Allowed

T.E. Shivakumar v. C.K. Moula Sharief

Karnataka HC21 Nov 2022MFA/5064/2013

Case brief

AI extract

What is this about?

High Court allowed the Motor Accident Claim appeal in part. Modified the Tribunal's award, increasing compensation from 09,82,800 to 14,26,800 by adjusting notional income, future prospects multiplier, and heads for pain, amenities, and artificial limb.

What did the court decide?

Award modified to Rs.14,26,800/- with 6% interest from date of petition to deposit, excluding delayed interest.

T.E. Shivakumar Vs C.K. Moula Sharief — Motor Accident Claims | Karnataka HC (2022)

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

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.5064/2013 (MV-I)

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BETWEEN:

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T.E. SHIVAKUMAR S/O. E. ESWAR AGED ABOUT 32 YEARS R/AT THOOBINAKERE VILLAGE MADDUR TALUK MANDYA DISTRICT-571401. …APPELLANT

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(BY SRI S.S.HAVERI, ADVOCATE)

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AND:

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1 . C.K. MOULA SHARIEF AGE: MAJOR S/O. MAHABOOB SAB NO. 786, JULAPALYA VILLAGE BAGEPALLI TALUK CHIKKABALLAPURA DISTRICT-562 101.

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2 . RELIANCE GENERAL INS. CO. LTD., NO. 28, EAST WING, 5^TH FLOOR, CENTENARY BUILDING, M.G.ROAD BENGALURU-560 001 REPRESENTED BY ITS MANAGER

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3 . THE MANAGER NEW INDIA ASSRUANCE CO. LTD., NO. 327/5, 2^ND FLOOR

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INDOLEM HOUSE, MYSURU ROAD BENGALURU-560 098.

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4 . T.E. HARISH S/O. E. ESHWARAPPA AGED 32 YEARS R/AT NO. 6, 2^ND CROSS BYREVESHWARANAGAR NAGARABHAVI BENGALURU-560 072. ... RESPONDENTS

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(BY SRI H.C.BETSUR, ADVOCATE FOR R2; R1 IS SERVED & UNREPRESENTED; VIDE ORDER DATED 22.08.2016, NOTICE TO R3 & R4 IS DISPENSED WITH)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.06.2011 PASSED IN MVC NO.3140/2009 ON THE FILE OF THE 13^TH ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though this matter is listed for admission today, with the consent of both the learned counsel, it is taken up for final disposal.

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Heard the learned counsel for the appellant and learned

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counsel for respondent No.2-Insurance Company.

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This appeal is filed challenging the judgment and award dated 25.06.2011 passed in M.V.C.No.3140/2009 on the file of the Motor Accident Claims Tribunal, Court of Small Causes at Bengaluru (‘the Tribunal’ for short).

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The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.

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The factual matrix of the case of the claimant before the Tribunal is that he met with an accident. As a result, his right leg was amputated below the knee. In order to substantiate his contention, he examined himself as P.W.1 and examined the Doctors as P.W.3 and P.W.2, who assessed the disability to particular limb at 75% and 35% to whole body.

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The Tribunal, after considering both oral and documentary evidence placed on record, awarded compensation of Rs.9,82,800/- with interest at 6% per annum. Hence, the present appeal is filed by the claimant.

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The main contention of the learned counsel for the

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claimant is that the Tribunal committed an error in taking the disability at 60%. Though he has suffered comminuted fracture of right tibia and fibula with vascular deficit artillery injury of the

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knee joint injury to popliteal artery injury, amputation of right knee, fracture of left parasymphysis of the mandible, operation and open reduction and internal fixation of mandible. He has also suffered head injury of right frontal contusion and pneumocephalus, diffuse cerebral edema, right frontal and temporal fracture, the Tribunal has taken the disability only in respect of the limb and not taken the disability in respect of the head injury. Hence, it requires interference of this Court.

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Per contra, learned counsel for the respondent No.2Insurance Company would submit that the disability taken by the Tribunal at 60% is on the higher side and it is an amputation below the knee and not above the knee and the very contention of the learned counsel for the appellant that the Tribunal ought to have taken the functional disability and not considered loss of vision cannot be accepted. It is also contended that, with regard

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to loss of vision, no material is placed before the Tribunal and the same is also not proved.

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Having heard the respective counsel and also on perusal of the material available on record, the wound certificate which is marked as Ex.P5 discloses that he had suffered comminuted fracture of right tibia and fibula with vascular deficit artillery injury, fracture of left parasymphsis of mandible and partial loss of vision in both the eyes, head injury and other grievous injuries and immediately, he was shifted to Maddur Government Hospital and thereafter, he was taken to Sparsh Hospital, wherein he was inpatient from 09.02.2009 to 10.03.2009 almost for a period of one month and he has undergone surgery for the disability. Having taken note of the fact that he has suffered comminuted fracture of tibia and fibula and subsequently, amputation was also done below the knee and also considering the head injury sustained by the claimant, though the Doctor assessed the disability at 75% to right lower limb and 35% to whole body, the Tribunal reassessed the disability to the extent of 60% and by taking note of the

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functional disability of a person, who is gainfully employed for agriculture, I do not find any error committed by the Tribunal in taking the disability at 60% in a case of amputation below the knee. However, the Tribunal committed an error in taking the income at Rs.4,500/- per month. It is the accident of the year 2009 and the notional income would be Rs.5,000/- per month.

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The Apex Court in the recent judgment in

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ERUDHAYA PRIYA v. STATE EXPRESS TRANSPORT

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CORPORATION LTD. reported in 2020 SCC Online SC 601, in a case of 31 % disability, has added future prospects. Here is a case of disability to the extent of 60%. Having considered the nature of injuries sustained by the claimant and the fact that he

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is aged about 28 years, future prospects at 40% is to be added to the notional income of Rs.5,000/- per month. After adding the same, the income comes to Rs.7,000/- per month. Hence, taking the income at Rs.7,000/- per month, disability at 60% and the relevant multiplier of ‘17’, a sum of Rs.8,56,800/(7,000 x 12 x 17 x 60/100) is awarded towards loss of future income.

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The Tribunal awarded Rs.70,000/- towards pain and suffering. Considering the nature of the injuries sustained by the claimant and the fact that he was inpatient for a period of one month, it is appropriate to award Rs.75,000/- as against Rs.70,000/- awarded by the Tribunal.

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The Tribunal awarded Rs.27,000/- on the head of loss of income during laid up period. This Court having taken the notional income at Rs.5,000/- per month and he was inpatient for a period of one month and considering the nature of injuries sustained by the claimant, laid up period is considered as 6 months and a sum of Rs.30,000/- (5,000 x 6) is awarded as against Rs.27,000/- awarded by the Tribunal.

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The Tribunal has awarded Rs.50,000/- on the head of loss of amenities. Having considered the fact that the claimant is aged about 28 years and the disability to the extent of 60% and the fact that he has to lead rest of his life with the disability of 60%, a sum of Rs.1,00,000/- is awarded towards loss of amenities.

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The Tribunal awarded Rs.20,000/- on the head of

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future medical expenses. When his limb is amputated, he is in need of artificial limb and he has to lead rest of his life with the artificial limb, it is appropriate to award Rs.1,00,000/- on the head of artificial limb.

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The Tribunal has awarded Rs.2,65,000/- towards

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medical expenses which is based on the documentary evidence. Hence, it does not require any interference. Therefore, in all, the claimant is entitled for compensation of Rs.14,26,800/- as against Rs.9,82,800/- awarded by the Tribunal.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed in part. (ii) The impugned judgment and award of the Tribunal dated 25.06.2011 passed in M.V.C.No.3140/2009, is modified granting compensation of Rs.14,26,800/- as against Rs.9,82,800/- with interest at 6% per annum from the date of petition till deposit, excluding

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the interest for the delayed period of 502 days in filing the appeal, vide order dated 29.08.2016 passed by this Court.

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(iii) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.

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(iv) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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T.E. Shivakumar v. C.K. Moula Sharief

Case brief

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T.E. Shivakumar v. C.K. Moula Sharief

Case brief

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