Partly allowed

K.S. Chandrappa v. S.H. Durga Ram

Karnataka HC8 Jun 2022MFA/8525/2015

Case brief

AI extract

What is this about?

This judgment modifies two companion appeals regarding motor accident compensation. The High Court enhanced the notional income from Rs.4,000 to Rs.5,000 per month and recalculated loss of future income based on functional disability percentages (10% and 10% respectively) considering the appellants' occupations as cooli/agriculturist and factory worker. Conveyance charges were also enhanced.

What did the court decide?

Enhanced compensation of Rs.48,200 in MFA No.8524/2015 and Rs.73,000 in MFA No.8525/2015 along with interest at 6% per annum.

K.S. Chandrappa Vs S.H. Durga Ram — Medical Negligence | Karnataka HC (2022)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 08^TH DAY OF JUNE, 2022

¶4

BEFORE

¶5

THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

¶6

M.F.A.NO.8525/2015 C/W M.F.A.NO.8524/2015 (MV-I)

¶7

IN MFA NO.8525/2015

¶8

BETWEEN:

¶9

K.S. CHANDRAPPA, S/O LATE SIVAMURTHAPPA, AGED ABOUT 34 YEARS, R/O VADREMAPURA VILLAGE, BHADRAVATHI TALUK, R/O VINAYAK NAGAR, SHIMOGA-577 201.

¶10

… APPELLANT

¶11

(BY SRI K.V.SATEESH CHANDRA, ADVOCATE)

¶12

AND:

¶13

S.H. DURGA RAM, S/O S.H.SITARAM, AGED ABOUT 40 YEARS, R/O BELWAYA KATIWWARI, R/O BELWAUPUR TIWWARI, JODHAPUR DISTRICT-342001. RAJASTHAN STATE.

¶14

RANA SINGH, S/O SAVIH SINGH MAJOR, R/O LATRA OSIN, JODHAPUR-342001, RAJASTHAN STATE.

¶15

¶16

THE NEW INDIA ASSURANCE CO. LTD., JODHAPUR, RAJASTHAN STATE-342001, BRANCH AT SHIMOGA.

¶17

... RESPONDENTS

¶18

(BY SRI ASHOK N.PATIL, ADVOCATE FOR R3, R1-SERVED & UNREPRESENTED, NOTICE TO R2 IS DISPENSED WITH V/O DTD:-14/07/2021)

¶19

THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:22.05.2012 PASSED IN MVC NO.56/2010 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT-7, SHIMOGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

¶20

IN MFA NO.8524/2015

¶21

BETWEEN:

¶22

MALLESHAPPA G.D., S/O DEVENDRAPPA, AGED ABOUT 41 YEARS, AGRICULTRIST, R/O VADREMAPURA VILLAGE, BHADRAVATHI TALUK, R/O VINAYAK NAGAR, SHIMOGA-577 201.

¶23

…APPELLANT

¶24

(BY SRI K.V. SATEESH CHANDRA, ADVOCATE)

¶25

AND :

¶26

S.H. DURGARAM, S/O S.H.SITARAM, AGED ABOUT 40 YEARS, R/O BELWAUP LA BERA-TIWWARI, JODHAPUR DISTRICT-342001. RAJASTHAN STATE.

¶27

¶28

RANA SINGH, S/O SAVIH SINGH MAJOR, R/O LATRA OSIN, JODHAPUR-342001, RAJASTHAN STATE.

¶29

THE NEW INDIA ASSURANCE CO. LTD., JODHAPUR, RAJASTHAN STATE-342001, BRANCH AT SHIMOGA.

¶30

... RESPONDENTS

¶31

(BY SRI ASHOK N.PATIL, ADVOCATE FOR R3, NOTICE TO R1 IS DISPENSED WITH V/O DTD-14/07/2021, NOTICE TO R2 IS DISPENSED WITH V/O DTD-22/10/2021)

¶32

THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:22.05.2012 PASSED IN MVC NO.55/2010 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT-7, SHIMOGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

¶33

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

¶34

J U D G M E N T

¶35

These appeals are filed by the appellantsclaimants challenging the judgment and award dated 22.05.2012 passed in MVC.Nos.56/2009 and 55/2009 by II Addl. Senior Civil Judge and Addl. MACT-7, Shimoga.

¶36

¶37

2 Brief facts of the case are as under:

¶38

On 12.06.2009 at about 1.30 pm., the claimants

¶39

were going on Hero-Honda motor cycle bearing Reg.No.KA-14-V-7948 from Madikechilur village, towards Shimoga and the claimant in MVC.No.55/2010 was riding the motor cycle on the left side of the road by observing all traffic rules. But while they were going near Bullapura village, one lorry bearing Reg.No.RJ-19-GA-0162 belonging to 1^st respondent and the same was being driven by 2^nd respondent from opposite direction and came in a rash and negligent manner with dangerously high speed and dashed against the motor cycle. As a result of which, both of them fell down and sustained grievous injuries. Immediately after the accident, the claimant in MVC.No.55/2010 was taken to Mc.Hospital for treatment and he was admitted as an inpatient for more than 9 days and thereafter shifted to KMC Hospital, Manipal. There he took treatment as

¶40

¶41

inpatient for more than 2 months. The claimant in MVC.No.56/2010 was taken to Manipal Hospital and admitted therein as an inpatient for more than 3 months.

¶42

The claimants filed the claim petitions before the Tribunal seeking compensation. The Tribunal has partly allowed the petitions and awarded compensation of Rs.2,48,100/- to the claimant in MVC.No.55/2010 and Rs.1,55,000/- to the claimant in MVC.No.56/2010. Being aggrieved by the same, the present appeals are filed seeking enhancement of compensation.

¶43

Learned counsel for the appellantsclaimants submitted that in both the cases the amount of compensation awarded under each head is insufficient. Therefore, prays for enhancement of compensation.

¶44

¶45

Further submitted that the appellantclaimant in MFA.No.8524/2015 had suffered fracture of interior half of left patella and he is an agriculturist and cooli. Due to the fracture of left leg patella, certainly it affects his earning capacity. Therefore, the permanent disability at 9% pertaining to the left lower limb is on the lower side. Therefore, submitted that the functional disability shall be more than 15%. Therefore, requested to hold functional disability at 15%. Further the notional income is taken at Rs.4,000/- per month, which is not correct. The same has to be enhanced to Rs.5,000/- per month. Further submitted that the compensation awarded on other heads is also not adequate. Therefore, prays for enhancement of compensation.

¶46

Further learned counsel for the appellantclaimant in MFA.No.8525/2015 submitted that the appellant-claimant has suffered fracture of left femur bone and left patella bone and the doctor assessed

¶47

¶48

15% of permanent disability, but the Tribunal has awarded Rs.50,000/- only under the head “permanent disability” and the same is required to be enhanced by holding 15% as permanent disability. Even though, the appellant-claimant is working in the factory, but working in the factory requires more physical strength and he may not get promotional avenues. Therefore, on this aspect, it is submitted that atleast 15% of permanent disability is to be taken into consideration considering the nature of injuries sustained and the nature of avocation of the appellant as he was working in the factory. Therefore, prays for enhancement of compensation on other heads.

¶49

On the other hand, learned counsel for respondent No.3-Insurance Company submitted that the compensation awarded by the Tribunal on each head is proper and adequate. Therefore, there is no need to make enhancement of compensation. Hence, prays for dismissal of the appeal.

¶50

¶51

8. Further submitted that in

¶52

MFA.No.8524/2015 the percentage of permanent disability is taken at 9%, but the Insurance Company has not preferred any appeal and satisfied the amount. Therefore, the same is required to be confirmed without making any alternation. Therefore, prays for dismissal of the appeal.

¶53

Further submitted that the appellant has suffered only fracture of left leg patella and as per the doctors evidence, the fractured bone has been reunited properly. The Court has awarded the compensation under the head permanent disability by taking 9% of permanent disability, which is proper. Further submitted that the compensation awarded on other heads is also appropriate and correct. Therefore, prays for dismissal of the appeal.

¶54

Further learned counsel for respondent No.3-Insurance Company submitted that in

¶55

¶56

MFA.No.8525/2015 amount of compensation awarded on each head is correct and proper. Therefore, there is no need to make any interference. Further submitted that the appellant-claimant had continued to work in the factory even after the accident. Therefore, there is no future loss of income also, since the appellant – claimant is working in the factory and the Tribunal has awarded global compensation of Rs.50,000/- towards permanent disability, which is proper and correct and it does not make any interference.

¶57

Further submitted that, even though, the doctor has opined that the appellant-claimant has suffered 15% of permanent disability which is towards left lower limb and in respect of the whole body, 1/3^rd of disability is to be taken into consideration and some amount has to be awarded under the head permanent disability and accordingly, Rs.50,000/- is awarded by the Tribunal under this head. Therefore, there is no need to make any interference in the compensation

¶58

¶59

awarded by the Tribunal. Further submitted that the compensation awarded on other heads is also correct. Therefore, prays for dismissal of the appeal.

¶60

Further learned counsel for respondent No.3-Insurance Company has relied on the decision of the Division Bench of this Court in the case of Sri Subash Vs. The New India Assurance Co., Ltd., Rep. by its Manager and Others reported in ILR 2010 KAR 2439 and submitted that there is no loss of future income as the injured continued in the same job and thus, awarding of compensation under the head loss of future income does not arise. Therefore, submitted that, in the present case also, the appellant has submitted the physical fitness certificate and rejoined the work in the factory. Therefore, loss of future income does not arise. Accordingly, the Tribunal has not calculated the compensation under the head loss of future income, but what has been awarded globally at Rs.50,000/- towards permanent

¶61

¶62

disability is correct and therefore, prays for dismissal of the appeal.

¶63

MFA.NO.8524/2015 (MVC.NO.55/2010)

¶64

In the present case, the Tribunal has awarded compensation under various heads as

¶65

follows:-

¶66

1.	Pain and sufferings	Rs.	45,000-00
2.	Treatment Expenses	Rs.	51,250-00
3.	Permanent Disability (9% of Rs.4,000/-=360/-) Rs.360 x 12 x 15=	Rs.	64,800-00
4.	Conveyance charges	Rs.	5,000-00
5.	Loss of amenities	Rs.	30,000-00
6.	Loss of income during treatment and laid up period (Rs.4000 x 8 months)	Rs.	32,000-00
7.	Attendant and Nourishment charges.	Rs.	20,000-00
	Total	Rs.	2,48,050-00

¶67

As per Ex.P.5-wound certificate, the

¶68

appellant had sustained fracture of left leg patella. The appellant is an agriculturist and cooli. Therefore, considering the nature of injuries sustained, the amount of Rs.45,000/- awarded by the Tribunal under

¶69

¶70

the head “Pain and Suffering” is found to be proper. Further the amount of Rs.51,250/- awarded by the Tribunal under the head “Treatment Expenses” is as per the medical bills and receipts produced. Therefore, there is no need to make any interference in this regard.

¶71

Further it is submitted that the appellant was admitted in the hospital and was in bed rest for a period of eight months and he was required to travel from Shimoga District to Manipal for follow up treatment. Therefore, conveyance charges given at Rs.5,000/- is inadequate and the same needs to be enhanced. Hence, it is enhanced to Rs.20,000/- . Accordingly, it is awarded.

¶72

Further the amount of Rs.30,000/- is awarded under the head “loss of amenities”, which is found to be correct and the same is not required any interference. The compensation of Rs.20,000/-

¶73

¶74

awarded by the Tribunal towards “Attendant and Nourishment Charges” is also found to be correct and does not make any interference.

¶75

The accident was occurred on 12.06.2009.

¶76

The Tribunal has taken the notional income at Rs.4,000/- per month. As the appellant is an agriculturist and cooli, it is not expected to produce any documentary evidence. Therefore, the notional income of Rs.5,000/- is to be taken into consideration as per the notional income chart recognized by the Karnataka State Legal Service Authority. Therefore, the notional income is taken at Rs.5,000/- per month. Even though, the doctor has stated that the fractured bone has been re-united properly, but the doctor has denied that there is no problem for the claimant to carry out his work as he was carrying on prior to the date of accident. Therefore, the doctor has assessed the permanent physical disability at 9%, even though, towards the whole body, it is found to be proper, but

¶77

¶78

the same is fixed at 10% considering the nature of injuries sustained by the claimant. Therefore, the functional disability is taken at 10% considering the fact that the appellant was an agriculturist and cooli as he may find it difficult to work as an agriculturist and cooli. The appellant was aged 35 years as on the date of accident. Therefore, the appropriate multiplier would be “15”. Therefore, loss of future income due to disability is calculated and quantified as follows:

¶79

Rs.5,000/- x 10/100 x 15 x 12 = Rs.90,000/-

¶80

Further considering the submission of

¶81

learned counsel for the appellant with regard to loss of income during treatment period and laid up period calculated for 8 months by the Tribunal, the appellant is required compensation under the head “loss of income during laid up period and treatment period” for 8 months by holding income at Rs.5,000/-. Accordingly, Rs.40,000/- (Rs.5,000/- x 8 months) is

¶82

¶83

awarded under the head “loss of income during laid up period and treatment period”.

¶84

The appellant/claimant is entitled to the

¶85

compensation as follows:

¶86

1.	Pain and sufferings	Rs.	45,000-00
2.	Treatment Expenses	Rs.	51,250-00
3.	Loss of future income due to disability Rs.5,000/- x 10/100 x 15 x 12 =Rs.90,000/-	Rs.	90,000-00
4.	Conveyance charges	Rs.	20,000-00
5.	Loss of amenities	Rs.	30,000-00
6.	Loss of income during treatment and laid up period (Rs.5,000/- x 8 months)	Rs.	40,000-00
7.	Attendant and Nourishment charges.	Rs.	20,000-00
	Total	Rs.	2,96,250-00

¶87

MFA.No.8525/2015 (MVC.No.56/2010)

¶88

In the present case, the Tribunal has

¶89

awarded compensation under various heads as

¶90

follows:-

¶91

1.	Pain and sufferings	Rs.	50,000-00
2.	Treatment expenses	Rs.	5,000-00
3.	Permanent disability	Rs.	50,000-00
4.	Loss of amenities	Rs.	30,000-00
5.	Attendant and nourishment	Rs.	15,000-00

¶92

¶93

	charges.
6	Conveyance charges	Rs.	5,000-00
	TOTAL	Rs.	1,55,000-00

¶94

The appellant had sustained fracture of left femur bone and left patella bone. The compensation of Rs.50,000/- awarded under the head “Pain and Sufferings” is found to be proper. Hence, there is no need to make any interference. Further the amount of Rs.5,000/- awarded under the head “Treatment Expenses” is as per the record and it does not make any interference. Further the compensation amount of Rs.30,000/- awarded under the head “Loss of amenities” and Rs.15,000/- awarded under the head “Attendant and nourishment charges” are found to be proper and correct.

¶95

Further the compensation of Rs.5,000/awarded by the Tribunal under the head “conveyance charges” is on the lower side considering the fact that the appellant was required to go to follow up

¶96

¶97

treatment to Manipal Hospital. Therefore, conveyance charges is liable to be enhanced. Accordingly, a sum of Rs.20,000/- is awarded under the head

¶98

“conveyance charges”.

¶99

Further the Tribunal has globally awarded compensation of Rs.50,000/under the head “permanent disability”. Even though, the doctor stated that the appellant has sustained 15% of permanent physical disability, the Tribunal without making calculation on the permanent physical disability and without assigning any reason has awarded global compensation of Rs.50,000/- towards “permanent disability”. In the present case, the appellant had sustained fracture of left femur bone and left patella bone. The appellant might have continued the work in the factory, but working in the factory requires more physical strength. The appellant was 24 years as on the date of the accident and the doctor had stated that there is terminal 5 degree of restrictions of left

¶100

¶101

knee flexion movement. Therefore, even though, the appellant has continued to work in the factory after the accident, but due to fracture of femur bone and patella bone to the left leg and also there is restrictions of left knee flexion movement, he may not get promotional avenues in future. Therefore, considering the nature of injuries i.e., fracture of left femur bone and left patella bone and movement of left knee is restricted to certainly 5 degree, the functional disability is to be calculated at 10% by following the principles of law laid down in the case of Raj Kumar Vs. Ajay Kumar and Another reported in (2011) 1 SCC 343. Therefore, the loss of future income due to disability is calculated and quantified as follows:

¶102

Rs.5,000/- x 10% x 18 x 12 = Rs.1,08,000/-

¶103

The income of the claimant is to be taken at Rs.5,000/- per month as per the notional income chart recognized by the Karnataka State Legal Service Authority.

¶104

¶105

Thus, the appellant-claimant is entitled for

¶106

compensation as follows:

¶107

1.	Pain and sufferings	Rs.	50,000-00
2.	Treatment expenses	Rs.	5,000-00
3.	Permanent disability	Rs.	1,08,000-00
4.	Loss of amenities	Rs.	30,000-00
5.	Attendant and nourishment charges.	Rs.	15,000-00
6	Conveyance charges	Rs.	20,000-00
	TOTAL	Rs.	2,28,000-00

¶108

In MFA.No.8524/2015 (MVC.No.55/2010), the Tribunal has awarded compensation of Rs.2,48,050/-, but the appellant/claimant is entitled to total compensation of Rs.2,96,250/-. Hence, the appellant/claimant is entitled to enhanced compensation of Rs.48,200/- (Rs.2,96,250/- - Rs.2,48,050/-). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.48,200/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.

¶109

¶110

In MA.No.8525/2015 (MVC.No.56/2010), the Tribunal has awarded compensation of Rs.1,55,000/-, but the appellant/claimant is entitled to total compensation of Rs.2,28,000/-. Hence, the appellant/claimant is entitled to enhanced compensation of Rs.73,000/- (Rs.2,28,000/Rs.1,55,000/-). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.73,000/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.

¶111

Accordingly, I pass the following :

¶112

ORDER

¶113

Appeals are allowed-in-part .

¶114

The judgment and award dated 22.05.2012 passed in MVC.Nos.56/2009 and 55/2009 by II Addl. Senior Civil Judge and Addl. MACT-7, Shimoga, is modified.

¶115

¶116

The appellants-claimants are entitled to enhanced compensation of Rs.48,200/- in MFA.No.8524/2015 (MVC No.55/2010) and Rs.73,000/- in MFA.No.8525/2015 (MVC

¶117

No.56/2010) along with the rate of interest at 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.

¶118

Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith.

¶119

Draw award accordingly.

¶120

No order as to costs.

¶121

Sd/JUDGE

¶122

K.S. Chandrappa v. S.H. Durga Ram

Case brief

What is this about?

What did the court decide?

K.S. Chandrappa v. S.H. Durga Ram

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

National Insurance Co. Ltd. Vs Smt Rukmini

National Insurance Com. Ltd., Vs Venkateshappa

The Asst. Executive Engineer Vs Smt. Kempamma

P.C.Jacob Vs the Manager

Smt. Gayathramma Vs Chethan H. N. S/O Nagaraja H.S.

Malleshappa G .D Vs S.H. Durgaram