Partly allowed

Mukunda v. Kumara

Karnataka HC28 Oct 2022MFA/695/2021

Case brief

AI extract

What is this about?

The High Court allowed the Motor Claims Tribunal appeal partly, enhancing the compensation awarded to the claimant in a road accident case. The court modified the award to include compensation for loss of future income, future prospects, and future medical expenses for implant removal.

What did the court decide?

Enhanced the total compensation to Rs.17,19,729/-. Ordered the insurance company to deposit the amount with interest.

Mukunda Vs Kumara — 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 28^TH DAY OF OCTOBER 2022

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BEFORE

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THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD

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MFA No. 695 OF 2021(MV)

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BETWEEN

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MUKUNDA S/O R. CHIKKEGOWDA AGED ABOUT 52 YEARS R/AT SRIRAMPURA CHUNCHANAKATTE HOBLI K.R. NAGARA TALUK MYSURU DISTRICT 571602.

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...APPELLANT

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(BY SRI.MANJUNATH N D., ADV.)

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AND

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1 . KUMARA S/O KULLEGOWDA AGED ABOUT 38 YEAWRS R/AT CHIKKANAYAKANAHALLI VILLAGE MYSURU DISTRICT 570019.

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2 . GOVINDEGOWDA S/O MUTEGOWDA AGED ABOUT 50 YEARS R/AT HALEYURU VILALGE K.R. NAGARA TALUK MYSURU DISTRICT 571602.

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3 . TATA AIG GENERAL INSURANCE CO LTD 1ST FLOR SUNNY CENTRE NO. 374, NEW KALIDASA ROAD MYSURU 570002.

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…RESPONDENTS

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(BY SRI.B.PRADEEP, ADV. FOR R3: NOTICE TO R1 & R2 IS DISPENSED WITH V/O DATED: 11.07.2022)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.09.2020 PASSED IN MVC NO. 414/2019 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 173(1) of Motor

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Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant being aggrieved

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by the judgment dated 18.9.2019 passed by MACT, Mysuru in MVC 414/2019.

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2. Facts giving rise to the filing of the appeal

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briefly stated are that on 17.12.2018 when the claimant was proceeding on motorcycle bearing registration No.KA-45-J-3634 on Chunchanakatte Hanasoge Road, near Hosuru lake, Salekoppalur cross, K.R.Nagara Taluk, at that time, Tractor bearing chasis No.MBNADAJLLJZF00662 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.

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4. On service of notice, the respondents

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appeared through counsel and filed written statements

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in which the averments made in the petition were denied.

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On the basis of the pleadings of the parties,

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the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.Kiran Kumar was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P311. On behalf of the respondents, two witnesses were examined as RWs-1 and 2 and got exhibited documents namely Ex.R1 to Ex.R8. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.14,44,515/- along

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with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, the present appeal has been filed.

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The learned counsel for the claimant has raised the following contentions:

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Firstly, even though the claimant claims that he was doing agricultural work and earning Rs.2,00,000/to Rs.2,50,000/- per annum and produced Ex.P-300 to 305 RTC extracts and in addition doing milk vending business and earning Rs.70,000/- to Rs.80,000/- per month and produced Ex.P-306, Copy of the Register of encouragement fund, but the Tribunal has taken the notional income as merely as Rs.7,470/- per month.

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Secondly, the claimant has examined the doctor as PW-2. The doctor in his evidence has stated that the claimant has suffered disability of 73% to particular limb. Due to the disability, he is unable to

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do his day to day work. He was having 7 cows and since he was unable to maintain them, he has sold 5 cows and there is loss of income due to the milk vending business. There is functional disability of 100% and claimant is entitled for future prospects.

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But the Tribunal has failed to consider future prospects. In support of his contention, he has relied upon the decision of the Apex Court in the case of ERUDHAYA PRIYA vs. STATE EXPRESS TRANSPORT CORPORATION LTD. 2020’ SCC Online SC 601 and in the case of ‘PAPPU DEO

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YADAV vs. NARESH KUMAR AND OTHERS’ AIR 2020 SC 4424.

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Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 24 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain

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during treatment. Considering the same, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are on the lower side. Further, the claimant has to undergo surgery for removal of implants. But the Tribunal has not granted any compensation under the head of 'future medical expenses'. Hence, he sought for allowing the appeal.

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On the other hand, the learned counsel for the Insurance Company has raised following counter contentions:

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Firstly, even though the claimant claims that he was doing agricultural work and earning Rs.2,00,000/to Rs.2,50,000/- per annum and produced Ex.Ps-300 to 305 RTC extracts and in addition doing milk vending business and earning Rs.70,000/to Rs.80,000/- per month and produced Ex.P-306, Copy of the Register of encouragement fund,Rs.20,000/-

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per month, but he has failed to prove that there is loss of income due to agricultural work and further he has neither examined the author of Ex.P-306 nor produced any bank statement to prove that there is loss of income due to milk vending business. Therefore, the Tribunal has rightly assessed the income of the claimant notionally.

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Secondly, the Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 24%. Since, he has failed to prove that there is functional disability, the Tribunal has rightly not granted any compensation for future prospects.

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Thirdly, the doctor has not deposed that the claimant requires to undergo surgery for removal of implants. Therefore, the Tribunal has rightly not granted compensation for 'future medical expenses'.

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Fourthly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the overall compensation awarded by the Tribunal is just and reasonable and it does not call for interference. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties

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and perused the judgment and award of the Tribunal.

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It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver.

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The claimant claims that he is aged about 50 years and he is doing agricultural work and earning Rs.2,00,000/- to Rs.2,50,000/- per annum and produced Exs.P-300 to 305 RTC extracts and in addition doing milk vending business and earning

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Rs.70,000/- to Rs.80,000/- per month and produced Ex.P-306, Copy of the Register of encouragement fund. But he has failed to prove that there is loss of income due to agricultural work and further he has neither examined the author of Ex.P-306 nor produced any bank statement to prove that there is loss of income due to milk vending business. Therefore, in the absence of proof of income, notional income has to be assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken place in the year 2018, the notional income has to be taken at Rs.12,500/- p.m.

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As per wound certificate, the claimant has sustained multiple fracture injuries to left lower limb, left thigh fracture, femur with intra articular extension to knee, bony deformity of mid and lower part of left thigh with 1x1 cm punctured bleeding wound over lower third front of left thigh over medial aspect of

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knee region around 2x4 bone dept crushed lacerated wound over mid part of left leg, bleeding with crushed muscle tissues, bony deformity, fracture of both bone left leg. The doctor in his evidence has stated that the claimant has suffered disability of 73% to particular limb. Therefore, taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate, the Tribunal has rightly taken the whole body disability at 24%.

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The claimant has sustained grievous injuries and he is an agriculturist and doing milk vending business for his livelihood. He was having 7 cows and since he was unable to maintain them, he sold 5 cows. The said disability has affected his earning capacity and there is loss of income. Since there is functional disability, in view of the law laid down by the Hon’ble Apex Court in the case of ERUDAYA PRIYA (supra) and PAPPU DEO YADAV (supra), the claimant is entitled for

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future prospects. In view of the law laid down by the Hon’ble Apex Court in the case of ‘NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS’ AIR 2017 SC 5157, addition of 10% of the income of the claimant towards future prospects has to be considered. Hence, the monthly income of the claimant is assessed at Rs.13,750/(Rs.12,500+10%). The claimant is aged about 50 years at the time of the accident and multiplier applicable to his age group is ‘13’. Thus, the claimant is entitled for compensation of Rs.514,800/(Rs.13,7501213*24%) on account of 'loss of future income'.

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The nature of injuries suggests that the claimant must have been under rest and treatment for a period of 3 months. Therefore, the claimant is entitled for compensation of Rs.37,500/- (Rs.12,500*3 months) under the head ‘loss of income during laid up period’.

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Having regard to the nature of injuries and evidence of the PW-1 and doctor, I am inclined to award a sum of Rs.25,000/- towards ‘future medical expenses’ for removal of implants.

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Considering the nature of injuries, the

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compensation awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the

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following compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	70,000	70,000
Medical expenses	997,429	997,429
Food, nourishment, conveyance and attendant charges	5,000	5,000
Loss of income during	22,410	37,500
laid up period
Loss of amenities	70,000	70,000
Loss of future income	279,676	514,800
Future medical expenses	0	25,000
Total	14,44,515	17,19,729

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In the result, the appeal is allowed in part . The judgment of the Claims Tribunal is modified.

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The claimant is entitled to a total compensation of Rs.17,19,729/-.

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The Insurance Company is directed to deposit the enhanced compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of

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six weeks from the date of receipt of copy of this judgment .

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Sd/JUDGE

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Mukunda v. Kumara

Case brief

What is this about?

What did the court decide?

Mukunda v. Kumara

Case brief

What is this about?

What did the court decide?

What the court decided

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