Partly allowed

Sri Prabhu J v. Sri N v Ramakrishna

Karnataka HC7 Dec 2021MFA/123/2015

Case brief

AI extract

What is this about?

The High Court allowed the motor accident appeal in part, enhancing the total compensation from Rs. 1,79,000 to Rs. 2,33,200. While affirming loss of future earning and medical expenses, the Court increased pain and suffering, awarded new heads for future medical expenses and loss of amenities, and enhanced attendant charges.

What did the court decide?

Compensation enhanced to Rs. 2,33,200 with 9% interest on enhanced amount; future medical expenses without interest.

Sri Prabhu J Vs Sri N v Ramakrishna — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF DECEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE P.N.DESAI

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MFA No.123 OF 2015 (MV)

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BETWEEN:

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SRI. PRABHU J, S/O. SRI. JAGANATH, AGED ABOUT 46 YEARS, OCCUPATION: BAR BENDING, R/AT NO.50/1, 13^TH 'A' CROSS, PADARAYANAPURA, BENGALURU SOUTH, GOVERNMENT ELECRIC FACTOR, BENGALURU-560 026.

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...APPELLANT

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(BY SRI. SURESH M. LATUR, ADVOCATE)

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AND:

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SRI. N.V. RAMAKRISHNA, NO.279, NARASIPURA LAYOUT, VIDYARANYAPURA MAIN ROAD, BENGALURU-560 097.

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THE MANAGER, NATIONAL INSURANCE COMPANY LTD, SUBRAM COMPLEX, M.G. ROAD, BENGALURU-560 001.

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... RESPONDENTS (BY SRI. VENKATESH R. BHAGAT, ADVOCATE FOR R2; NOTICE TO R1 D/W)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.11.2014 PASSED IN MVC.NO.1629/2013 ON THE FILE OF THE 16^TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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Though the matter is posted for admission, with the consent of both the parties, matter is taken up for final disposal.

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Aggrieved by the judgment and award dated 14.11.2014 passed in MVC No.1629/2013 by the Member, Motor Vehicles Accident Claims Tribunal, XVI Additional Judge, Court of Small Causes, Bengaluru.(for short ‘the Tribunal’), the claimant has preferred this appeal.

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The brief facts of the case are as follows:

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That on 28.07.2012 at about 9.00 pm, the

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petitioner was walking on the left side of the road on JJ Nagara Junction, Binny Mill Road, opposite to Hotel Sandarshini. At that time, a motorcycle bearing registration No.KA-04-HF-461 moving towards Mysore Road came in high speed, in rash and negligent manner and dashed against the petitioner as a result of which, petitioner sustained grievous injuries. He took treatment at Victoria Hospital and subsequently, he was shifted to ESI Hospital. Hence, he preferred MVC No.1629/2013 before the Tribunal claiming compensation for the loss.

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Respondent No.1 is the rider-cum-owner of the offending vehicle and respondent No.2 is the Insurance Company with whom the offending motorcycle is insured.

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On service of summons, respondent No.1 did not appear before the tribunal. Hence he was placed

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ex-parte. Respondent No.2 appeared through its counsel, filed the written statement denying the liability. Respondent No.2 contended that compensation claimed is exorbitant. The liability is subject to terms and conditions of the policy. The rider of the offending vehicle did not have valid and effective driving licence as on the date of the accident. It was pleaded that the owner of the offending vehicle has violated the terms and conditions of the insurance policy. It was further pleaded that the claimant has falsely implicated the offending vehicle in the accident in order to get compensation. Hence, he sought for dismissal of the petition.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The petitioner, to prove his case has examined himself as PW-1 and Dr. S. Ramachandra, as PW.3 and another witness as PW.2 - Medical

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technician and got marked documents from Exs.P1 to P21. The respondents did not examine any witness nor got marked any documents.

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Based on the pleadings and evidence let in, the Tribunal has awarded compensation of Rs.1,79,000/- to the petitioner. Not satisfied by the same, petitioner has preferred the above appeal.

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Heard the learned counsel Sri.Suresh M Lathur for petitioner and Sri.Venkatesh R Bhagat, learned counsel for insurance company and perused the appeal memo, trial Court records and also perused both the oral and documentary evidence placed on record.

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The contention of the petitioner is that the compensation awarded under the various heads is on the lower side and prays for enhancement of the same. The respondents justified the judgment and award of the Tribunal and has sought for dismissal of the appeal.

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The factum of accident, negligence of the offending bike rider and the petitioner sustaining the injuries is not in dispute. The dispute is only in respect of the quantum of compensation awarded.

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As per the findings of the Tribunal, the petitioner suffered injuries to right lower limb and the Doctor has opined that he has sustained 34.9% disability to the particular limb. The learned Counsel Sri. Suresh M. Latur argued that the Tribunal has erred in awarding a sum of Rs.25,000/- towards 'Pain and Sufferings' in view of the nature of fracture sustained by the petitioner. The Tribunal also awarded very minimum amount for medical expenses and also attendant charges. Towards loss of future income, the Tribunal has not properly considered the disability and ought to have awarded more. Regarding 'loss of amenities' and future medical expenses, no amount has been awarded. In view of the evidence placed on record, the appellant

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is entitled for enhancement of compensation. Hence, prayed to enhance the compensation.

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On the other hand, Sri. Venkatesh R. Bhagat,

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learned counsel for the Insurance Company supported the judgment and contended that Tribunal after taking into consideration of all the aspects, has awarded the compensation which is just and fair and needs no interference. Hence, he sought for dismissal of the appeal.

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It is not in dispute that the accident has occurred due to rash and negligent riding of the offending vehicle by its rider.

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As per the wound certificate - Ex.P9, the petitioner has suffered fracture of right femur and other simple injuries. It is also evident that he was admitted to hospital on 29.07.2012 and discharged on 04.08.2012. The wound certificate at Ex.P9, discharge

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summary at Ex.P10 indicates that he has taken treatment for the said injuries. He has also examined by Dr.S. Ramachandra - Ex.PW.3. The fracture is inter condylar fracture and Hoffa's Lateral condyle of right femur and after discharge he was in follow up treatment. Therefore, considering the nature of injury sustained by the petitioner, in my considered view, the petitioner is entitled for enhancement under the head 'Pain and suffering', to a sum of Rs.40,000/- instead of Rs.25,000/- awarded by the Tribunal.

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Learned counsel for the appellant further contended that the doctor has stated that there is disability to the extent of 34.9% and the whole body disability at 17.45%. Therefore, the Tribunal ought to have taken the whole body disability at 17.45% but wrongly taken at 10%. I have perused the evidence of doctor -PW.3. In his evidence, he has mentioned about the diagnosis operation conducted and he has

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mentioned as to how the disability is assessed. He has also stated that the claimant was advised to undergo

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one more operation to remove the implants. In the cross examination it is stated that he is only the treated doctor. On looking into the medical records, he has assessed the disability. He also admitted that fractures are re-united and he has clearly admitted that disability is not a functional disability. It is stated that the claimant was doing a bar bending work, the doctor no where has stated that he cannot do bar bending work, the doctor has stated that it may be difficult for him to do physical work. Therefore, looking into the nature of injury and in view of the clear admission of the doctor, in my considered view, whole body disability at 10% taken by the Tribunal is proper and appropriate. The Tribunal has rightly taken the monthly income of Rs.7,000/- even in the absence of material produced by the petitioner, which needs no interference. The Tribunal has also taken into consideration the age of the

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petitioner and applied multiplier at 13 and has rightly come to a conclusion that loss of future income at Rs.1,09,000/-, which needs no interference. The Tribunal has not awarded any amount for future medical expenses, though doctor has stated that the patient has to undergo another operation for removal of implants. The accident is of the year 2012, so keeping in mind the income that could be incurred during those days, a sum of Rs.15,000/- is awarded for future medical expenses, which shall not carry interest. Regarding medical expenses, even though the petitioner has not produced any documents, the Tribunal has awarded a sum of Rs.10,000/- which is reasonable. Regarding nourishment and attendant charges, a sum of Rs.15,000/- is awarded as against Rs.10,000/- awarded by the Tribunal. The petitioner has sustained fracture to femur, though the doctor has stated that it is re-united and there is no functional disability, the inconvenience and unhappiness

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he has to suffer throughout his life. Therefore, for loss

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of amenities a sum of Rs.20,000/- is awarded.

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Thus, the claimant is entitled to the following

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compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and suffering	25,000	40,000
Medical expenses	10,000	10,000
Nourishment and attendant charges	10,000	15,000
Loss of amenities		20,000
Loss of income during treatment period	24,000	24,000
Loss of future earning	1,09,200	1,09,200
Future medical expenses		15,000
Total	1,78,200	2,33,200

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Thus, petitioner would be entitled to a total compensation of Rs.2,33,200/- as against Rs.1,78,200/awarded by the Tribunal.

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Hence, the following:

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ORDER

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i) The appeal is allowed-in-part.

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ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.2,33,200 (Rupees Two Lakhs Thirty Three Thousand Two Hundred only) as against Rs. 1,79,000/- with interest at the rate of 9% per annum on the enhanced compensation amount from the date of the claim petition till its realization. The future medical expenses do not carry any interest.

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iii) The portion of the order of the Tribunal inasmuch as liability and disbursement remains intact.

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iv) The respondent No.2 shall make good of the difference amount within a period of six weeks from the date of receipt of the certified copy of the judgment and order.

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Costs made easy.

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Sd/JUDGE

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Sri Prabhu J v. Sri N v Ramakrishna

Case brief

What is this about?

What did the court decide?

Sri Prabhu J v. Sri N v Ramakrishna

Case brief

What is this about?

What did the court decide?

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