Partly allowed

Mr. Udaya Kumar Shetty @ Udaya Kumar v. United India Insurance Co. Ltd.

Karnataka HC6 Dec 2021MFA/9449/2015

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part, enhancing the total compensation awarded by the Motor Accident Claims Tribunal from Rs. 1,21,197 to Rs. 1,78,197 for a traffic accident involving a fracture of the femur, modifying heads including loss of income, pain and suffering, and future medical expenses.

What did the court decide?

The total compensation is enhanced to Rs. 1,78,197 with interest at 6% per annum from the date of the claim petition. The respondent must pay the difference within six weeks.

Mr. Udaya Kumar Shetty @ Udaya Kumar Vs United India… — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^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.9449 OF 2015 (MV)

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BETWEEN:

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Mr. Udaya Kumar Shetty @ Udaya Kumar, S/o Late Sunder Shetty, Aged about 44 years, Residing at Sheethal Tower, Ujjodi, Kankanady, Mangaluru Taluk.

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...Appellant

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(By Sri. Guru Prasad B.R, Advocate)

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AND:

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United India Insurance Co. Ltd., 1^st Floor, Rambhavan Complex,

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Kodialbail, Mangaluru Taluk-575 002, Represented by its Manager.

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Mr. Tukaram Sanil, S/o Late Sheena Poojary, Adult, Residing at Baddoli House, Kunjathbail Post, Mangaluru Taluk-575 007.

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... Respondents

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(By Sri. Harini Shivananda, Advocate for R1; Notice to R2 D/w)

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This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 26.08.2015 passed in MVC.No.83/2013 on the file of the I Additional Senior Civil Judge, MACT-VI, Mangalore, D.K., 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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This appeal under Section 173(1) of the Motor

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Vehicles Act, 1988 has been filed by the claimant being aggrieved by the judgment dated 26.08.2015 passed by the Motor Accident Claims Tribunal (in short Tribunal) and Additional Senior Civil Judge, Mangaluru, D.K. (hereinafter referred to as ‘the Tribunal, for short) in MVC No.83/2013, whereby the Tribunal has granted compensation of Rs.1,21,197/- along with interest @ 6% p.a.

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The briefs case of claimant before Tribunal is

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that on 07.06.2012, the petitioner was supplying the

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medicines to the medical shops of Mangaluru City in TATA ACE Tempo bearing registration No.KA-10/D-1479 and when the petitioner was taking the medicines in the said vehicle near Urva Store at 11.15 a.m., a bus bearing registration No.KA-19/C-2384 driven by its driver in a rash and negligent manner came from Urva store towards Kottara Chowki side dashed against the petitioner. Due to the impact, petitioner has sustained grievous injuries and he was shifted to Yenepoya Hospital, Mangaluru and admitted as inpatient from 07.06.2012 to 16.06.2012 wherein treatment was provided and surgery was conducted for treatment of fracture. He was advised to take rest and follow up treatment.

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It was pleaded that he spent huge amount towards payment to attendant and nourishing food and conveyance etc. It was further pleaded that the accident occurred purely on account of the rash and

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negligent riding of the vehicle by its rider. Hence he filed claim petition before Tribunal seeking

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compensation.

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On service of notice, respondent No.1 - owner of the vehicle did not appear and remained exparte. Respondent No.2 appeared through its counsel and filed his written statement in which the averments made in the petition were denied. It is also contended that compensation claimed is exorbitant. Issuance of insurance policy in respect of offending vehicle was admitted. 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. The age,

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avocation and income of the claimant and the medical expenses are denied. 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 claimant himself was examined as PW-1, Dr. Ullas Shetty was examined as PW-2 and another person Uday Kumar as PW-3 and got marked documents namely Ex.P1 to Ex.P14. On behalf of the respondents, they neither examined any witness nor marked any documents. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the offending vehicle by its rider, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.1,21,197/- along with interest at the rate of 6% p.a. and directed the insurance company to deposit the

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compensation amount along with interest. Being

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aggrieved, the claimant has preferred this appeal.

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Sri.Guruprasad B.R, the learned counsel for

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the claimant has contended that the Tribunal has not taken into consideration the evidence of doctor and disability sustained by him. He further contended that though there was fracture, the laid up period is taken only one month, which needs to be enhanced by taking into consideration the period required for healing of the wound. He further contended that he has produced the salary certificate at Ex.P9 to prove that the petitioner was earning Rs.15,000/- per month.

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Secondly, due to the accident, the claimant has sustained grievous injuries. PW-2 - the doctor has stated in his evidence that the claimant has suffered permanent disability of 5% to particular lower limb. But the Tribunal has erred in taking the whole body disability.

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Thirdly, claimant was treated as inpatient for a period of 10 days in the hospital. He has suffered lot of pain during treatment. Considering the same, the compensation granted by the Tribunal under the head of 'pain and sufferings', 'loss of amenities', and conveyance, Nourishing food and other incidental expenses are on the lower side. Hence, he sought for enhancement of compensation.

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On the other hand, Smt. Harini Shivananda, learned counsel for the Insurance Company has contended that even though the claimant claims that he has suffered grievous injuries and has suffered the disability, but due to the disability there is no loss of income since he has continued his service. Therefore, Tribunal has not granted any compensation for loss of future earnings. Considering the evidence of Dr. Ullas Shetty - PW.2 and considering the wound certificate – Ex.P-5, the overall compensation awarded by the

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Tribunal is just and reasonable. Hence, she sought for dismissal of the appeal.

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8. Perused records of the case and evidence.

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It is not in dispute that the accident has

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occurred due to rash and negligent riding of the offending vehicle by its rider.

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Due to the accident, the claimant has suffered the

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following injuries:-

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i. Fracture of shaft femur. ii. Abrasion scalp lice region.

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Even though the doctor has assessed the disability, since the claimant has continued in his service there is no loss of income due to disability. But the claimant has to suffer the disability and unhappiness throughout his life. Taking into consideration, the evidence of Doctor – PW.2 and wound certificate – Ex.P5, I am inclined to enhance the compensation awarded by the Tribunal towards the head ‘loss of

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amenities from Rs.15,000/- to Rs.25,000/-. He was inpatient for a period of 10 days. He has suffered lot of pain during the treatment. Considering the evidence of PW.1 and considering medical bills – Ex.P11, I am of the opinion, in addition to the compensation awarded by the Tribunal, the claimant is entitled for compensation under the head 'Pain and suffering' at Rs.30,000/-. Though the Tribunal has referred to the evidence of PW1 and PW3, regarding the income of the petitioner, it has come to a conclusion that wound would be healed within a period of one month and has awarded compensation at Rs.15,000/-. This in my considered view needs to be revised. At least a person with such a fracture that too a person who is moving from one shop to another for distribution of medicine, it is not possible to him atleast for a period of 3 months to travel. Therefore, the compensation under the head of laid up period requires to be enhanced from Rs.15,000/- to Rs.45,000/-. The petitioner has suffered fracture of femur. The doctor

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has stated that disability is to the extent of 5%. The avocation disability of PW.1 is not mentioned by the Doctor and taking into consideration the disability of PW1 to the entire body, it will be less than 1% which is negiglible. Less than 1% disability to the entire body cannot be considered as permanent disability. However, in view of the avocation and there was a fracture of femur, the unhappiness and inconvenience he has to suffer throughout his life. Since the Tribunal has not taken into consideration the disability as it was very minimum, though there was very little disability, the sum of Rs.25,000/- is awarded towards the head 'loss of amenities.' The Tribunal has awarded future medical expenses at Rs.15,000/- . PW2 has admitted that there is different charges for different hospitals for removal of implants. Taking into consideration the expenses for removal of implants a sum of Rs.20,000/- is awarded as against Rs.15,000/- awarded by the Tribunal without interest for future medical expenses. Food and

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conveyance during medical treatment is enhanced from Rs.8,000/- to Rs.10,000/-

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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	20,000	30,000
Medical expenses	48,197	48,197
Food and conveyance during medical medical treatment	8,000	10,000
Loss of income during treatment period	15,000	45,000
Loss of amenities	15,000	25,000
Future medical expenses	15,000	20,000
Total	1,21,197	1,78,197

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Thus, petitioner would be entitled to a total compensation of Rs.1,78,197 as against Rs.1,21,197/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.1,78,197 (Rupees One Lakh Seventy Eighty Thousand One Hundred and Ninety Seven only) as against Rs.1,21,197/- with interest at the rate of 6% per annum on the enhanced compensation amount from the date of the claim petition till its realization.

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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 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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Mr. Udaya Kumar Shetty @ Udaya Kumar v. United India Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Mr. Udaya Kumar Shetty @ Udaya Kumar v. United India Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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