Partly allowed

Mr Kaveri v. Mr Anand Shetty

Karnataka HC18 Jun 2021MFA/2194/2013

Case brief

AI extract

What is this about?

This court disposed of a filing challenging the compensation awarded in a motor vehicle accident case. The court held that the Tribunal erred in assessing disability at 4% and allowed an enhancement in compensation heads including loss of future income, pain and sufferings, and incidental charges, modifying the total award to Rs. 3,13,400/-.

What did the court decide?

Modified the Tribunal's award granting total compensation of Rs. 3,13,400/- with 6% interest per annum; directed respondent to deposit the amount.

Mr Kaveri Vs Mr Anand Shetty — Medical Negligence | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF JUNE, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.2194/2013 (MV)

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BETWEEN:

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MR. KAVERI S/O RAJAPPA AGED ABOUT 21 YEARS R/AT NEAR 10^TH CROSS KEMMANNU GUNDI ARASIKERE, HASSAN DISTRICT

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… APPELLANT

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(BY SRI GURUPRASAD B.R., ADVOCATE)

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AND:

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1 . MR. ANAND SHETTY S/O LATE THYAMPANNA SHETTY AGED ABOUT 61 YERS R/AT ADYAR, NAVEEN MOTORS MANGALURU TALUK

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2 . THE UNITED INDIA INSURANCE CO. LTD., DIVISONAL OFFICE POST BOX NO.705, 1^ST FLOOR RAMBHAVAN COMPLEX KODIALBAIL, MANGALURU TALUK REPRESENTED BY ITS MANAGER.

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... RESPONDENTS

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(BY SRI JANARDHAN REDDY, ADVOCATE FOR R2; SERVICE OF NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 25.11.2013;)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.08.2012 PASSED IN MVC.NO.1406/2011 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT, MANGALURU, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. COMING ON FOR ADMISSION THROUGH ‘VIDEO CONFERENCE’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though the matter is listed for admission today, with the consent of the learned counsel for both the parties, it is taken up for final disposal.

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This appeal is filed challenging the judgment and award dated 31.08.2012, passed in M.V.C.No.1406/2011, on the file of the MACT and III Additional Senior Civil Judge, Mangaluru, Dakshina Kannada, (‘the Tribunal’ for short), questioning the quantum of compensation.

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The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.

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The factual matrix of the case is that the claimant met with an accident on 10.02.2011 and immediately, he was taken to the hospital, wherein he was inpatient from 11.02.2011 to 25.03.2011. He had also engaged an attendant by paying an amount of Rs.150/- per day as wages. The claimant, in order to substantiate his case, examined himself as P.W.1 and the doctor as P.W.2 and got marked the documents at Exs.P1 to P19. On the other hand, the Insurance Company has not examined any witness, however, got marked the insurance policy at Ex.R1. The Tribunal, after considering both oral and documentary evidence, allowed the claim petition in part by granting compensation of Rs.1,04,320/-. Being aggrieved by the said award, the present appeal is filed.

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Learned counsel appearing for the appellant would vehemently contend that the Tribunal has committed an error in taking the disability at 4% even though the claimant has suffered the fracture of both the bones of right leg and fracture of ankle joint and on all other heads, the Tribunal has awarded the lesser compensation. Hence, it requires interference of this

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Court. Learned counsel would further contend that the accident is of the year 2011 and hence, the Tribunal ought to have taken the income of the claimant at Rs.3,000/- per month.

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Per contra, learned counsel appearing for the respondent/Insurance Company would submit that in the absence of any documentary proof, the Tribunal has rightly taken the income of the claimant at Rs.3,000/- per month and awarded the compensation on all the heads. Hence, it does not require any interference of this Court.

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Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondentInsurance Company, the points that would arise for the consideration of this Court are:-

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(i) Whether the Tribunal has committed an error in not awarding the just and reasonable compensation and whether it requires interference of this Court ?

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(ii) What order?

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Points No.1 and 2:-

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Having heard the respective counsel and also on perusal of the records, the wound certificate, which is marked at Ex.P5 would clearly indicate that the injured suffered fracture of

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both bones of right leg and that apart, he also suffered ankle fracture. The discharge summary which is marked at Ex.P9 and P10 disclose that he was inpatient for a period of 72 days. The disability certificate is also marked at Ex.P11. The doctor is also examined as P.W.2. In view of the fracture sustained by P.W.1, the Tribunal considered the whole body disability at 4% by taking note of the disability assessed by the doctor to the right lower limb at 10%. If the doctor has not assessed the proper disability, the Tribunal ought to have taken note of the same. When the claimant suffered fracture of both bones of right leg and ankle joint, the Tribunal ought to have taken the disability of the whole body at 10% instead of 4%. Hence, it requires interference of this Court with regard to the disability is concerned.

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It is also important to note that the accident had taken place in the year 2011 and the Tribunal has assessed the income of the claimant at Rs.3,000/- per month. In the absence of any documentary proof, the Tribunal ought to have taken the notational income at Rs.6,500/- per month. If the notional income of the claimant is taken at Rs.6,500/- per month, the disability at 10% and the relevant multiplier as 18, the compensation under the head of ‘loss of future income’ would come to Rs.1,40,400/-.

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Having perused the compensation awarded on other heads, the Tribunal has awarded an amount of Rs.30,000/- on the head of ‘pain and sufferings’. When he has suffered the fractures of both bones of right leg and ankle joint and so also he was an inpatient for a period of 72 days, the Tribunal ought to have awarded an amount of Rs.50,000/- on the head of ‘pain and sufferings’ as against Rs.30,000/-.

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The Tribunal awarded an amount of Rs.9,000/-

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towards ‘medical expenses’ based on the medical records. Hence, it does not require any interference of this Court.

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However, the Tribunal awarded an amount of Rs.14,400/- on the head of ‘incidental expenses’ and an amount of Rs.2,000/- on the head of ‘conveyance charges’, in total an amount of Rs.16,400/-. The discharge summaries marked at Exs.P9 and P10 disclose that he was inpatient for a period of 72 days in the hospital. When he was an inpatient for a period of 72 days in the year 2011, the Tribunal ought to have awarded an amount of Rs.50,000/- on the head of ‘incidental charges’ including the food and nourishment. Hence, an amount of Rs.50,000/- is awarded on the head of ‘incidental charges including food and nourishment’ as against Rs.16,400/-.

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Insofar as the ‘loss of income during laid up period’ is concerned, the claimant was in the hospital for a period of 72 days and he suffered fracture to both bones of right leg and fracture to ankle joint. When such being the case, the Tribunal ought to have taken the loss of income for a period of 6 months at the rate of Rs.6,500/- per month, which would come to Rs.39,000/-.

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The Tribunal awarded an amount of Rs.5,000/- on

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the head of ‘loss of amenities’. The claimant was aged about 19 years at the time of the accident and he has to lead rest of his life with the said disability. Hence, the compensation awarded on the head of ‘loss of amenities’ requires to be enhanced to Rs.20,000/- as against Rs.5,000/-. Accordingly, in all, the claimant is entitled for a compensation of an amount of Rs.3,13,400/- as against Rs.1,04,320/- with interest at the rate of 6% per annum from the date of petition till realization.

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In view of the discussion made above, I pass the

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following:-

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ORDER

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(i) The appeal is allowed in part.

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(ii) The judgment and award passed by the Tribunal is modified by granting compensation of Rs.3,13,400/- with interest at the rate of 6% per annum from the date of petition till realization as against Rs.1,04,320/-.

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(iii) Respondent-Insurance Company is directed to deposit the amount within 6 weeks’ from today.

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(iv) Registry to transmit the Trial Court Records forthwith.

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Sd/JUDGE

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PYR

Mr Kaveri v. Mr Anand Shetty

Case brief

What is this about?

What did the court decide?

Mr Kaveri v. Mr Anand Shetty

Case brief

What is this about?

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