Partly allowed

Master Mohammed Thameem v. Mr. Sachin S Suvarna

Karnataka HC21 Oct 2022MFA/2461/2021

Case brief

AI extract

What is this about?

In this Motor Vehicle Accident claim appeal, the High Court enhanced the compensation awarded by the Claims Tribunal. The court adjusted the notional income and disability percentage, increased awards for pain and sufferings, loss of amenities, and loss of income during the laid-up period, while upholding the claim for future medical expenses was rejected.

What did the court decide?

Appeal allowed in part. Total compensation enhanced to Rs.620,660, payable by Insurance Company with interest.

Master Mohammed Thameem Vs Mr. Sachin S Suvarna — Medical Negligence | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF OCTOBER 2022

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BEFORE

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THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD

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MFA No.2461 OF 2021(MV)

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BETWEEN

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MASTER MOHAMMED THAMEEM S/O ABDUL RAHIMAN AGED ABOUT 21 YEARS RESIDING AT 1-33 NUSTARU KURLOTTU HOSANGADI PERANJA BELTHANGADY TALUK D K DISTRICT 574222.

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...APPELLANT

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(BY SRI.RAVISHANKAR SHASTRY G., ADV.)

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AND

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1 . MR. SACHIN S SUVARNA S/O SUDHAKARA BANGERE ADULT, R/AT H NO 13-74 AMMANNA GARDEN MANAPADI MULKY POST MANGALURU TALUK D K 575012.

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2 . SHRIRAM GENERAL INSURANCE CO LTD E-8, EPIP RIICO INDUSTRIAL AREA SITAPURA JAIPURA

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RAJASTHAN REP. BY ITS MANAGER 302001.

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3 . MR.HAMEED S/O ISMAIL ADULT R/AT D NO 12-42(6) NEERALIKE HOUSE KALLABETTU MOODABIDRI MANGALURU TALUK D K DISTRICT 574227.

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4 . NATIONAL INSURANCE CO LTD REPRESENTED BY ITS BRANCH MANAGER 1ST FLOOR NITHYANANDA COMPLEX NEAR BUS STAND MOODABIDRI, MANGALURU TALUK D K DISTRICT 574227.

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…RESPONDENTS

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(BY SRI.B.C. SHIVANNE GOWDA, ADV. FOR R2: NOTICE TO R1 IS SERVED AND UNREPRESENTED NOTICE TO R3 & R4 ARE DISPENSED WITH V/O DATED: 21.10.2022)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.07.2020 PASSED IN MVC NO. 768/2017 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER-MACT, DAKSHINA KANNADA, MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant being aggrieved by the judgment dated 2.7.2020 passed by MACT, D.K.Mangaluru in MVC 768/2017.

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Facts giving rise to the filing of the appeal briefly stated are that on 6.10.2016 when the claimant was proceeding as pillion rider in a motorcycle bearing registration No.KA-19-EP-8469 from Beluvai towards Moodabidri side at Kesaragadde, at that time, car bearing registration No.KA34-7960 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section

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166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.

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On service of notice, the respondent Nos.2, 3 and 4 appeared through their respective counsel and only respondent Nos.2 and 4 filed written statements in which the averments made in the petition were denied.

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The respondent No.1 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.

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On the basis of the pleadings of the parties,

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the Claims Tribunal framed the issues and thereafter

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recorded the evidence. The claimant himself was examined as PW-1 and Dr.Mahabalesh Shetty was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P14. On behalf of the respondents, no witness was examined and got exhibited documents namely Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle 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.462,400/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, the present appeal has been filed.

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The learned counsel for the claimant has raised the following contentions:

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Firstly, even though the claimant claims that he was doing coolie work and earning Rs.15,000/- per month, but the Tribunal has taken the notional income as merely as Rs.7,500/- per month.

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Secondly, the claimant has examined the doctor as PW-2. The doctor in his evidence has stated that the claimant has suffered permanent disability of 18% to left limb and 16% to right lower limb. But the Tribunal has taken the whole body disability at 10%, which is on the lower side.

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Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 20 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment. Considering the same, the compensation awarded by the Tribunal under the

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heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are on the lower side.

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Fourthly, as per Ex.P-11, certificate for removal implants the claimant has claimed Rs.48,000/towards 'future medical expenses' for removal of implants. But the Tribunal has not granted any compensation under the head of 'future medical expenses'. Hence, he sought for allowing the appeal.

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On the other hand, the learned counsel for the Insurance Company has raised following counter contentions:

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Firstly, even though the claimant claims that he was earning Rs.15,000/- per month, he has not produced any documents to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally.

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Secondly, the Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 10%.

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Thirdly, the claimant claims Rs.48,000/- towards 'future medical expenses'. But PW-2 has deposed that implants have been removed before issuing the disability certificate. Therefore, the claimant is not entitled for any compensation under the head of 'future medical expenses'.

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Fourthly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the overall compensation awarded by the Tribunal is just and reasonable and it does not call for interference. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.

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9. It is not in dispute that the claimant has

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sustained injuries in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver.

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The claimant claims that he was earning Rs.15,000/- per month. He has not produced any documents to prove his income. Therefore, in the absence of proof of income, notional income has to be assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken place in the year 2016, the notional income has to be taken at Rs.9,500/- p.m.

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As per wound certificate, the claimant has sustained tenderness and swelling over the left thigh with underlying fracture of left femur bone, tenderness and swelling over the right thigh with underlying fracture of right femur bone and abrasions over the face. The doctor in his evidence has stated

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that the claimant has suffered disability of 18% to left lower limb and 16% to right lower limb. Therefore, taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate, I am of the opinion that the whole body disability can be taken at 13%. The claimant is aged about 17½ years at the time of the accident and multiplier applicable to his age group is ‘18’. Thus, the claimant is entitled for compensation of Rs.266,760/(Rs.9,5001218*13%) on account of 'loss of future income'.

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The nature of injuries suggests that the claimant must have been under rest and treatment for a period of 3 months. Therefore, the claimant is entitled for compensation of Rs.28,500/- (Rs.9,500*3 months) under the head ‘loss of income during laid up period’.

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The claimant was treated as inpatient for more than 20 days in the hospital and thereafter, has

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received further treatment. Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He has suffered lot of pain during treatment and he has to suffer with the disability stated by the doctor throughout his life. Considering the same, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'pain and sufferings' from Rs.25,000/- to Rs.45,000/- and under the head of 'loss of amenities' from Rs.20,000/- to Rs.40,000/-.

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As per Ex.P-11, the claimant claims Rs.48,000/towards 'future medical expenses' for removal of implants. But PW-2 has deposed that implants have been removed before issuing the disability certificate. Therefore, the Tribunal has rightly not granted any compensation under the head of 'future medical expenses'.

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Considering the nature of injuries, the

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compensation awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the

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following compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	25,000	45,000
Medical expenses	220,400	220,400
Food, nourishment, conveyance and attendant charges	20,000	20,000
Loss of income during laid up period	15,000	28,500
Loss of amenities	20,000	40,000
Loss of future income	162,000	266,760
Total	462,400	620,660

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In the result, the appeal is allowed in part . The judgment of the Claims Tribunal is modified.

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The claimant is entitled to a total compensation

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of Rs.620,660/-.

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The Insurance Company is directed to deposit the compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.

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Sd/JUDGE

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Master Mohammed Thameem v. Mr. Sachin S Suvarna

Case brief

What is this about?

What did the court decide?

Master Mohammed Thameem v. Mr. Sachin S Suvarna

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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