Partly allowed

Mr. Sudhakar Kalbhavi v. Mr. S. Subair Kutty

Karnataka HC3 Nov 2022MFA/448/2017

Case brief

AI extract

What is this about?

The High Court allowed the motor accident claimant's appeal in part, enhancing the future loss of income compensation from Rs. 3.72 lakh to Rs. 8.10 lakh by adopting a 50% disability and multiplier of 9 for a 55-year-old amputee, resulting in a total increase of Rs. 4.97 lakh with interest.

What did the court decide?

Additional compensation of Rs. 4,97,400 with interest at 6% p.a. to be deposited by the Insurance Company within four weeks.

Mr. Sudhakar Kalbhavi Vs Mr. S. Subair Kutty — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD 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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M.F.A. No.448 OF 2017 (MV-I)

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BETWEEN:

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MR.SUDHAKAR KALBHAVI AGED ABOUT 58 YEARS S/O VITTAL BHANDARY R/AT DOOR NO.5-91/4 ARADHANA HOUSE, NEAR GOVT. SCHOOL KALBHAVI, KODIKAL MANGALURU TALUK D.K. DISTRICT- 575 008 ...APPELLANT

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(BY SRI RAVISHANKAR SHASTRY G, ADVOCATE)

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AND:

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MR.S.SUBAIR KUTTY S/O SHAMSHUDDIN KUTTY AGED ABOUT 56 YEARS R/AT SRI NILAYA, D.NO.4-42/ID JUMMA MASJID COMPOUND KULAI BLOCK- 4 MANGALURU TALUK D.K. DISTRICT - 575 005

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ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD.,

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3RD FLOOR, SHALIMAR COMPLEX KANKANADY, MANGALURU, D.K.DISTRICT REPTD. BY ITS MANAGER - 575 002

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…RESPONDENTS

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(BY SRI RAVI S SAMPRATHI, ADVOCATE FOR R2; R-1 IS SERVED)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.09.2016 PASSED IN MVC NO.1760/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT, MANGALURU, D.K. PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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THIS M.F.A. COMING ON FOR HEARING, THIS DAY C.M.JOSHI J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Aggrieved by the judgment and award dated 01.09.2016 passed in MVC No.1760/2014 by the learned Principal Senior Civil Judge and MACT, Mangaluru, D.K., partly allowing petition awarding compensation of Rs.9,18,675/-, the petitioner/appellant has approached this Court in appeal by urging various grounds.

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The parties are referred to as per their ranks before the Tribunal for the sake of convenience.

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3. The brief facts are as below:

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That on 4-10-2014 at 8.35 p.m. petitioner was proceeding along with his wife as pillion rider on motor cycle bearing No.KA.19/EK/1289 from Kuloor towards Kottara Chowki and when they reached Kodikal cross, Nanthoor Kuloor road, MangaLuru, they took right turn in order to proceed towards Kodikal side after giving signal and when they reached the other portion of the road, Car bearing No.KA.19-MA 3561 driven by its driver in a rash and negligent manner came from Nanthoor towards Kuloor side and dashed against the petitioner's motor cycle. Due to which, petitioner and pillion rider were thrown out to the road and sustained injuries. Immediately, they were shifted to A.J. Hospital Mangalore for treatment.

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It is the further case of the petitioner that he took treatment as inpatient in the said hospital from 4-10-2014 to 15-10-2014 and spent Rs.2,00,000/- towards medical and other expenses. It is the case of the petitioner that he was hale and healthy prior to the accident, aged about 55

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years and running printing press under partnership in the name of 'Karavali Printers' at Mangaluru and earning Rs.50,000/- per month. The accidental injuries has caused permanent disability and due to which he could not able to attend his avocation, as he has got severe pain in the fractured portion and he is not able to walk without any support due to amputation of left lower limb and as such, he is entitled for the compensation of Rs.75,00,000/- from the respondents who are the RC holder and Insurer of the offending vehicle.

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On issuance of notice by the Tribunal, 1st respondent remained absent and placed exparte and 2nd respondent-Insurance Company appeared through its counsel and filed objections, denying the petition averments and contending that the amount claimed is highly excessive and exorbitant and the age, income and occupation of the petitioner was denied. It was further denied that the alleged accident has happened due to rash and negligent driving of car bearing No.KA.19-MA 3561

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and contended that the petitioner has suppressed the true and material facts regarding the accident and also denied the amount spent by the petitioner towards medical expenses. However, it is admitted that the car bearing No.KA.19-MA-3561 was insured with it and policy was in force as on the date of accident, but liability is subject to the terms and conditions of the policy and that mandatory provisions were not complied. It is also contended that the driver of the offending car has no valid and effective DL and as there is violation of policy conditions, it is not liable to pay any compensation to the petitioner and prayed to dismiss the petition with costs.

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On the basis of the above pleadings, the Tribunal has framed the necessary issues.

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The petitioner got examined himself as PW1 and examined two witnesses as PWs 2 and 3 and marked Exs.P1 to P44 in evidence. Respondents did not adduce or produce any oral or documentary evidence.

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On hearing both the sides, the Tribunal answered

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the issue No.1 in the affirmative and passed an award for a

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sum of Rs.9,18,675/- under different heads as under:

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Pain and sufferings	Rs.1,50,000/-
Medical Bills	Rs.1,05,075/-
Artificial Limb expenses	Rs.1,56,000/-
Conveyance, Food & Attendant	Rs. 15,000/-
Loss of Amenities	Rs. 30,000/-
Loss of income during laid of period	Rs. 90,000/-
Future loss of income	Rs.3,72,600/-
Total	Rs.9,18,675/-

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Aggrieved by the said judgment and award, the

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petitioner is before this Court seeking enhancement.

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Respondent No.2-Insurance company has appeared in pursuance to the notice issued by this Court and despite service of notice to respondent No.1 he has not appeared.

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Tribunal records have been secured and we have heard learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the Insurance Company/respondent No.2.

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We have perused the records meticulously with reference to the arguments advanced by the learned counsel for the appellant and the respondent-Insurance Company.

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The perusal of the spot sketch, spot mahazar and other police papers disclose that the police papers produced by the petitioner show that the accident happened due to the actionable negligence of the car driver. There is nothing to show that the car driver had no valid DL at the time of the accident. The Tribunal has rightly come to the conclusion that the liability has to be fastened on the insurer of the offending vehicle owned by the respondent No. 1.

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13 . The appellant/petitioner is the injured and aged about 55 years. It is submitted that he was a partner in a printing press and he was a binder. He was a partner in the Printing press and therefore, he was in the management of the said business. Obviously, managing a press involves movement for the purpose of procuring

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business as well as the functioning of the printing press. In that view of the matter, the mechanical conclusion of the disability to the extent of 1/3rd of the disability of the limb cannot be approved by this Court. Clearly, the Tribunal has erred in this aspect. The functional disability should have been visualized by the Tribunal. In the considered opinion of this Court it would be proper to adopt the disability of 50% as petitioner has undergone amputation of left leg below knee. Thus, the compensation is assessed as Rs.15,000/- x 12 x 9 x 50%=8,10,000/- by adopting multiplier of '9' for the age of 55 years of the petitioner towards loss of future income. Further, the petitioner is also entitled for a sum of Rs.30,000/- towards conveyance, food and attendant charges and Rs.75,000/towards loss of amenities.

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We do not see any other modification of the compensation in respect of the remaining heads as assessed by the Tribunal and no interference is required in

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respect of the compensation awarded under the remaining

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heads. Hence, the compensation is re-assessed as below:

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Pain and sufferings	Rs. 1,50,000/-
Medical Bills	Rs. 1,05,075/-
Artificial Limb expenses	Rs. 1,56,000/-
Conveyance, Food & Attendant	Rs. 30,000/-
Loss of Amenities	Rs. 75,000/-
Loss of income during laid of period	Rs. 90,000/-
Future loss of income	Rs. 8,10,000/-
Total	Rs.14,16,075/-
Less: Awarded by the Tribunal	Rs.09,18,675/-
Enhancement	Rs.4,97,400/-

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Thus, in addition to what has been awarded by the Tribunal, there shall be an increase of Rs.4,97,400/together with interest at 6% p.a. from the date of petition till the date of realization as awarded by the Tribunal.

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Hence, we pass the 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 dated 01-09-2016 passed in MVC No.1760/2014 by the Tribunal is modified by awarding additional compensation of Rs.4,97,400/- together with interest at 6% p.a. from the date of petition till its realization.

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(iii) All other conditions regarding apportionment and deposit remain unaltered.

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(iv) Insurance Company is directed to deposit the compensation amount with interest within four weeks from the date of receipt of the copy of this order.

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Sd/JUDGE

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Sd/JUDGE

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tsn*

Mr. Sudhakar Kalbhavi v. Mr. S. Subair Kutty

Case brief

What is this about?

What did the court decide?

Mr. Sudhakar Kalbhavi v. Mr. S. Subair Kutty

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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