Partly allowed

Chethan K Shetty v. Mohammed Javed Sheikh

Karnataka HC14 Oct 2022MFA/5055/2020

Case brief

AI extract

What is this about?

In an appeal against a Motor Vehicle Accident Tribunal award, the High Court enhanced compensation from Rs. 7.95 lakh to Rs. 22.45 lakh for grievous injuries and disability. The Court corrected the disability multiplier and awarded compensation for future expenses, loss of amenities, and marriage prospects.

What did the court decide?

Compensation enhanced from Rs. 7,95,700 to Rs. 22,45,900, including Rs. 14,50,200 enhancement. Insurer directed to deposit amount; 50% fixed deposit for 5 years.

Chethan K Shetty Vs Mohammed Javed Sheikh — Motor Accident Claims | Karnataka HC (2022)

¶1

1 - MFA No. 5055 of 2020

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 14^TH DAY OF OCTOBER, 2022

¶4

PRESENT

¶5

THE HON'BLE MR. JUSTICE B.VEERAPPA

¶6

AND

¶7

THE HON'BLE MRS. JUSTICE K. S. HEMALEKHA

¶8

MISCELLANEOUS FIRST APPEAL NO.5055 OF 2020(MV-I)

¶9

BETWEEN:

¶10

CHETHAN K. SHETTY, AGED ABOUT 26 YEARS, REP. BY HIS NEXT FRIEND/ MOTHER SUNANDA SHETTY, AGED ABOUT 67 YEARS, W/O KALAPPA SHETTY, R/AT KOPPALA, YERLAPADY POST, YERLAPADY VILLAGE, KARKALA TALUK-574104, UDUPI DISTRICT.

¶11

…APPELLANT

¶12

(BY SRI. PAVANA CHANDRA SHETTY H., ADVOCATE)

¶13

AND:

¶14

Digitally signed by USHA NAGENAHALLI SHANMUKHAPPA Location: High Court of Karnataka

¶15

MOHAMMED JAVED SHEIKH, S/O ABDUL RAHIMAN, AGED ABOUT 39 YEARS, R/A D.NO.11-73, PADU THONSE, HOODE POST, UDUPI TALUK-576101.

¶16

THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, VISHNU PRAKASH,

¶17

¶18

MFA No. 5055 of 2020

¶19

II AND III FLOOR, COURT ROAD, UDUPI-576101.

¶20

…RESPONDENTS

¶21

(BY SRI. LAKSHMINARASAPPA, ADVOCATE FOR SRI A.M. VENKATESH, ADVOCATE FOR R2; VIDE ORDER DATED 04.03.2021 NOTICE TO R1 IS DISPENSED WITH)

¶22

¶23

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE IMPUGNED JUDGMENT AND AWARD, DATED 20.01.2020, PASSED IN MVC NO.399/2019, ON THE FILE OF THE SENIOR CIVIL JUDGE AND AMACT, KARKALA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION.

¶24

THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:

¶25

J U D G M E N T

¶26

The unfortunate claimant has filed by the present miscellaneous first appeal through his mother against the impugned judgment and award, dated 20.1.2020, passed in MVC No.399/2019 by the learned Senior Civil Judge and AMACT., Karkala partly allowing the claim petition and awarding total compensation of Rs.7,95,700/- with interest at the rate of 8% per annum from the date of claim petition till realisation.

¶27

¶28

MFA No. 5055 of 2020

¶29

It is the case of the claimant, who filed claim petition under Section 166 of Indian Motor Vehicles Act, seeking compensation for the severe head and other serious injuries sustained by him in a road traffic accident that occurred on 02-11-2018 at 7.30 a.m., while he was walking by the side of Udupi – Karkala Main Road and when he reached in front of Bailoor Government Pre-University College, Neere Bailoor Village, the driver of TATA 407 Tipper Lorry bearing Reg. No.KA20-AA-2411 drove the same in a rash and negligent manner with high speed and due to sudden apply of brake, the left side door of the said lorry suddenly opened and came in touch with back portion of his head, as a result, he sustained grievous injuries. Immediately he was taken to KMC Hospital Manipal and was admitted as an inpatient from 02-11-2018 to 17-12-2018 and from 05-02-2019 to 09-02-2019. The duty doctor of Neurosurgical Department of KMC Hospital, Manipal advised him to take further treatment at St. Johns Hospital, Bangalore after 6 months. He spent Rs.1,75,000/- towards medical expenses and requires

¶30

¶31

MFA No. 5055 of 2020

¶32

Rs.2,00,000/- towards future medical expenses. He also spent for conveyance, attendant charges, nourishment of food. He was working as Office Assistant at Udayavani Daily News Paper since 30 years and earning Rs.30,000/- per month. Due to accidental injuries he is not in a position to do the work. The petitioner has suffered loss of income, loss of future income, disability, other pecuniary and non-pecuniary damages. Therefore sought compensation as prayed for.

¶33

In spite of service of notice, respondent No.1Mohammed Javed Sheikh remained absent and hence, he was placed exparte.

¶34

Respondent No.2-Oriental Insurance Co.Ltd., the insurer of TATA 407 Tipper Lorry bearing Reg. No.KA-20-AA-2411 filed written statement denying the averments made in the claim petition and admitted that the offending vehicle TATA 407 Tipper Lorry bearing Reg. No.KA-20- AA-2411 has been insured and the insurance policy was in force as on the date of the accident. It was further

¶35

¶36

MFA No. 5055 of 2020

¶37

contended that at the time of alleged accident, the driver of TATA 407 Tipper Lorry bearing Reg. No.KA-20-AA-2411 was not holding valid and effective driving licence and sought to dismiss the claim petition.

¶38

Based on the aforesaid pleadings, the Tribunal framed the following issues:

¶39

"i) Whether the petitioner prove that he sustained injuries in a Motor Vehicle Accident on 02-11-2018 at 7-35 a.m., at in front of Bailoor Government Pre-University College, Neere Bailoor Village due to rash and negligent driving of TATA 407 Tipper Lorry bearing Reg. No. KA-20- AA-2411 by its driver as contended?

¶40

¶41

¶42

MFA No. 5055 of 2020

¶43

ii) Whether respondent No.2 proves that the driver of TATA 407 Tipper Lorry bearing Reg. No. KA-20-AA-2411 had no valid and effective driving licence at the time of alleged accident?

¶44

In order to prove the case of the claimant, the mother of the claimant got examined herself as P.W.1 and one witness as P.W.2 and got marked the documents as Exs.P1 to P.25 and Exs.C1 to C3 were tendered during evidence of the claimant. Respondent No.2-Insurance Company did not adduce any oral evidence, but got marked Insurance policy as Ex.R1 with consent.

¶45

Considering both both oral and documentary evidence on record, the Tribunal recorded a finding that the injured claimant has proved that he has sustained injuries in the road accident that occurred on 02-11-2018 at 7-35 a.m., in front of Bailoor Government Pre-University College, Neere Bailoor Village due to rash and negligent driving of the driver of the TATA 407 Tipper Lorry bearing Reg. No. KA-20- AA-2411 and the insurance company has failed to prove that the driver of TATA 407 Tipper Lorry bearing Reg. No. KA-20-AA-2411 was

¶46

¶47

MFA No. 5055 of 2020

¶48

not holding valid and effective driving licence at the time of alleged accident. Accordingly, held that the claimant was entitled to the total compensation of Rs.7,95,700/- with interest at the rate of 8% per annum from the date of petition till the date of realization from the respondents. Hence the present miscellaneous first appeal is filed by the claimant for enhancement of compensation.

¶49

The Insurance Company has not filed any appeal against the impugned judgment and award passed by the Tribunal.

¶50

We have heard the learned Counsel for the parties.

¶51

Sri Pavana Chandra Shetty H., learned Counsel for the claimant contended that the impugned judgment and award passed by the Tribunal awarding total compensation of Rs.7,95,700/- (Rupees Seven Lakhs Ninety Five Thousand Seven Hundred only) with interest at the rate of 8% per annum from the date of petition till deposit of the amount to the claimant is meager and contrary to the material on record and as such, is liable to be modified by enhancing the compensation

¶52

¶53

MFA No. 5055 of 2020

¶54

as prayed for in the claim petition. He would further contend that due to the unfortunate accident, the claimant suffered Abraded Contusion 14 x 8 cm over the outer aspect of right arm, starting at shoulder tip. Immediately after the accident, he was shifted to the Hospital wherein he was treated as an inpatient for more than 18 days during which period, he sustained lot of physical and mental agony. Hence, under these circumstances, the Tribunal ought to have awarded high compensation on this head.

¶55

The learned Counsel for the claimant further contended that the claimant was hale and healthy prior to the accident and due to the accident, he is suffering from permanent disabilities i.e., Right sided facial nerve palsy Gr. 4 (20%), bilateral (L >>R) hearing loss (60%+ 20% ) and gait ataxia (50%). The Doctor has assessed the permanent disability of 100%, but tribunal considering disability of 15% to the whole body and income of the claimant only at Rs.12,000/instead of Rs.30,000/- per month, awarded only a sum of Rs.3,88,800/- towards loss of future income, which is highly arbitrary and against the principle of natural justice. He would

¶56

¶57

MFA No. 5055 of 2020

¶58

further contend that the compensation awarded under other heads are also on the lower side and as such, it requires enhancement. He would further contend that as the doctor has assessed 100% disability and the mother has to attend to his daily personal work as he is bed ridden and as such, he is entitled for compensation towards attendant charges throughout his life and the Tribunal erred in not awarding any compensation under the said head. He further contended that the claimant was aged about 24 years as on the date of the accident and as he has to lead rest of his life along with the said disability which affects his marriage prospects and also his future life and as such, there is a loss of future amenities, enjoyment of life and marriage prospects. Hence, he contended that the Tribunal erred in not awarding any compensation towards his marriage prospects and sought to allow miscellaneous first appeal filed by the claimant as prayed for.

¶59

Per contra, Sri Lakshminarasappa, learned Counsel for Sri A.M. Venkatesh, learned Counsel for respondent No.2insurance company while justifying the impugned judgment and award passed by the Tribunal contended that the doctor,

¶60

10 -

¶61

MFA No. 5055 of 2020

¶62

who is examined as P.W.2, not being doctor, who treated the claimant, has issued the disability Certificate as per Ex.P.25, cannot be accepted. He further contended that taking into consideration the entire material on record, the Tribunal was justified in awarding compensation under different heads and as such, sought to dismiss the miscellaneous first appeal.

¶63

In view of the aforesaid rival contentions urged by the learned Counsel for the parties, the only point that arises for our consideration is:

¶64

“ Whether the claimant has made out a case for enhancement of compensation awarded by the Tribunal in the peculiar facts and circumstances of the present case?

¶65

We have given our thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record including the original records carefully.

¶66

It is an admitted fact that the claimant has sustained the following injuries:

¶67

11 -

¶68

MFA No. 5055 of 2020

¶69

i) Abraded Contusion 14 x 8 cm over the outer aspect of right arm, starting at shoulder tip;

¶70

and permanent disability:

¶71

ii ) Right sided facial nerve palsy Gr. 4 (20%), bilateral (L >>R) hearing loss (60%+ 20% ) and gait ataxia (50%).

¶72

The Doctor has assessed the permanent disability at 100% to the claimant in the unfortunate accident that occurred on 2.11.2018 due to rash and negligent driving of the driver of the TATA 407 Tipper Lorry bearing registration No.KA-20-AA-2411 and the same is evident from the material documents Exs.P.1copy of the FIR, Ex.P.9-copy of the charge sheet filed by the jurisdictional police during the course of their employment holding that on account of rash and negligent driving of the driver of TATA 407 Tipper Lorry bearing registration No.KA-20AA-2411, the accident has occurred. The same is neither challenged by the owner of the said Lorry nor by the Insurance Company or the driver of the TATA 407 Tipper Lorry. As such the rash and negligent driving on the part of the driver of the TATA 407 Tipper Lorry bearing registration No.KA-20-AA-2411 is proved.

¶73

12 -

¶74

MFA No. 5055 of 2020

¶75

It is the specific case of the claimant's mother

¶76

examined as P.W.1 that her son has undergone surgical treatments over his fractured bones, Neurosurgical treatment for the above said injury as per wound certificate issued by the Neurosurgery Department of KMC Hospital, Manipal and he has to go for regular follow-up treatments as outpatient for several times; and even after taking expertise treatments in the said hospital, still his son is suffering from pain and permanent disability and he is not in a position to give even the evidence and as such, she has examined herself on behalf of her son/claimant. She has further deposed that her son has to take treatment throughout his life and prior to the accident, he was hale and healthy and was aged about 24 years. He was the sole bread earner in her family and due to the accident and the injuries sustained by him, his life has been completely crippled. He has lost his memory power and is not in a position to converse with any human being as he was before the accident. Further apart from losing of memory power, his face and back portion of skull has been severely damaged and his facial expression has been differed compared to earlier. The present situation of the claimant is such that without her help, he is not

¶77

13 -

¶78

MFA No. 5055 of 2020

¶79

able to take any independent decision like what he has to do or not to do. Thereby, he is suffering from neurosurgical disability to an extent of 75% when compared to the whole body. Accordingly, she has produced 25 documents through her evidence.

¶80

In her examination-in-chief, P.W.1 - mother of the claimant has specifically deposed that her son has lost memory power and is not in a position to take any independent decision like what he has to do or not to do and as such, she has examined herself natural guardian, and nothing has been elicited in her cross examination to disbelieve her evidence except the income of the deceased. Thereby, the Tribunal taking into consideration the age of the victim as 25 years as on the date of the accident i.e., 2.11.2018, ought to have taken the income of the claimant at Rs.12,500/- instead of Rs.12,000/-.

¶81

The doctor who is examined as P.W.2 has categorically deposed that the injured has 45.7% cognitive disability and as the disability percentage cannot exceed 100%, he attains overall disability rate of 100%. Ex.P.25 - the

¶82

14 -

¶83

MFA No. 5055 of 2020

¶84

Disability Certificates issued by him also reveals the same. Unfortunately the Tribunal has taken the disability as 15% to the whole body ignoring the material evidence on record. Though Sri Lakshminarasappa, learned Counsel for the Insurance Company sought to justify the 15% disability taken by the Tribunal on the ground that he is not the doctor, who treated the injured, the fact remains that he was one among the group of doctors, who had given treatment to the injured and has admitted that under Neurosurgery Department with a diagnosis of severe head injury on 2.11.2018, the injured was managed conservatively. The injured had multiple fractures of temporal and occipital bone with cerebellar contusion. He had also developed meningitis during the hospital stay. The doctor has not denied issuing of Disability Certificate Ex.P.25 by him and his signature in the said certificate. As such, it is just and proper to take disability of the injured at 50% to the whole body instead of 15% taken by the Tribunal. The Tribunal has further failed to notice that the injured being aged about 24/25 years old boy has met with the accident and has sustained head injury because of which, he has lost not only physical strength but also his memory power. He is virtually bed ridden and is

¶85

15 -

¶86

MFA No. 5055 of 2020

¶87

not in a position to converse with any human being as he was before. Apart from losing memory power, severe damage to face and back portion of skull, facial expression has been differed as it was before. He is now in a vegetative state and throughout his life, an attendant is required as stated by the mother of the injured claimant as she is now taking care. As such, the Tribunal has committed an error in not awarding just and proper compensation.

¶88

Taking into consideration the income of the injured claimant as Rs.12,500/-, his age as 25 years at the time of the accident, the appropriate multiplier would be 18 as per the dictum of the Hon'ble Supreme Court in the case of Sarla Verma and Others -vs- Delhi Transport Corporation and Another reported in (2009)2 SCC (crl) 1002 and disability to an extent of 50% to the whole body, the actual loss of income would come to Rs. 12,500 x 18 x 50% x 12= 13,50,000/- . Therefore, loss of future income would come to Rs. 13,50,000/- .

¶89

Admittedly, the Tribunal has committed an error in not awarding any compensation towards the marriage prospects of the injured. As such, taking into consideration the

¶90

16 -

¶91

MFA No. 5055 of 2020

¶92

age of the deceased as 25 years, it is just and proper to award

¶93

a sum of Rs.2,00,000/- towards loss of marriage prospects.

¶94

For the reasons stated above, we answer point

¶95

raised in the present miscellaneous first appeal in the affirmative holding that the claimant has made out a case for enhancement of compensation awarded by the Tribunal.

¶96

After re-assessing the entire material on record, the

¶97

claimants is entitled to the total compensation as under:

¶98

Loss of future income	Rs. 13,50,000/-
Pain and Agony	Rs. 1,50,000/-
Loss of amenities	Rs. 1,00,000/-
Rest, nourishment and attendant charges	Rs. 1,00,000/-
Medical Expenses	Rs. 1,70,900/-
Loss of income during laid-up	Rs. 1,00,000/-
Conveyance	Rs. 25,000/-
Future Medical Expenses	Rs. 50,000/-
Loss of Marriage prospects	Rs. 2,00,000/-
Total	Rs. 22,45,900/-
Less compensation awarded by the Tribunal	Rs. 7,95,700/-
enhancement of compensation	Rs. 14,50,200/-

¶99

In all, the claimant is entitled to a compensation of

¶100

Rs. 22,45,900/- (Rupees Twenty Two Lakhs Forty Five Thousand Nine Hundred Only) and after deducting the compensation of Rs.7,95,700/- (Rupees Seven Lakhs Ninety Five Thousand Seven Hundred only) already awarded by the

¶101

17 -

¶102

MFA No. 5055 of 2020

¶103

Tribunal, the enhancement of compensation would come to

¶104

Rs.14,50,200/- (Rupees Fourteen Lakhs Fifty Thousand Two Hundred only).

¶105

In view of the aforesaid reasons, we pass the

¶106

following:

¶107

ORDER

¶108

i) Miscellaneous First Appeal filed by the claimant for enhancement of compensation awarded by the Tribunal is allowed in-part;

¶109

ii) The impugned judgment and award dated 20.01.2020 passed in MVC No.399/2019 by the learned Senior Civil Judge and AMACT, Karkala, awarding the compensation of Rs.7,95,700/- with interest at the rate 8% per annum from the date of petition till deposit is hereby modified and the amount awarded by the Tribunal to the claimant is enhanced by Rs. 14,50,200/- ( Rs. 22,45,900 - Rs.7,95,700 =Rs.14,50.200/- ) (Rupees Fourteen Lakhs Fifty Thousand Two Hundred only) with 6% interest from the date of petition till realization;

¶110

iii) The Insurance Company is directed to deposit the compensation as stated supra within six weeks from the date of receipt of a copy of this judgment;

¶111

18 -

¶112

MFA No. 5055 of 2020

¶113

iv) After deposit of the enhanced compensation by the Insurance Company, 50% of the same shall be kept in Fixed Deposit in any of the Nationalised Bank in the name of the claimant for a period of five years with liberty to the claimant to withdraw the interest as and when it accrues and the balance amount shall be disbursed to the claimant immediately;

¶114

v) The amount in deposit shall be transmitted to the concerned Tribunal forthwith.

¶115

The amount, if any, deposited by the insurance company before this Court shall be transmitted to the jurisdictional Tribunal forthwith for realisation in favour of the claimant.

¶116

Office is directed to draw the award accordingly.

¶117

Sd/JUDGE

¶118

Sd/JUDGE

¶119

Nsu/-

Chethan K Shetty v. Mohammed Javed Sheikh

Case brief

What is this about?

What did the court decide?

Chethan K Shetty v. Mohammed Javed Sheikh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Susheela S Vs Sri K Yeriswamy

M Veeresh Kumar Vs Sri Tushar Girinath

Sri Ranganatha Jois Vs Smt Ragini Narayan

Lalithamma Vs Syed Nishad

Ms Salma Alias Saira Vs the Asst Registrar of Enquiries I

Raju J.K Vs the State by