Partly allowed

Sri. M. Krishna Murthy v. Sri. K.N. Gopal Krishna

Karnataka HC29 Nov 2022MFA/1036/2015

Case brief

AI extract

What is this about?

The High Court modified the Tribunal's order in a motor accident case, enhancing the compensation from Rs. 2,29,000 by an additional Rs. 1,50,000 globally to account for inadequate awards on pain, amenities, lost income, and future expenses.

What did the court decide?

Compensation enhanced by Rs. 1,50,000 globally; interest at 6% p.a. awarded. Insurance company directed to deposit within 4 weeks.

Sri. M. Krishna Murthy Vs Sri. K.N. Gopal… — Contract and Commercial Disputes | Karnataka HC (2022)

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MFA No. 1036 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF NOVEMBER, 2022

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO.1036 OF 2015 (MV-I)

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BETWEEN:

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SRI. M. KRISHNA MURTHY S/O HANUMANTHAPPA AGED ABOUT 45 YEARS, R/AT NO.24, 1ST MAIN, CHIKKA BHOMMASANDRA, GKVK POST, BANGALORE.

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Digitally signed by T S NAGARATHNA (BY SRI. MURTHY M V., ADVOCATE) Location: High Court of AND: Karnataka

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…APPELLANT

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SRI. K.N. GOPAL KRISHNA S/O NARAYANAPPA, MAJOR, CHIKKADIBBURAHALI VILLAGE, DIBBURAHALLI POST, SIDLAGHATTA TALUK, KOLAR DISTRICT.

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NATIONAL INSURANCE COMPANY LTD., REP. BY ITS BRANCH MANAGER, NO.1092/2, NEW EXTENSION,

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MFA No. 1036 of 2015

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NEAR DEMO LIGHT CIRCLE, KOLAR - 563 101.

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…RESPONDENTS

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(BY SRI R JAIPRAKASH , ADVOCATE FOR R2; R1 SERVED UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.03.2014 PASSED IN MVC NO.3676/2012 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY C.M.JOSHI J. , DELIVERED THE FOLLOWING:

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JUDGMENT

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By consent of the learned counsel appearing for both sides, the matter is taken up for final disposal, though it is posted today of Admission.

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Being aggrieved by the judgment and award dated 10.03.2014 passed in MVC No.3676/2012 by the learned XXII Additional Small Causes Judge, Court of Small Causes and Member, MACT, Bangalore, whereby the petition filed by the petitioner came to be allowed in part awarding compensation of Rs.2,29,000/together with interest at 6% p.a., petitioner/appellant herein has filed this appeal urging various grounds.

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MFA No. 1036 of 2015

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The parties are referred to as per their nomenclature

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before the Tribunal for the sake of convenience.

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The brief facts of the case are as below:

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That on 10.09.2011 at about 6.45.p.m, the petitioner was going as an occupant of the car bearing Reg.No.KA-04-MF-2313 along with his wife Smt.Khanthamma @Kantha and his friends and he is the registered owner of the car. While proceeding on Sadahalli Gate Cross, NH-7, near Peresandra, Gudibanda Taluk, Chickballapura, Tractor & Trailer bearing Reg. No. KA-40-T-474849 belonging to the 1^st respondent came in a high speed in a rash and negligent manner and dashed against the car. Due to which, petitioner sustained grievous injuries. The accident has taken place due to the rash and negligent driving of the Tractor & Trailer bearing Reg. No.KA-40-T-4748-49. Immediately he was shifted to Chickballapura Government Hospital and after first aid, he was shifted to Columbia Asia Hospital, Hebbal, Bangalore, where, he took treatment as an inpatient from 11.09.2011 to 13.09.2011 and spent Rs.6,00,000/- towards medical expenses, an Rs.1,00,000/towards conveyance, nourishment, food and other incidental

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MFA No. 1036 of 2015

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expenses. it is also contended that, prior to the accident, petitioner

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was working as an Operator at Wheel and Axel Yelahanka, Bangalore, and earning Rs.50,000/- per month and on account of the injuries, he is under regular follow up treatment and unable to attend to his work and lost his income.

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It is further stated that, the accident in question has occurred solely due to rash and negligent driving by the driver of the tractor and trailer and Gudibanda Police have registered a case against the driver of the Tractor and Trailer in Cr.No.140/2011 for the offences punishable under Sections 279, 337 and 338 of IPC. It is further contended that 1st respondent being the RC owner and 2nd respondent being the insurer of the tractor and trailer and since the policy was in force as on the date of the accident, they are liable to pay compensation to him. Therefore, prayed to allow the petition.

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4. In response to the notice issued by the Tribunal, respondent Nos.1 and 2 have appeared through their counsel before the Tribunal and respondent No.2 resisted the claim petition by filing detailed written statement. Inspite of granting opportunity, respondent No. 1 has not filed the written statement.

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MFA No. 1036 of 2015

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Respondent No.2 denied the accident and also denied the injuries sustained by the petitioner, taking treatment, medical expenses, conveyance and nourishment expenses, age and the avocation. However, respondent No.2 admits for having insured the Tractor & Trailer bearing Reg. No. KA-40-T-4748-49 and contended that, 1^st respondent used the tractor for carrying stones which is neither agricultural operation or forestry purpose and violated the terms of the policy and therefore, it is not liable to indemnify the insured. It is also contended that, the driver of the Tractor & Trailer bearing Reg. No.KA-40-T-4748-49 was not having valid and effective driving licence at the time of the alleged accident. Further, it is contended that, the driver of the car bearing Reg. No. KA-04MF-2313 had no valid and effective driving licence to drive the said vehicle and therefore, prayed to reject the petition with cost.

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On the basis of the above pleadings and contentions of the parties, the Tribunal framed necessary issues for its consideration.

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Before the Tribunal, petitioner got examined himself as PW1, examined the Doctor as PW 5 and marked Exs.P1 to P41. Respondents did not adduce or produce any oral or documentary evidence. On hearing both the sides, the Tribunal proceeded to

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MFA No. 1036 of 2015

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allow the petition in part by awarding compensation of Rs.2,29,000/- under different heads as under:

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Pain sufferings	Rs. 25,000/-
Medical Expenses	Rs.1,34,000/-
Conveyance charges, attendant expenses, food and nourishment expenses	Rs. 10,000/-
Loss of income during the period of treatment	Rs. 10,000/-
Futuremedicalexpenses	Rs. 25,000/-
Loss of amenities of life	Rs. 25,000/-
Total	Rs.2,29,000/-

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Aggrieved by the said judgment and award, the petitioner is before this Court seeking enhancement.

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Respondent No.2- insurance company has appeared in pursuant to the notice issued by this Court.

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Tribunal records have been secured and we have heard learned counsel Sri M.V. Murthy, appearing for the appellant/petitioner and the learned counsel Sri R. Jaiprakash, appearing for the Insurance Company/respondent No.2.

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The learned counsel appearing for the appellant submitted

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that the compensation awarded by the Tribunal is meager and it has failed to consider the loss of future earnings of the petitioner and

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MFA No. 1036 of 2015

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also the loss of income during the laid up period. He submitted that

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the petitioner was working in Axle and Wheel factory of Railways and due to accidental injuries, he was forced to leave the job and as such, the loss of future income should have been considered by the tribunal. He also pointed out that the compensation awarded under various other heads were also abysmally low.

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Per contra, learned counsel appearing for the 2nd respondent- Insurance Company has submitted that the petitioner had voluntarily resigned to the job and such leaving the job was not due to the accidental injuries suffered by him. He submitted that the Tribunal having considered this aspect, proceeded to consider the loss of income during laid up period on the basis of the average income of the petitioner based on the pay slips produced. Therefore, the learned counsel for the Insurance company has defended the compensation awarded by the Tribunal. Thus, he prayed for dismissal of the appeal.

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The petitioner had suffered inter trochanteric fracture of right femur and cut injury over the forehead as evidenced by the wound certificate produced at Ex.P6. He was inpatient from 10-09-2011 to 13-09-2011 and he was treated and had to undergo

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MFA No. 1036 of 2015

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physiotherapy till he became fit to join for the job. In the oral testimony of PW1, there is no mention as to the type of the job he was performing. Therefore, the Tribunal is justified in holding that there is no such loss of future income on account of the injuries suffered by him. It is not the case of the appellant/petitioner that he was removed from the job as he was unfit. It is his case that, he could not perform his duties therefore, he opted for voluntary retirement. When the petitioner was working in Axle and Wheel Factory of railways, it was an instrumentality of the State, it was bound to provide alternate job profile to him and it could not have removed the petitioner from the service. Hence, it cannot be concluded that the petitioner quitting the job is on account of the injuries sustained by him. The Tribunal has observed this aspect in para 35 of the judgment.

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The Tribunal has awarded a sum of Rs.25,000/- under the

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head of pain and suffering and a sum of Rs.10,000/- each for conveyance charges and attendant expenses and for loss of income during the laid up period. In our considered view, the compensation under the head of pain and suffering and the loss of income during laid up period appears to be inadequate. A trochanteric fracture of

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MFA No. 1036 of 2015

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femur would paralyze a person for considerable time till the fracture is united. Therefore, it can safely be said that the petitioner was unable to resume his work at least for a period of 3 to 4 months.

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The Tribunal has assessed the income of the petitioner at Rs.10,000/- per month. It is relevant to note that in coming to such conclusion it had placed reliance on the Pay slips at Exs.P11 and 12. On a careful perusal, it appears that the net salary is considered to be gross salary and the actual take home salary is alone considered by the Tribunal. If the petitioner was unable to move for a period of 3 to 4 months, he would have applied for the leave for so many days and it is evident that he was on leave without pay for 17 days. The exact period of leave is not available on record. Therefore, we are at loss to assess the actual period of leave he had availed, which he could have encashed. Therefore, there is insufficient material to assess the loss of income during the laid up period.

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Similarly, though the petitioner require future medical expenses, the exact amount assessed by the Tribunal at rs.25,000/appears to be on the lower side. An assessment of the requirement

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10 -

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MFA No. 1036 of 2015

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is not available, but, petitioner had undergone surgery or in the requirement of physiotherapy to commence his normal activities.

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Considering the nature of the injuries suffered by the petitioner, the compensation awarded under the head of pain and suffering and loss of amenities of life also needs to be enhanced. On a reassessment of the evidence available on record, it appears to be difficult to calculate the compensation amount precisely. Further, the Tribunal though considers the damage caused to the vehicle of the petitioner, it has not awarded any compensation for insufficient material placed before it.

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Hence, considering the need for enhancement under the head of pain and suffering, loss of income during laid up period, loss of amenities in life and future medical expenses, we propose to enhance the compensation amount by Rs.1,50,000/- globally in addition to what has been awarded by the Tribunal. Hence, we pass the following:

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ORDER

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(i) Appeal is allowed in part

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MFA No. 1036 of 2015

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(ii) The judgment and award dated 10.03.2014 passed in MVC No.3676/2012 by the Tribunal is modified by enhancing the compensation of Rs.1,50,000/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till deposit.

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(iii) Insurance company is directed to deposit the compensation amount together with interest within a period of 4 weeks from the date of receipt of the copy of this order.

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(iv) The conditions of apportionment and deposit as ordered by the Tribunal remain unaltered.

Sd/JUDGE

Sd/JUDGE

tsn*

List No.: 2 Sl No.: 13

Sri. M. Krishna Murthy v. Sri. K.N. Gopal Krishna

Case brief

What is this about?

What did the court decide?

Sri. M. Krishna Murthy v. Sri. K.N. Gopal Krishna

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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