Partly allowed

Taju @ Thejashwini v. Sunil Kumar

Karnataka HC17 Nov 2022MFA/6316/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed two motor accident appeals in part, enhancing the compensation awarded by the Motor Claims Tribunal. It increased amounts for pain and suffering, future income loss based on disability, loss of amenities, and income during the laid-up period, while keeping medical expenses and some other heads intact.

What did the court decide?

Enhanced compensation of Rs.30,000/- for one claimant and Rs.1,87,400/- for the other, along with 6% per annum interest.

Taju @ Thejashwini Vs Sunil Kumar — Medical Negligence | Karnataka HC (2022)

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1 MFA NO.6316/2018 C/W MFA NO.6315/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF NOVEMBER, 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.6316/2018 C/W M.F.A.NO.6315/2018 (MV-I)

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IN MFA NO.6316/2018

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BETWEEN:

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TEJA @ THEJASHWINI D/O SIDDAGANGAIAH NOW AGED ABOUT 15 YEARS, APPELLANT IS SINCE MINOR R/BY HER N/G FATHER SIDDAGANGAIAH R/AT BIDALUR KALALGATTA POST, THYAMAGONDLU HOBLI, NELAMANGALA TALUK BANGALORE RURAL DISTRICT-562123

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...APPELLANT

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(BY SRI. RANGE GOWDA N R., ADVOCATE)

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AND:

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SUNIL KUMAR DEAD BY LRS

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SRI GOPINATHA PILLAI S/O FATHER NAME NOT KNOWN AGED MAJOR R/AT LAKSHMINILAYA, 1ST CROSS, KRISHNAGGAR BADDIHALLI MAIN ROAD, KYATHASANDRA TUMKUR-572104

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2 MFA NO.6316/2018 C/W MFA NO.6315/2018

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2 . THE DIVISIONAL MANAGER THE NEW INDIA ASSURANCE CO LTD D.O.XII, 1ST FLOOR, MAYUR COMPLEX KIADB MAIN ROAD, PEENYA BANGALORE-560058

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…RESPONDENTS

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(BY SRI. ASHOK N. PATIL, ADVOCATE FOR R2, R1-NOTICE DISPENSED WITH V/O DATED 18/02/2019)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.06.2018 PASSED IN MVC NO.4050/2016 ON THE FILE OF THE XXI ACMM & XXIII ADDITIONAL SMALL CAUSE JUDGE, BENGALURU (SCCH-25), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO.6315/2018

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BETWEEN:

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SIDDAGANGAIAH S/O. SIDDAPPA, NOW AGED ABOUT 42 YEARS, R/AT BIDALUR, KALALGATTA POST, THYAMAGONDLU HOBLI, NELAMANGALA TALUK, BANGALURU RURAL DISTRICT-562 123.

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...APPELLANT

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(BY SRI. RANGE GOWDA N R., ADVOCATE)

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3 MFA NO.6316/2018 C/W MFA NO.6315/2018

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AND:

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SUNIL KUMAR

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DEAD BY LRS.,

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SRI. GOPINATHA PILLAI, S/O. FATHER NAME NOT KNOWN, AGED MAJOR, R/AT LAKSHMINILAYA, 1^ST CROSS, KRISHNANAGAR, BADDIHALLI MAIN ROAD, KYATHASANDRA, TUMKUR-572 104.

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2 . THE DIVISIONAL MANAGER THE NEW INDIA ASSURANCE CO. LTD., D.O. XII, 1ST FLOOR, MAYUR COMPLEX, KIADB MAIN ROAD, PEENYA, BANGALORE-560 058.

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…RESPONDENTS

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(BY SRI. S.V. HEGDE MULKHAND, ADVOCATE FOR R2, R1-NOTICE DISPENSED V/O DATED 13/02/2019)

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THIS MFA FILED U/S 173(1) OF MV AGAINST THE JUDGMENT AND AWARD DATED 18.06.2018 PASSED IN MVC NO.4049/2016 ON THE FILE OF THE XXI ACMM & XIII ASCJ, BENGALURU[SCCH-25], PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE M.F.AsCOMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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4 MFA NO.6316/2018 C/W MFA NO.6315/2018

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J U D G M E N T

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Both the appeals are filed by the

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appellants/claimants challenging the judgment and award dated 18.06.2018 in MVC.Nos.4049/2016 and 4050/2016 passed by the MACT, Court of Small Causes, Bengaluru, for seeking enhancement of the compensation.

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Brief facts of the case are that, on 14.05.2014, the claimants were proceeding in TVS bearing Reg.No.KA-52-H-6100 on Tumkur-Bangalore Highway (NH-4). At that time, at about 3.30 p.m., near Kuluvanahalli U Turn, Thyamagondlu Hobli, Nelamangala Taluk, Bangalore Rural District, a Suzuki motor cycle bearing Reg.No.KA-06-EJ-7561 ridden by its rider came with high speed and in a rash and negligent manner and dashed against the TVS vehicle of the claimants. Due to which, they fell down and sustained grievous injuries.

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5 MFA NO.6316/2018 C/W MFA NO.6315/2018

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Heard the arguments from both sides and

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perused the records.

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IN MFA.No.6316/2018 (MVC.No.4050/2018):

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compensation under various heads as follows:

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1	Pain and suffering already undergone and to be suffered in future including loss of comforts amenities on account of disability	Rs.	3,00,000/-
2	Discomforts, inconvenience and loss of earnings of the parent during the laid up period	Rs.	5,000/-
3	Medical expenses	Rs.	72,042/-
4	Conveyance, attendant and nourishment etc.,	Rs.	15,000/-
	TOTAL	Rs.	3,92,042/-

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In the present case, the claimant was a minor girl aged 12 years as on the date of the accident. The claimant has suffered fracture of shaft of right femur. The doctor assessed that the claimant has suffered permanent physical disability at 35% towards right lower limb and 12% towards the whole

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6 MFA NO.6316/2018 C/W MFA NO.6315/2018

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body. Therefore, the Tribunal by following the judgment of the Hon’ble Supreme Court in the case of Master Mallikarjun v. Divisional Manager, The National Insurance Co. Ltd.,¹ has awarded compensation of Rs.3,00,000/- towards pain and suffering, which is found to be correct. Hence, it is kept in tact.

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The compensation of Rs.5,000/- awarded under the head discomforts, inconvenience and loss of earnings of the parent during the laid up period and Rs.15,000/- awarded under the head conveyance, attendant and nourishment etc., are found to be on the lesser side. Accordingly, compensation of Rs.50,000/- is awarded under the heads discomforts, inconvenience and loss of earnings of the parent during the laid up period and conveyance, attendant and nourishment etc.

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1 AIR 2014 SC 736

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7 MFA NO.6316/2018 C/W MFA NO.6315/2018

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The compensation of Rs.72,042/- awarded

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under the head medical expenses is found to be correct. Hence, it is kept in tact.

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Thus, in all, the appellant/claimant is

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entitled to enhanced compensation as under:

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1	Pain and suffering already undergone and to be suffered in future including loss of comforts amenities on account of disability	Rs.	3,00,000/-	Kept in tact
2	Discomforts, inconvenience and loss of earnings of the parent during the laid up period and conveyance, attendant and nourishment etc.,	Rs.	50,000/-
3	Medical expenses	Rs.	72,042/-	Kept in tact
	TOTAL	Rs.	4,22,042/-

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The Tribunal has awarded compensation of Rs.3,92,042/-, but the appellant/claimant is entitled to total compensation of Rs.4,22,042/- . Hence, the appellant/claimant is entitled to enhanced compensation of Rs.30,000/- (Rs.4,22,042/Rs.3,92,042/-). Therefore, the appellant/claimant is

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8 MFA NO.6316/2018 C/W MFA NO.6315/2018

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entitled to enhanced compensation of Rs.30,000/- along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.

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IN MFA.No.6315/2018(MVC.No.4049/2016)

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The Tribunal has awarded the

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compensation under various heads as follows:

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1	Pain and suffering	Rs.	40,000/-
2	Medical expenses	Rs.	8,65,241/-
3	Loss of income during laid up period	Rs.	16,000/-
4	Loss of future income	Rs.	2,01,600/-
5	Loss of future amenities and happiness	Rs.	20,000/-
6	Attendant, conveyance, food and nourishment charges	Rs.	20,000/-
7	Future medical expenses	Rs.	25,000/-
		Rs.	11,87,841/-

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The wound certificate, discharge summery

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and other medical evidences prove the fact that the claimant suffered fracture of tibia and fibula bones of

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9 MFA NO.6316/2018 C/W MFA NO.6315/2018

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right leg, fracture of both bones of right forearm and fracture of shaft of right leg femur, which is grievous in nature. Therefore, the compensation of Rs.40,000/awarded under the injury, pain and suffering is on the lesser side and the same is enhanced to Rs.75,000/-

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awarded under the head medical expenses is as per the actual bills produced, which needs no interference. Hence, it is kept in tact.

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The claimant is stated to be a coolie.

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Therefore, in the absence of proof of income, notional income at Rs.8,500/- per month is to be taken into consideration as per the Notional Income Chart recognized by the Karnataka State Legal Service Authority. The claimant has suffered several fractured injuries as stated above. Therefore, the doctor has stated that the claimant has suffered 49% of disability

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10 MFA NO.6316/2018 C/W MFA NO.6315/2018

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towards the right lower limb and 20% of disability towards whole body. Therefore, considering the factures to the right hand and femur bone, fracture to the tibia and fibula bones of right leg, it is appropriate to take functional disability at 20% as per the principle of law laid down by the Hon’ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another² . The claimant is aged 40 years as on the date of the accident. Therefore, the appropriate multiplier applicable is 15. Hence, the compensation under the head loss of future earning capacity due to disability is re-assessed and quantified as follows:

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Rs.8,500/- x 20% x 15 x 12=Rs.3,06,000/-

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Accordingly, compensation of Rs.3,06,000/- is

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awarded under the head loss of future earning capacity due to disability.

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2 (2011) 1 SCC 343

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11 MFA NO.6316/2018 C/W MFA NO.6315/2018

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The claimant has suffered fractures to the right hand and femur bone, fracture to the tibia and fibula bones of right leg. The claimant was admitted in the hospital as inpatient for a period of 60 days. The claimant working as a coolie might have not attended for his work for a period of four moths. Hence, compensation of Rs.34,000/- (Rs.8,500/- p.m., x 4 months) is awarded under the head loss of income during laid up period.

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The compensation of Rs.20,000/- awarded under the head loss of future amenities and happiness is on the lower side and the same is enhanced to

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Rs.50,000/-.

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The compensation amount awarded under other heads is found to be just and proper. Hence, it is kept in tact.

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12 MFA NO.6316/2018 C/W MFA NO.6315/2018

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Thus, in all, the appellant/claimant is

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entitled to enhanced compensation as under:

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1	Pain and suffering	Rs.	75,000/-
2	Medical expenses	Rs.	8,65,241/-	Kept in tact
3	Loss of income during laid up period	Rs.	34,000/-
4	Loss of future income	Rs.	3,06,000/-
5	Loss of future amenities and happiness	Rs.	50,000/-
6	Attendant, conveyance, food and nourishment charges	Rs.	20,000/-	Kept in tact
7	Future medical expenses	Rs.	25,000/-	Kept in tact
		Rs.	13,75,241/-

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The Tribunal has awarded compensation of Rs.11,87,841/-, but the appellant/claimant is entitled to total compensation of Rs.13,75,241/- . Hence, the appellant/claimant is entitled to enhanced compensation of Rs.1,87,400/- (Rs.13,75,241/- - Rs.11,87,841/-). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.1,87,400/- along with interest at the rate of 6% per annum from the date of petition till the date of realization, in

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13 MFA NO.6316/2018 C/W MFA NO.6315/2018

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addition to what has been awarded by the Tribunal. Accordingly, I proceed to pass the following

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ORDER

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MFA.Nos.6316/2018 and 6315/2018 filed by the appellants/claimants are allowed-in-part .

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The impugned judgment and award dated 18.06.2018 in MVC.Nos.4049/2016 and 4050/2016 passed by the MACT, Court of Small Causes, Bengaluru, is modified to the extent that the appellant/claimant in MFA.No.6316/2018 is entitled to enhanced compensation of Rs.30,000/- and appellant/claimant in MFA.No.6315/2018 is entitled to enhanced compensation of Rs.1,87,400/- along with interest at 6% p.a., from the date of petition till its 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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14 MFA NO.6316/2018 C/W

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Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith.

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Sd/-

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Taju @ Thejashwini v. Sunil Kumar

Case brief

What is this about?

What did the court decide?

Taju @ Thejashwini v. Sunil Kumar

Case brief

What is this about?

What did the court decide?

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