Partly allowed

Sri Neela Kantesh @ Anil Kumar v. B Chandra Shekar

Karnataka HC1 Jun 2021MFA/4465/2013

Case brief

AI extract

What is this about?

The single judge modified the motor vehicle accident compensation award, enhancing the total quantum from Rs.9,19,800 to Rs.11,09,200 by correcting the disability percentage to 40%, adjusting the multiplier to 16, and increasing amounts for conveyance, amenities, future discomfort, losing time, and future medical expenses.

What did the court decide?

Compensation enhanced to Rs.11,09,200/- with interest at 6% per annum on Rs.10,59,200 from the date of the original petition till deposit.

Sri Neela Kantesh @ Anil Kumar Vs B Chandra Shekar — 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 1^ST 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.4465/2013 (MV)

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BETWEEN:

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SRI NEELA KANTESH @ ANIL KUMAR, S/O M.K.T. LINGAM, AGED ABOUT 39 YEARS, NEAR S V R KALYANA MANTAPA, BENGALURU TOWN (TQ), KOLAR DISTRICT-563101. … APPELLANT

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(BY SRI N.M. PRUTHVIRAJ, ADVOCATE)

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AND:

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B.CHANDRA SHEKAR, S/O BASAPPA, NO.40. J.C.LAYOUT, RAJARAJESHWARI TEMPLE STREET, DEVA SANDRA, K.R.PURAM, BENGALURU-67.

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THE NEW INDIA ASSURANCE CO. LTD., NO.67/1, 1^ST FLOOR, REDDY COMPLEX, WHITE FIELD ROAD, MAHADEVAPURA, BENGALURU-48. ... RESPONDENTS

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(BY SRI A.M. VENKATESH, ADVOCATE FOR R-2; NOTICE TO R-1 IS DISPENSED WITH VIDE ORDER DATED 09.08.2016)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 08.01.2013

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PASSED IN MVC.NO.3420/2004 ON THE FILE OF THE 14^TH ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU, 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 this matter is listed for admission today, with the consent of both the learned counsel it is taken up for final disposal.

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This appeal is filed challenging the judgment and award dated 08.01.2013 passed in M.V.C.No.3420/2004 on the file of XIV Additional Judge and MACT, Bengaluru (SCCH-10) (‘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 the confusion and for the convenience of the Court.

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The factual matrix of the case is that on 09.08.2003 at about 10.30 p.m. Bangalore side Malur Zigzag, when the

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petitioner was coming near Malur Zigzag on Kawasaki Caliber (engine No.DDMBKB 25865 and Chassis No.DDFBKB 29403) vehicle, at that time one heavy goods vehicle bearing registration No.KA-16-3339 owned by respondent No.1 and insured with respondent No.2 was driven by its driver in a rash and negligent manner and as a result the petitioner had sustained grievous multiple injuries and he was an inpatient for a period of 197 days and he was subjected to several surgeries. The petitioner was earning Rs.8,000/- per month and due to the accident, he is unable to do the work, which he was doing.

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The claim petition was opposed by the Insurance Company by filing a detailed objection statement denying the income and nature of injuries sustained and contended that the liability is subject to the terms and conditions of the policy. The claimant in support of his claim examined himself as P.W.1 and examined two doctors as P.W.2 and P.W.3 and got marked the documents at Exs.P.1 to 18. On the other hand, the respondents did not lead any evidence but got marked the documents at Exs.R.1 and 2. The Tribunal after considering both oral and documentary evidence placed on record,

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particularly the evidence of P.W.2 and P.W.3 doctors, assessed the disability of 30% as against the permanent disability of 40% to whole body as deposed by P.W.2 and P.W.3. The Tribunal took the income of Rs.4,000/- per month and awarded the compensation of Rs.9,19,800/-. Hence, the present appeal is filed before this Court.

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The learned counsel for the appellant in the appeal would vehemently contend that the Tribunal has committed an error in not awarded just and reasonable compensation under the head conveyance and nourishment, loss of amenities and future discomfort and loss of earning during the laid up period. The Tribunal failed to take note of the fact that the petitioner was an inpatient for a period of 197 days. The learned counsel would contend that the disability considered by the Tribunal to the extent of 30% is erroneous and the same is against the medical evidence. The learned counsel would contend that the future medical expenses deposed by the doctor is to the tune of Rs.10,00,000/-, but the Tribunal has awarded only an amount of Rs.1,50,000/- and hence it requires interference of this Court.

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Per contra, the learned counsel for respondent No.2 would vehemently contend that the Tribunal while awarding compensation has considered all the heads. The learned counsel would contend that earlier the Tribunal had granted compensation of Rs.7,44,400/- and the same was challenged in M.F.A.No.1769/2007 along with M.F.A.No.10343/2007 and this Court set aside the earlier award and remitted back the matter to the Tribunal. After remitting of the matter, reasonable compensation has been awarded to the tune of Rs.9,19,800/and hence it does not require any interference of this Court.

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Having heard the arguments of the learned counsel

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for the appellant and the learned counsel for respondent No.2, the point that arise for the consideration of this Court is:

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

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Having heard the respective learned counsel and also

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on perusal of the records, particularly the nature of injuries sustained by the claimant, he has suffered grievous injuries of fracture of intracondylar fracture of right tibia, head injury with

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frontal benecontusion, fracture of oblique head of femur right hip portion and other injuries. It is not in dispute that in terms of Ex.P.14 case sheet, the claimant was an inpatient for a period of 197 days. The doctor assessed the disability of 40% to the whole body considering the nature of injuries. However, the Tribunal considering the material on record, has rightly awarded an amount of Rs.1,00,000/- under the head pain and suffering. Hence, I do not find any reason to interfere with the same.

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The Tribunal awarded an amount of Rs.3,50,000/under the head medical expenses based on the documents. Hence, I do not find any reason to interfere in respect of the amount awarded under medical expenses.

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It is noticed by this Court that the Tribunal has committed an error in not awarding just and reasonable compensation under the head conveyance and nourishment. Taking note of the fact that the claimant was an inpatient for a period of 197 days, an amount of Rs.60,000/- is awarded as against Rs.20,000/under the head conveyance and nourishment and other incidental expenses.

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The Tribunal has committed an error in awarding only an amount of Rs.30,000/- under the head loss of amenities and future discomfort when the injured was aged about 31 years as on the date of the accident and he has to lead his rest of his life with 40% disability. Hence, under the head loss of amenities and future discomfort, an amount of Rs.60,000/- is awarded as against Rs.30,000/-.

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The Tribunal awarded an amount of Rs.25,000/under the head loss of earning during the period of treatment. Having considered the fact that the claimant was an inpatient for a period of 197 days and also considering the nature of fracture which he has sustained, it requires minimum eight months for uniting of the fracture and rest. Hence, the same is enhanced to Rs.32,000/- (Rs.4,000/- x 8) under the head loss of earning during laid up period.

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Insofar as future earning capacity due to disability is concerned, the Tribunal has taken Rs.4,000/- per month as loss of income and though the document of letter is produced before the Tribunal regarding his income, the same has not been proved by examining the author of the said letter. Hence, the

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Tribunal has rightly taken the income as Rs.4,000/- per month. The accident is of the year 2003 and hence it does not require any enhancement with regard to the income is concerned. However, the Tribunal has committed an error in taking the disability of 30% as against the evidence of doctors P.W.2 and P.W.3, who have deposed the disability of 40% to the whole body and the Tribunal has erroneously taken the multiplier of ‘17’. When the claimant was aged about 31 years 4 months as per Ex.R.1 driving licence as on the date of the accident, the relevant multiplier applicable is ‘16’. Hence, re-visiting the calculation under the head loss of future earning capacity due to disability, it comes to Rs.3,07,200/- (Rs.4,000/- x 12 x 40% x 16).

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The Tribunal awarded an amount of Rs.1,50,000/under the head future medical expenses. Having considered the medical evidence of the doctor P.W.2, he says that Rs.2,50,000/- is required for future medical expenses and the doctor P.W.3 who has been subsequently examined says that Rs.7,00,000/- is required and in total it comes to Rs.10,00,000/and it is only an estimation and no substantial evidence is placed

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before the Court. However, it requires little interference of this Court to enhance the compensation under the head future medical expenses taking note of the nature of injuries and also the treatment provided to the claimant and also requirement of future treatment, hence it is enhanced to Rs.2,00,000/-.

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In all, the claimant is entitled to a compensation of Rs.11,09,200/- as against Rs.9,19,800/-.

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In view of the discussions 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 impugned judgment and award of the Tribunal dated 08.01.2013 passed in M.V.C.No.3420/2004 is modified granting compensation of Rs.11,09,200/- as against Rs.9,19,800/- with interest at 6% per annum on Rs.10,59,200/(minus Rs.50,000/awarded towards future medical expenses) from the date of petition till deposit.

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

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(iv) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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Sri Neela Kantesh @ Anil Kumar v. B Chandra Shekar

Case brief

What is this about?

What did the court decide?

Sri Neela Kantesh @ Anil Kumar v. B Chandra Shekar

Case brief

What is this about?

What did the court decide?

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