Partly allowed

S v. Karthik v Gowda Ganesha Kempa

Karnataka HC5 Aug 2021MFA/9243/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka, in this Motor Accidents Appeal, enhanced the compensation awarded to the claimant by allowing a portion of the loss of earning capacity based on future prospects and increasing amounts for pain and suffering and loss of amenities.

What did the court decide?

Compensation enhanced to Rs. 22,64,000/-; Rs. 4,38,800/- carries interest at 6%; judgment of the Tribunal modified.

S v Karthik Vs Gowda Ganesha Kempa — 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 5TH DAY OF AUGUST, 2021

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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M.F.A. NO.9243 OF 2017 (MV-I)

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BETWEEN:

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S V KARTHIK, AGED ABOUT 30 YEARS, S/O S.P.VIJAYKUMAR, R/AT D.NO.1344, GROUND FLOOR, 8TH CROSS, SAHUKAR CHENNAIAH ROAD, JANATHANAGAR, MYSURU CITY-570 009. ... APPELLANT

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(BY SRI NALARAJU, ADVOCATE)

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AND:

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GOWDA GANESHA KEMPA

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AGED ABOUT 41 YEARS,

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S/O KEMPEGOWDA,

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R/AT KAIGONAHALLI VILLAGE,

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S.B.HALLI, K.R.PETE TALUK,

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MANDYA DISTRICT-571 426.

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C.MUNIRAJU

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S/O CHIKKAMUNIYAPPA,

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R/AT VINAYAKANAGAR, V.V.EXTENSION, HOSAKOTE TALUK, BENGALURU-562 114.

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UNITED INDIA INSURANCE CO. LTD., NO.2912, SARASWATHIPURAM, MYSURU-570 009 REP BY IT'S MANAGER. ... RESPONDENTS

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(BY SRI P.B.RAJU, ADVOCATE FOR R3, R1 - SERVED, R2 - DISPENSED WITH)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15/06/2017, PASSED IN MVC NO.596/2014, ON THE FILE OF THE JUDGE, PRINCIPAL COURT OF SMALL CAUSES, MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. COMING ON FOR ORDERS, THIS DAY, HEMANT CHANDANGOUDAR J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) is filed against the judgment dated 15.06.2017 passed in MVC No.596/2014 by the Judge, Principal Court of Small Causes, MACT, Mysuru (hereinafter referred to as 'the Tribunal' for short).

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Facts leading to filing of this appeal briefly stated are that on 20.12.2012 at about 8.45 p.m., when the claimant - Karthik was proceeding on his motorbike near Government High School on K.R. Pet - Santhe Bachalalli road, at that time, a car driven by its driver in a rash and negligent manner dashed against the motorcycle of the claimant. As a result of the aforesaid accident, the claimant fell down and sustained multiple injuries.

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The claimant thereupon filed a petition under

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Section 166 of the Act inter alia on the ground that the claimant was admitted to Cauvery Hospital, Mysuru, wherein he took treatment as an inpatient and spent huge amount towards his medical expenses. It was also claimed that the claimant was earning Rs.10,000/- per month being an auto driver and due to the impact of the accident, he is unable to carry on with the work as before. It was also pleaded that the accident took place on account of rash and negligent driving of the driver of the car. The claimant claimed compensation to the tune of Rs.37,00,000/- along with interest.

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Despite service of notice, respondent No.2 remained absent and was placed exparte. Though respondent No.1 appeared through his counsel, but has not filed any objections. The respondent No.3 appeared through their counsel and filed written statement. The respondent No.3 inter alia pleaded that the claim petition is not maintainable. It was also pleaded that liability of the Insurance Company to pay the compensation, if any, is subject to the terms and

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conditions of the policy. It was also pleaded that the driver of the car did not possess valid and effective driving license at the time of the accident. It was also stated that the compensation claimed by the claimant is highly excessive, speculative and exorbitant.

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On the basis of the pleadings of the parties, the Tribunal framed the issues and thereafter recorded the evidence. The claimant, in order to prove his case, examined himself as PW-1, Dr.V Shivananda and Dr.H S Manjunath Bharagava as PWs.2 and 3 and exhibited documents namely Ex.P1 to Ex.P17(a). The respondents neither examined any witnesses, however, respondent No.3 exhibited the insurance policy as Ex.R1.

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The Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the car by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.18,25,200/- along with interest at the rate of 6% p.a.

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Being aggrieved, this appeal is filed by the claimant seeking enhancement of the amount of compensation.

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Learned counsel for the claimant submitted that the Tribunal has grossly erred in assessing the income of the claimant as Rs.9,000/- per month instead of Rs.10,000/p.m. The Tribunal ought to have assessed the functional disability at 100% having the fact that the claimant was driver by avocation. It is further submitted that the Tribunal has erred in not making an addition to the tune of 40% to the income of the claimant on account of future prospects in view of the law laid down by the Hon'ble Supreme Court in PAPPU DEO YADAV V. NARESH KUMAR AIR 2020 SC 4424 . It is also urged that the amount of compensation awarded under other heads are on the lower side and deserve to be enhanced suitably.

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On the other hand, learned counsel for the Insurance Company submitted that no evidence has been adduced by the claimants to prove the income of the claimant before the Tribunal and that the Tribunal has rightly taken the income of the deceased notionally at Rs.9,000/-

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per month. It is further submitted that the amount of compensation awarded by the Tribunal under all the heads is just and proper and does not call for any interference.

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

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The only question which arises for our

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consideration in this appeal is with regard to the quantum of compensation.

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Admittedly, the claimant has not produced any evidence with regard to his income. The Tribunal considering the fact that the claimant is a driver by profession has rightly assessed the income of the claimant at Rs.9,000/- p.m.

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PW2 - Dr.V Shivananda, Neuro Surgeon has

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stated that the claimant has suffered 25 to 30% of functional disability because of head injury, but he has not stated anything about loss of memory or intellectual disability based on the report of clinical psychologist. In the said circumstances, the Tribunal has rightly assessed the

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functional disability affecting the earning capacity of the claimant due to head injury at 20%.

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PW3 - Dr.H S Manjunath Bhargava has stated that on examination he found fracture femur malunited, fractured both bones leg mal-united when compared to left lower limb he found difference of limb length at 4 cms. In the cross-examination, he has stated that the claimant has suffered functional disability to an extent of 30%. Hence, the Tribunal has rightly assessed the functional disability of the claimant at 50%.

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The injuries sustained by the claimant in the accident have definitely affected his functional capacity, therefore, 40% of income is to be added to the income of the claimant on account of future prospects in view of the law laid down by the Supreme Court in the case of PAPPU DEO YADAV V. NARESH KUMAR AIR 2020 SC 4424. Thus, the income of the claimant comes to Rs.12,600/- per month. Therefore, the claimant is entitled to Rs.13,60,800/(Rs.12,600 x 12x 18 x 40%) under the head 'loss of earning capacity'.

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Having regard to the injuries sustained by the claimant, it would be appropriate to enhance the compensation under the head pain and suffering to Rs.75,000/- and also under the head loss of amenities to Rs.75,000/-.

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The amount of compensation awarded under other heads is maintained.

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Thus, the claimant is held entitled to a total compensation of 22,64,000/-. The enhanced compensation Rs.4,38,800/- shall carry interest at the rate of 6% from the date of filing of the petition till the realization of the amount of compensation. To the aforesaid extent, the judgment dated 15.6.2017 in MVC No.596/2014 passed by the Judge, Principal Court of Small Causes, MACT, Mysuru is modified.

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Accordingly, the appeal is disposed of.

Sd/JUDGE

Sd/-

JUDGE

bkm

S v. Karthik v Gowda Ganesha Kempa

Case brief

What is this about?

What did the court decide?

S v. Karthik v Gowda Ganesha Kempa

Case brief

What is this about?

What did the court decide?

What the court decided

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