Partly allowed

Sri Dileepa v. Sri Subramani Y

Karnataka HC23 Nov 2022MFA/8070/2018

Case brief

AI extract

What is this about?

The Karnataka High Court allowed the first appeal filed by a motorcycle accident victim to enhance compensation. The Court reassessed loss of future income, pain and suffering, and other damages based on the victim's 15% disability and profession as a mason.

What did the court decide?

Enhanced compensation of Rs. 5,68,600/- awarded instead of Rs. 3,44,500/-, including an additional Rs. 2,24,100/-, with 6% interest from the date of petition.

Sri Dileepa Vs Sri Subramani Y — Motor Accident Claims | Karnataka HC (2022)

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MFA No. 8070 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 8070 OF 2018 (MV-I)

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BETWEEN:

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SRI DILEEPA S/O RANGAIAH, AGED ABOUT 22 YEARS, R/O GALIGEKERE AT POST, HAGALAWADI HOBLI, GUBBI TALUK NOW RESIDING AT JANEHAR VILLAGE, KANDIKERE HOBLI, CN HALLI TALUK, TUMKUR DISTRICT - 572 214.

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Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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(BY SMT. BHAGEERATHI L, ADVOCATE)

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…APPELLANT

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AND:

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SRI SUBRAMANI Y S/O YARRAPPA, AGED ABOUT 52 YEARS, R/O YALLAPURA ARAKERE POST, TUMKUR TALUK AND DISTRICT - 572 101.

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THE REGIONAL MANAGER IFFCO TOKIO GENERAL INSURANCE CO. LTD.,

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MFA No. 8070 of 2018

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OFFICE AT

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SRI SHANTHI TOWERS No.141, 3^RD MAIN ROAD, KASTHURI NAGARA EAST OF NGEF LAYOUT BANGALORE - 560 016.

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…RESPONDENTS

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(BY SRI R SRINIVASA, ADVOCATE FOR R2 R1-NOTICE DISPENSED WITH V/O DTD. 9.11.2022)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:14/02/2018, PASSED IN MVC No.54/2016, ON THE FILE OF THE ADDITIONAL CIVIL JUDGE & JMFC., AND ADDITIONAL MACT, GUBBI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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The appeal is filed by the appellant-claimant

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challenging the judgment and award dated 14.02.2018 passed in MVC No.54/2016 by the Court of Addl. Senior Civil Judge & Addl. MACT, Gubbi, seeking enhancement of compensation.

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Brief facts of the case are as under:

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MFA No. 8070 of 2018

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On 01.09.2015 at about 12.45 p.m., the petitioner

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was proceeding in a two wheeler bearing Reg.No.KA-04EC-2670 as a pillion rider on C.N.Halli-Janehar road along with one Venkatesha. When they reached near Doddaiana

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Katte, bus bearing Reg.No.KA-06-C-3365 driven by its driver with high speed in a rash and negligent manner dashed against the motor cycle. Due to the said accident, the petitioner sustained injuries on femur of left thigh and all over the body. The appellant-claimant filed claim petition under Section 166 of MV Act claiming compensation. The Tribunal after appreciating the evidence on record has awarded compensation of Rs.3,44,500/- along with interest @ 6% from the date of petition till the date of realization.

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Heard the arguments advanced by the learned counsel on both sides and perused the records.

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The Tribunal has awarded compensation on various heads as follows:

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MFA No. 8070 of 2018

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1	Loss of future income	Rs. 1,62,000/-
2	Towards pain and suffering	Rs. 20,000/-
3	Towards nourishment and diet food	Rs. 10,000/-
4	Towards loss of amenities	Rs. 10,000/-
5	Towards medical expenses	Rs. 1,30,000/-
6	Towards loss of earning during the period of treatment	Rs. 7,500/-
7	Towards conveyance charges	Rs. 5,000/-
	TOTAL	Rs.3,44,500/-

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In the present case as per medical documentary evidence along with evidence of PW.2-doctor, it is proved that the appellant-claimant had sustained fracture of femur bone of left leg. The said injury is grievous in nature. Femur bone is a weight bearing bone. Hence, the compensation of Rs.20,000/- awarded under the head ‘pain and suffering’ is on lesser side and the same is enhanced to Rs.40,000/- .

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MFA No. 8070 of 2018

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The appellant-claimant being 19 years old boy

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was a mason by profession. PW.2-doctor had deposed that the appellant-claimant had suffered 15% disability towards whole body. The work of mason requires some physical strength and it also involves constant standing from morning till evening. The criteria for calculating functional disability is elaborately discussed by the Hon’ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another¹ at para Nos.12, 13 and 19, which reads as follows:

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“12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge

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1 reported in (2011) 1 SCC 343

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MFA No. 8070 of 2018

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Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.

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13. We may now summarise the principles discussed above :

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(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

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(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).

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(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

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MFA No. 8070 of 2018

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(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.”

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“19. The evidence showed that at the time of the accident, the appellant was aged around 25 years and was eking his livelihood as a cheese vendor. He claimed that he was earning a sum of Rs.3000/- per month. The Tribunal held that as there was no acceptable evidence of income of the appellant, it should be assessed at Rs.900/- per month as the minimum wage was Rs.891 per month. It would be very difficult to expect a roadside vendor to have accounts or other documents regarding income. As the accident occurred in the year 1991, the Tribunal ought to have assumed the income as at least Rs.1500/- per month (at the rate of Rs.50/- per day) or Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income.”

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Considering the nature of injuries sustained, disability and profession of the appellant-claimant, PW.2-doctor has correctly assessed that the appellant-claimant has suffered 15% of permanent disability. Accordingly, the same is considered as functional disability towards whole body.

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MFA No. 8070 of 2018

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The accident was occurred on

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01.09.2015. Therefore, the notional income of the appellant-claimant has to be taken at Rs.9,000/p.m. as recognized by the Karnataka State Legal

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Services Authority. The appropriate multiplier is 18. Therefore, the compensation under the head ‘loss of future income due to disability’ is

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reassessed and quantified as follows:

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9,000/-x15/100x18x12 = Rs.2,91,600/-

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Further, the compensation of Rs.10,000/awarded under the head ‘nourishment and diet food’ is on the lower side and the same is enhanced to Rs.25,000/-. The compensation of Rs.10,000/- awarded under the head ‘loss of amenities’ is on the lower side and the same is enhanced to Rs.40,000/- . The compensation of Rs.1,30,000/- is awarded under the head ‘medical expenses’ is as per the actual bills produced and the same is kept intact.

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MFA No. 8070 of 2018

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Due to the injuries sustained and disability

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occurred, the appellant-claimant might not have attended to the work atleast for a period of three months. The Tribunal has awarded the compensation under this head by taking the income of Rs.7,500/- p.m. for a period of one month. Hence, the compensation to be awarded under the head ‘loss of earning during the period of

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treatment’ is Rs.27,000/- (9,000x3months).

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The Tribunal has awarded compensation of Rs.5,000/-under the head ‘conveyance charges’ is on the lesser side and the same is enhanced to Rs.15,000/- .

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Thus, in all this Court determines the

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compensation as follows:

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1	Loss of future income	Rs. 2,91,600/-
2	Towards pain and suffering	Rs. 40,000/-
3	Towards nourishment and diet food	Rs. 25,000/-
4	Towards loss of amenities	Rs. 40,000/-

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10 -

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MFA No. 8070 of 2018

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5	Towards medical expenses	Rs. 1,30,000/-
6	Towards loss of earning during the period of treatment	Rs. 27,000/-
7	Towards conveyance charges	Rs. 15,000/-
	TOTAL	Rs.5,68,600/-

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Hence, the appellant-claimant is entitled for total enhanced compensation of Rs.5,68,600/- as against Rs.3,44,500/- awarded by the Tribunal and the appellant is entitled for an additional compensation of

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* **Rs.2,24,100/- *(Rs.5,68,600/- - *Rs.3,44,500/-) ,** 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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i. Appeal is allowed in part .

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ii. The judgment and award dated 14.02.2018 passed in MVC No.54/2016 by the Court of the Senior Civil Judge and Additional MACT, Gubbi is modified to the above extent.

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*Page No.10 is retyped and replaced vide Court order dated 17.01.2023.

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MFA No. 8070 of 2018

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iii. The appellant-claimant is entitled to an enhanced compensation of * **Rs.2,24,100/- *(Rs.5,68,600/- -**

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**_Rs.3,44,500/-),_* 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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iv. Registry is directed to return the Trial Court records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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v. Further, the appellant-claimant is not entitled for interest for the delay period of 113 days.

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vi. Costs made easy. vii. Draw award accordingly.

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Sd/JUDGE

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*Page No.11 is retyped and replaced vide Court order dated 17.01.2023.

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SSD

Sri Dileepa v. Sri Subramani Y

Case brief

What is this about?

What did the court decide?

Sri Dileepa v. Sri Subramani Y

Case brief

What is this about?

What did the court decide?

What the court decided

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