Partly allowed

Sri. Jayasheela Shetty v. Sri. Nagaraj Shetty

Karnataka HC2 Jun 2022MFA/5487/2017

Case brief

AI extract

What is this about?

The High Court allowed the Motor Accidents Appeal filed by an injured claimant seeking enhancement of compensation. The Court partially allowed the appeal, increasing the total compensation from Rs.9,32,970 to Rs.10,86,666 by adjusting values for pain and suffering, loss of amenities, and recalculating future earning capacity based on a higher notional income.

What did the court decide?

Enhanced total compensation awarded at Rs.10,86,666/-, representing an increase of Rs.1,53,696/- over the Tribunal's award, along with interest at 6% p.a.

Sri. Jayasheela Shetty Vs Sri. Nagaraj Shetty — 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 02^ND DAY OF JUNE, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A.NO.5487/2017 (MV-I)

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BETWEEN :

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SRI. JAYASHEELA SHETTY, S/O SUBBANNA SHETTY, AGED ABOUT 32 YEARS, R/O ANGALLI MANE, YELLUR GOLIHOLE POST, KUNDAPURA TALUK-576201. UDUPI DISTRICT.

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… APPELLANT

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(BY SRI. NAGARAJ HEGDE, ADVOCATE)

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AND :

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SRI. NAGARAJ SHETTY, S/O SUBBANNA SHETTY, AGE MAJOR, R/O SRI MOOKAMBIKA NILAYA, YELLUR VILLAGE & POST, KUNDAPURA TALUK, UDUPI DISTRICT-576201.

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THE UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, SRI LAXMI NARASIMHA COMPLEX, OPP:KSRTC DEPOT,

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NH-66, VADERHOBLI, KUNDAPURA TALUK, UDUPI DISTRICT-576201. REP. BY ITS BRANCH MANAGER

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... RESPONDENTS

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(BY SRI RAVISH BENNI, ADVOCATE FOR R2, R1-SERVED)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.01.2017 PASSED IN MVC NO.203/15 ON THE FILE OF THE SENIOR CIVIL JUDGE & MEMBER, ADDITIONAL MACT, KUNDAPURA, 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 FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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The present appeal is filed by the appellant/claimant challenging the judgment and award dated 17.01.2017 in MVC.No.203/2015 passed by the Senior Civil Judge and Addl. MACT, Kundapura.

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2. Brief facts of the case are as under:

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On 07.12.2014 at about 5.30 p.m., the claimant

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was a passenger in Autorickshaw bearing Reg.No.KA-20-C-8826 driven by its driver from Yalajith side towards Golihole side in a very high speed and rash and negligent manner, when the said vehicle reached near Golihole village, Kundapura Taluk, due to high speed and rash and negligent manner, the driver lost control over the same and roll down on the road, due to the said impact, claimant sustained grievous injuries. Immediately after the accident, the claimant was shifted to Adarsha Hospital, Udupi and admitted as an inpatient.

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The claim petition was filed by the appellant/claimant seeking compensation. The

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Tribunal has partly allowed the claim petition and awarded compensation of Rs.9,32,970/- with interest

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at 6% p.a., from the date of petition till the date of deposit. Being aggrieved by the same, the present appeal is filed before this Court.

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The learned counsel appearing for the appellant/claimant submitted that the amount of compensation awarded by the Tribunal is inadequate in considering the nature of injuries sustained by the appellant. Further submitted that from P.W.2 - doctor’s evidence and also from Ex.P.7-disability certificate, the appellant has completely lost use of his right hand. Therefore, the appellant had suffered 100% of disability considering his avocation as he was doing paint and centering work. Therefore, prays to enhance the compensation.

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Further submitted that the Tribunal has taken the income of the claimant at Rs.8,000/- per month, which is on the lesser side. Therefore, by

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considering the higher income per month, the compensation under the head loss of future earning capacity is to be enhanced. Further the amount of compensation awarded under the head “pain and suffering” and “loss of amenities” are on the lesser side. Therefore, prays for enhancement of compensation. Hence, prays to allow the appeal.

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On the other hand, learned counsel for respondent No.2-Insurance Company submitted that the percentage of disability taken by the Tribunal at 35% is correct. As per the evidence of doctor -P.W.2 and also Ex.P.7 – disability certificate, the appellant had suffered disability at 55% towards his right upper limb and 5% towards face. Therefore, the whole body disability is considered at 35%, which is on the higher side. Further the Tribunal has taken the income of the appellant at Rs.8,000/per month is correct considering the nature of avocation of the appellant,

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which needs no interference. Further submitted that out of the injuries suffered by the appellant, injury Nos.1 and 4 are only grievous in nature and other injuries are simple in nature. Therefore, the amount of compensation awarded under the head “pain and suffering” and “loss of amenities” are correct. Therefore, prays for dismissal of the appeal.

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7. The Tribunal has awarded the

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compensation under various heads as follows:

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Pain and sufferings	Rs. 75,000/-
Medical expenses, food and nourishment, attendant & conveyance charges	Rs.1,50,770/-
Los of income during laid up period	Rs. 96,000/-
Loss of future earning capacity	Rs.5,71,200/-
Loss of amenities	Rs. 40,000/-
Total	Rs.9,32,970/-

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8. Ex.P.3 is the wound certificate and the

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doctor -P.W.2 had stated the injuries as follows:

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“1. Avulsion laceration of 10 c.m. x 4 c.m x bone deep on the right frontal region of scalp with right

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sided black eye with C.T. scan showing depressed comminuted fracture of right frontal bone.

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Reddish abrasion of 4 c.m. x 3 c.m on the right ear.

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Laceration of 3 c.m., x 2 c.m, x muscle deep on the left cheek.

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Laceration of 1 c.m x 1 c.m. x muscle deep on the lower lip with underlying fracture of left lower central incisor teeth,

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Reddish contused abrasion of 6 c.m x 5 c.m. on the right shoulder,

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Reddish abrasion of 17 c.m., x 11 c.m., on the front of right side of chest,

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Reddish abrasion of 12 c.m x 7 c.m., on the right forearm

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Reddish contusion of 4 c.m., x 3 c.m., on the left elbow,

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Reddish abrasion of 8 c.m., x 5 c.m., on the lower 1/3^rd of outer aspect of right thigh,

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Reddish abrasion of 7 c.m., x 5 c.m. on the right knee,

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Reddish abrasion of 5 c.m., x 3 c.m., on the left knee”

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Doctor-P.W.2 had stated that the appellant

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had sustained loss of strength of right hand and it has become completely useless. Even the appellant is not able to do his day to day normal work. Therefore, the appellant had suffered disability of right upper limb. Even though, it appears that physically the appellant has upper right limb, in fact, he cannot use the right upper limb completely. Under these circumstances, the amount of compensation of Rs.75,000/- awarded under the head “pain and suffering” and Rs.40,000/awarded under the head “loss of amenities” is on the lesser side and the same needs to be enhanced. Even though, injury Nos.1 and 4 are grievous in nature and other injuries are simple in nature, but as discussed above, the fact is that the appellant has lost right upper limb completely, therefore, it is just and proper to award compensation of Rs.1,00,000/- towards “pain and suffering”. Further the appellant has lost

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right upper limb completely and as per the evidence of doctor -P.W.2, the appellant is not able to do his day to day normal work through his right hand, which caused inconvenience, discomfort and loss of enjoyment in life. Further, since the appellant has lost his right upper limb, he has to depend upon other family members for his daily routine work. Under these circumstances, the compensation awarded under the head “loss of amenities” has to be enhanced. Accordingly, Rs.1,00,000/- is awarded under the head “loss of amenities”.

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Further the Tribunal had taken the monthly income at Rs.8,000/- per month. Considering that the claimant was doing paint and centering work and the accident has caused in the year 2014 and as per the notional income recognized by the Karnataka State Legal Service Authority in the year 2014, the notional

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income ought to be taken at Rs.8,500/- per month. Therefore, while calculating the loss of future earning capacity, notional income at Rs.8,500/- is taken into consideration. Further, considering the nature of injuries sustained by the appellant and as per the evidence of the doctor-P.W.2 and based on Ex.P.7disability certificate, the functional disability at 35% taken by the Tribunal is found to be correct. P.W.2doctor has deposed that the appellant had suffered 55% of permanent disability towards right upper limb and 5% towards face. Therefore, the whole body disability taken by the Tribunal at 35% is found to be correct, which needs no interference. The appellant was aged 31 years as on the date of the accident. Ex.P.8 is the Aadhaar Card, which shows the date of year as 1984 and the age of the appellant would be 30 years as on the date of accident. Therefore, the appropriate multiplier is “17” as per the principles of

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law laid down in the case of Sarla Verma and Others –Vs- Delhi Transport Corporation and Another reported in AIR 2009 SCC 3104. Therefore, the compensation under the head “loss of future earning capacity” is calculated and quantified as follows:

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Rs.8,500/- x 35/100 x 17 x 12 = Rs.6,06,900/-

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The Tribunal has awarded compensation of Rs.1,50,770/- towards “medical expenses, food and nourishment, attendant and conveyance charges”. The appellant has produced Ex.P.6-medical bills amounting to Rs.1,27,766/-, but the Tribunal has included food and nourishment, attendant and conveyance charges etc., to the medical expenses, but the same has to be awarded separately. The appellant was admitted in the hospital for a period of 24 days and the appellant had taken the follow up treatment. Hence, the appellant is entitled atleast for Rs.50,000/- towards

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“food and nourishment, attendant and conveyance charges”. Accordingly, it is awarded. Further the Tribunal has awarded a sum of Rs.96,000/- towards “loss of income during laid up period” by considering the monthly income at Rs.8,000/- per month for 12 months. Therefore, considering the monthly income at Rs.8,500/per month for 12 months, the compensation under the head “loss of income during laid up period and treatment period” comes to Rs.1,02,000/- (Rs.8,500/- x 12).

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The appellant/claimant is entitled to the compensation as follows:

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Pain and sufferings	Rs.1,00,000/-
Medical expenses	Rs. 1,77,766/-
(medical expenses-Rs.1,27,766/- + food and nourishment, attendant & conveyance charges-Rs.50,000/-)
Los of income during laid up period	Rs.1,02,000/-
Loss of future earning capacity	Rs.6,06,900/-
Loss of amenities	Rs.1,00,000/-
Total	Rs.10,86,666/-

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The Tribunal has awarded compensation of Rs.9,32,970/-, but the appellant/claimant is entitled to total compensation of Rs.10,86,666/- . Hence, the appellant is entitled to enhanced compensation of Rs.1,53,696/- (Rs.10,86,666/- - Rs.9,32,970/-). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.1,53,696/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.

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Accordingly, I pass the following:

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ORDER

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Appeal is allowed-in-part .

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The appellant is entitled to enhanced

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compensation of Rs.1,53,696/- along with the rate of interest at 6% per annum from the date of petition

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till the date of realization, in addition to what has been awarded by the Tribunal.

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Draw award accordingly.

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No order as to costs.

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Sd/JUDGE

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PB

Sri. Jayasheela Shetty v. Sri. Nagaraj Shetty

Case brief

What is this about?

What did the court decide?

Sri. Jayasheela Shetty v. Sri. Nagaraj Shetty

Case brief

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