Partly allowed

Kavitha Nayak v. Prabhakar Kulal

Karnataka HC17 Jun 2021MFA/3169/2010

Case brief

AI extract

What is this about?

Regarding the quantum of compensation, the High Court of Karnataka enhanced the award from Rs. 1,11,200/- to Rs. 1,45,186/- to account for correct income calculation and better non-pecuniary loss, while also redirecting liability from the vehicle owner to the Insurance Company based on the LMV status.

What did the court decide?

The appeal is allowed in part; compensation enhanced to Rs. 1,45,186/- payable by the Insurance Company within six weeks.

Kavitha Nayak Vs Prabhakar Kulal — Insurance | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 17^TH DAY OF JUNE, 2021

¶4

BEFORE

¶5

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

¶6

M.F.A.NO.3169/2010 (MV)

¶7

BETWEEN:

¶8

KAVITHA NAYAK D/O LAXMAN NAYAK AGED ABOUT 25 YEARS R/O MONIOLAL, BALKUR VILLAGE KUNDAPURA TALUK UDUPI DISTRICT

¶9

… APPELLANT

¶10

(BY SRI MAHESH KIRAN SHETTY, ADVOCATE)

¶11

AND:

¶12

1 . PRABHAKAR KULAL S/O ANNAPPA KULAL R/O HAKULMANE SIDDAPURA VILLAGE AND POST KUNDAPURA TALUK.

¶13

2 . THE NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE SHANKAR BUILDING MOSQUE ROAD, UDUPI.

¶14

3 . MISS. SOHINI MUZUMDAR 601, AJAY CO-OP. NSG SOCIETY LTD SECTOR NO.1, AIROLI

¶15

¶16

THANNE DISTRICT MAHARASTHRA STATE.

¶17

4 . SRI T.P. ALLAN AGE: MAJOR S/O T.P.PETER R/O HANGLUR VILLAGE & POST KUNDAPURA TALUK UDUPI DISTRICT.

¶18

… RESPONDENTS

¶19

(BY SRI S.S.HAVERI AND SRI N.S.MALLIKARJUN, ADVOCATES FOR R1; SRI B.C.SEETHARAMA RAO, ADVOCATE FOR R2; R4-IS SERVED; NOTICE TO R3 IS DISPENSED WITH VIDE ORDER DATED 26.05.2021)

¶20

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.10.2009 PASSED IN MVC.NO.851/2004 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶21

THIS MFA COMING ON FOR ADMISSION THROUGH ‘VIDEO CONFERENCE’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶22

J U D G M E N T

¶23

Though the appeal is listed for admission, with the consent

¶24

of learned counsel for both the parties, the appeal is taken up for final disposal.

¶25

This appeal is filed challenging the judgment and award passed in M.V.C.No.851/2004 dated 12.10.2009 on the file of

¶26

¶27

the Fast Track and Motor Vehicle Accidents Claims Tribunal at Kundapura questioning the quantum of compensation and also the liability.

¶28

The factual matrix of the case is that the claimant, who is aged about 19 years met with an accident on 17.07.2004 at about 6.45 p.m. As a result, she has sustained fracture and admitted to the hospital and took treatment and she has suffered permanent disability.

¶29

The respondent-Insurance Company appeared and contested the matter contending that the driver was not having the transport endorsement to drive the vehicle and he was having only LMV license and hence, the Insurance Company is not liable to pay the compensation.

¶30

The claimant, in order to substantiate her case, examined herself as P.W.1 and also examined the Doctor as P.W.2 and got marked the documents Exs.P1 to P48. On the other hand, the respondent examined two witnesses as R.W.1 and R.W.2 and got marked the documents as Exs.R1 to R9.

¶31

¶32

The Tribunal, after considering both oral and

¶33

documentary evidence placed on record, allowed the claim petition granting compensation of Rs.1,11,200/- with interest at 6% per annum and fastened the liability on the owner of the vehicle. Hence, the present appeal is filed by the claimant.

¶34

The learned counsel appearing for the claimant would vehemently contend that the claimant has suffered fracture of distal humerus and x-ray also discloses comminuted distal T-Y distal humerus fracture and suffered grievous injuries and Tribunal committed an error in awarding meager compensation on different heads and also committed an error in taking the income of the claimant at Rs.2,000/- per month and

¶35

hence, it requires interference of this Court. The counsel would also vehemently contend that the vehicle involved in the accident is a LMV and in view of the judgment in Mukund Dewangan’s case, the liability is to be fastened on the Insurance Company.

¶36

Per contra, the learned counsel for the respondentInsurance Company would submit that the accident has taken

¶37

¶38

place in the year 2004 and hence, the Tribunal has rightly taken the income of the claimant as Rs.2,000/- per month and the Tribunal also awarded just and reasonable compensation on all the heads. Hence, it does not require any interference of this Court. However, the learned counsel for the respondentInsurance Company does not dispute the fact that the vehicle involved in the accident is a LMV vehicle and in view of the judgment of the Apex Court in Mukund Dewangan’s case, the

¶39

liability has to be fastened on the Insurance Company.

¶40

Having heard the respective counsel and also on

¶41

perusal of the records, the points that arise for consideration of this Court are:

¶42

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

¶43

(ii) Whether the Tribunal has committed an error in fastening the liability on the owner instead of the Insurance Company?

¶44

(iii) What order?

¶45

¶46

Point No.(i)

¶47

Having heard the respective counsel and also on perusal of the records particularly, the wound certificate which is marked as Ex.P5, it discloses that the claimant has suffered fracture. The claimant has also produced medical bills and discharge summary. According to the discharge summary, she was inpatient for a period of 13 days. It is not in dispute that the accident has taken place in the year 2004. When such being the case, the Tribunal ought to have taken the notional income at the rate of Rs.3,000/- per month. However, the Tribunal has committed an error in taking the income of the claimant at Rs.2,000/- per month.

¶48

It is also important to note that accident has taken place and the claimant has sustained a fracture and taking into considering the date of the accident, a sum of Rs.22,000/awarded towards pain and suffering is not meager as contended by the learned counsel for the claimant. Hence, it does not require any interference of this Court.

¶49

¶50

The medical expenses awarded by the Tribunal in a sum of Rs.32,346/- is based on records and it does not require any interference of this Court.

¶51

The Tribunal has awarded Rs.2,250/- on the head of special diet, nourishment and attendant charges. Having taken note of the admission for a period of 13 days, it is appropriate to enhance the same to Rs.10,000/- as against Rs.2,250/-.

¶52

The Tribunal, while awarding compensation towards loss of income during laid up period has taken seven months and awarded Rs.14,000/-. Hence, I do not find any reason to interfere with the same.

¶53

However, the loss of future income has to be calculated by taking the income at Rs.3,000/- per month. The Tribunal considered the disability at 8% to whole body and if the same is taken, the loss of future income works out to Rs.51,840/- (3,000x12x18x8/100).

¶54

The Tribunal awarded a sum of Rs.5,000/- towards loss of amenities. Considering the fact that the claimant has

¶55

¶56

suffered disability at 8% and the claimant is aged about 19 years and she has to lead rest of her life with the said disability, the loss of amenities is enhanced to Rs.15,000/- as against Rs.5,000/-.

¶57

After revisiting compensation on all the heads, the claimant is entitled for compensation of Rs.1,45,186/- as against Rs.1,11,200/- awarded by the Tribunal with interest at 6% per annum.

¶58

Point No.(ii)

¶59

It is not in dispute that the vehicle involved in the accident is a LMV transport vehicle and the driver was not having the LMV driving license. In view of the judgment of the Apex Court in Mukund Dewangan’s case, the Insurance Company is liable to pay the compensation. Hence, the judgment and award of the Tribunal is to be modified with regard to fastening of liability on the Insurance Company, instead of the owner of the vehicle. Hence, I answer point No.(ii) as ‘partly affirmative’.

¶60

¶61

Point No.(iii)

¶62

In view of the discussions made above, I proceed to pass the following:

¶63

ORDER

¶64

(i) The appeal is allowed in part.

¶65

(ii) The judgment and award of the Tribunal passed in M.V.C.No.851/2004 dated 12.10.2009 on the file of the Fast Track and Motor Vehicle Accidents Claims Tribunal at Kundapura is modified granting compensation of Rs.1,45,186/- as against Rs.1,11,200/- with interest at 6% per annum.

¶66

(iii) The Insurance Company is directed to deposit the compensation within six weeks from today.

¶67

(iv) The registry is directed to transmit the TCR to the concerned Tribunal forthwith.

¶68

Sd/JUDGE

¶69

Kavitha Nayak v. Prabhakar Kulal

Case brief

What is this about?

What did the court decide?

Kavitha Nayak v. Prabhakar Kulal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The Legal Manager Vs Sayeed Nayaz

The Legal Manager Vs Rajanna

The Legal Manager Vs Noorullakhan

Sri Ashoka M D Vs D R Krishnamurthy

Mr Mohammed Irfan @ Irfan Vs the National Insurance Co. Ltd.

The Divisional Manager Vs Asha