DAY OF AUGUST 2020

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BEFORE

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THE HON’BLE MR. JUSTICE M.NAGAPRASANNA

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M.F.A.NO.21091/2012 (MV)

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BETWEEN :

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HC KUDLAYYA BASAYYA HIREMATH, AGE : 43 YEARS, OCC: TRANSPORT BUSINESS, R/O VIDYAGIRI, BAGALKOT, TQ. & DIST: BAGALKOT.

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…. APPELLANT

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(BY SRI ANAND R.KOLLI, ADVOCATE)

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AND :

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LAXMAN G. S/O G.IRANNA, AGE : MAJOR, OCC: OWNER OF VEHICLE, BEARING NO.AP-21/X-9141, R/O DOOR NO.9-31, PEDDA KADABUR, KARNUL DIST: A.P.

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., BELGAUM. RESPONDNETS

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(BY SRI N.R.KUPPELUR, ADVOCATE FOR R.2) (NOTICE TO RESPONDENT NO.1 : SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 21.12.2011 PASSED IN MVC.NO.110/2009 ON THE FILE OF IMEMBER, MACT.NO.IV, BAGALKOT SEEKING ENHANCEMENT OF COMEPNSATION.

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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 claimants being aggrieved by the judgment dated 20.12.2011 passed by the Member, Motor Accident Claims Tribunal-IV, Bagalkot at Bagalkot (hereinafter referred to as ‘the Tribunal’ for short), in M.V.C. No.110/2009.

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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 07.10.2008 at about 4.30 p.m., the claimant who was owner of the TaTa Ace goods vehicle bearing registration No.KA.29//6817 was driving himself transporting

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certain goods, when he was came near Rakkasagi village on Hunagund-Bagalkot road, at that point

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of time a vehicle bearing registration No.AP21/X-9141 being driven by its driver in a rash and negligent manner dashed into the goods vehicle to the claimant. As a result of the which, the claimant sustained grievous injuries and has to undergo treatment, for which, he claims to have spent considerable sums of money on the ground that he has sustained grievous following injuries :

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“1) Healed scar over right hip,

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2) Flexion at right hip is restricted at by 20%

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3) Internal rotation of right hip is restriction by 45%, and external rotation of right hip is restricted by 20%.

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4) Walk with slight limp on right side.

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5) Implant in Situ.”

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The claimant was filed a claim petition

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under Section 166 of the Act before the Tribunal

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in MVC.No.110/2009 on the ground that he was

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aged 40 years on the date of accident and he was earning Rs.5,000/per month claimed a compensation of Rs.20,00,000/along with interest.

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On service of notice, respondent No.1 who was by then no more. Though the legal representatives were brought on record, remained absent and did not filed any objections and were placed exparte. The 2^nd respondentInsurance Company by filing its statement of objections, contended that, the claim made by the claimant was false, frivolous and vexatious and contrary to law and evidence on record. It was further contended that the accident had not occurred due to rash and negligent driving of the driver of offending vehicle bearing registration No.AP-21/X-9141, but on the negligent driving of the claimant himself. The respondent-Insurance company further denied the accident, age,

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occupation and income of the claimant and the injury sustained by him as well as the amount spent for medical treatment.

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

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In order to prove his claim, the claimant examined two witnesses, himself as P.W.1 and doctor who treated him as PW.2 and got exhibited 61 documents namely Exs.P1 to Ex.P.61. The respondent-Insurance Company neither examined any witness nor marked any documents on its favour.

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The Claims Tribunal, by the impugned judgment, inter alia, held that claimant was entitled to a compensation of Rs.1,65,200/- along with interest at the rate of 6% per annum for the injuries sustained by him in the accident. The claimant being aggrieved by the quantum of

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compensation awarded by the Tribunal has filed the subject miscellaneous first appeal seeking enhancement of compensation.

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I have heard learned counsel Sri Anand R.Kolli appearing for the appellant and learned counsel Sri N.R.Kuppelur appearing for respondent-Insurance Company.

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Learned counsel would contend that the Tribunal has grossly erred in taking disability of the claimant at 10% which had to be taken at 16% in the light of fact that the disability to the several part of the body put together was assed at 50% by the doctor. Hence, permanent disability to the whole body would be 16%. He would further contend that though there was no proof of income produced, the Tribunal has taken Rs.3,000/- is contrary to the notional income that

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is applied for an accident of year 2008 and has assessed the compensation which is on the lower side for pain and suffering.

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On the other hand, learned counsel for

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the respondent-Insurance Company would

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support the award of the Tribunal and would contend that there is no warrant of interference and what has been granted by the Tribunal is on the higher side.

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I have considered the submissions made by the learned counsel for the parties and perused the record.

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Admittedly, though the claimant has contended that he was earning Rs.5,000/- per month, but neither produced any document nor led any evidence to prove the same. Therefore, the notional income has to be fixed as per the guidelines issued by the High Court Legal Services Committee. Since the accident has taken place in the year 2008, the notional income as per the Chart would be Rs.4,250/- per month. The income of the claimant is taken at Rs.4,250/per month and the disability is assessed at

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Rs.16% and taking into account the age of the deceased which was 40 years at the time of accident, multiplier of “15” has to be adopted. Hence, the claimant is entitled to Rs.1,22,400/(Rs.4,250 X 12 X 15 X 16/100) on account of loss of future income.

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Since, the claimant has suffered one major fracture and a minor fracture, in terms of the above said Chart he would be entitled to compensation at Rs.25,000/- and Rs.20,000/respectively which would assessed at Rs.45,000/on the head of pain and suffering. Towards loss of amenities, again in terms of the Chart for major and minor fractures is awarded Rs.30,000/- and 15,000/- respectively and rest of the findings recorded by the Tribunal on the other heads are sustained. Thus, the claimant is entitled to compensation in the following manner.

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Sl. No.	Particulars	Amount in Rs.
1.	Loss of future income	1,22,400/-
2.	Loss of pain and suffering	45,000/-

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3. Loss of amenities	45,000/-
4. Towards Medical Expenses.	81,800/-
5. Towards conveyance	5,000/-
6. Towards attendant charges	3,000/-
7. Towards diet charges	5,000/-
TOTAL	3,07,200/-
Compensation awarded by the Tribunal	1,65,200/-
Enhancement by this Court	1,42,000/-

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Hence, the claimant is entitled to

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receive total compensation of Rs.3,07,200/- as against Rs.1,65,200/- awarded by the Tribunal. 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 payment is made. To the aforesaid extent, the judgment of the Claims Tribunal is modified.

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Accordingly, the appeal is allowed in part.

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Sd/-

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JUDGE

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EM/-

H C Kudlayya Basayya Hiremath v. Laxman G. S/O G. Iranna

Case brief

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H C Kudlayya Basayya Hiremath v. Laxman G. S/O G. Iranna

Case brief

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