Partly allowed

Ravikumar v. v J Jarj

Karnataka HC21 Jul 2023MFA/1191/2018

Case brief

AI extract

What is this about?

In appeals against a tribunal award of Rs.2.46 lakhs for a motor accident injury, the court dismissed the insurer's claim of false implication due to date discrepancies in police records. The insurance appeal was dismissed. The injury appeal was partly allowed, enhancing damages by Rs.50,280 for loss of amenities and adjusting future income calculations based on established wage guidelines.

What did the court decide?

Appeal by petitioner allowed in part by enhancing compensation to Rs.2,96,250/-; appeal by Insurance Company dismissed.

Ravikumar Vs v J Jarj — Execution and Attachment | Karnataka HC (2023)

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NC: 2023:KHC:25487 MFA No. 1191 of 2018 C/W MFA No. 7799 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 1191 OF 2018 (MV-I)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 7799 OF 2017 (MV-I)

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IN M.F.A. NO. 1191 OF 2018

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BETWEEN:

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RAVIKUMAR, S/O. GOVINDARAJ, AGED ABOUT 33 YEARS, VEGETABLE MERCHANT, R/O: 4TH CROSS, SHESHADRIPURAM, SHIVAMOGGA CITY, SHIVAMOGGA DISTRICT PIN-577 201.

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…APPELLANT

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(BY SRI VISHWANATHA POOJARY K, ADVOCATE)

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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AND:

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V J JARJ, S/O L.V.V. JAANI, AGED ABOUT 62 YEARS, R/O: OWNER OF VIJAY TAIRS SHOP, 3RD CROSS, GANDHINAGAR, SHIVAMOGGA, SHIVAMOGGA DISTRICT- 577 201.

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YUSUF KHAN, S/O KHADAR KHAN,

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NC: 2023:KHC:25487 MFA No. 1191 of 2018 C/W MFA No. 7799 of 2017

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AGED ABOUT 60 YEARS, DRIVER,

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R/O: 3RD CROSS, OPP. QUBHA MASIDI, R.M.L. NAGAR, SHIVAMOGGA CITY, SHIVAMOGGA DISTRICT-577 201.

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THE MANAGER, NATIONAL INSURANCE CO. LTD., 1ST FLOOR, S.S.COMPLEX, B.H.ROAD, SHIVAMOGGA, SHIVAMOGGA DISTRICT-577 201.

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…RESPONDENTS

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(BY SRI B.A RAMAKRISHNA, ADVOCATE FOR R3; NOTICE TO R1 & R2 IS D/W V/O DATED 18.02.2022)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.04.2017 PASSED IN MVC NO.1108/2014 ON THE FILE OF 1ST ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT-VII, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A. NO 7799 OF 2017

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BETWEEN

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NATIONAL INSURANCE CO. LTD., 1ST FLOOR, S.S.COMPLEX, B.H.ROAD, SHIVAMOGGA, NOW BY ITS REGIONAL OFFICE, NO.144, SUBHARAM COMPLEX, M.G.ROAD, BANGALORE-560 001. BY ITS AUTHORISED SIGNATORY.

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...APPELLANT

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(BY SRI B A RAMAKRISHNA, ADVOCATE)

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AND:

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NC: 2023:KHC:25487 MFA No. 1191 of 2018 C/W MFA No. 7799 of 2017

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1 . SRI RAVIKUMAR,

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S/O. GOVINDARAJ, AGED ABOUT 32 YEARS, VEGETABLE MERCHANT, R/O: 4TH CROSS, SHESHADRIPURAM, SHIVAMOGGA CITY-577201.

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2 . SRI V J JARJ, S/O L.V.V.JAANI, AGED ABOUT 61 YEARS, R/O. OWNER OF VIJAY TAIRS SHOP, 3RD CROSS, GANDHINAGAR, SHIVAMOGGA-577 201.

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3 . MR. YUSUF KHAN, S/O KHADAR KHAN, AGED ABOUT 59 YEARS, R/O.3RD CROSS, OPP:QUBHA MASIDI, R.M.L. NAGARA, SHIVAMOGGA CITY-577 201.

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…RESPONDENTS

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(BY SRI VISHWANATHA POOJARY.K, ADVOCATE FOR R1; SRI S.V PRAKASH, ADVOCATE FOR R2; NOTICE TO R3 IS D/W V/O DATED 12.03.2018)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.04.2017 PASSED IN MVC NO.1108/2014 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT-7, SHIVAMOGGA, AWARDING COMPENSATION OF RS.2,46,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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THESE APPEALS COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2023:KHC:25487 MFA No. 1191 of 2018 C/W MFA No. 7799 of 2017

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JUDGMENT

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MFA No.1191/2018 preferred by the injured petitioner and MFA No.7799/2017 preferred by the Insurance Company are directed against the judgment and award dated 15.04.2017 passed in MVC NO.1108/2014 by the learned I Additional Senior Civil Judge and Additional MACT-VII, Shivamogga, whereby, a sum of Rs.2,46,000/together with interest at 6% p.a. has been awarded to the injured petitioner in the road traffic accident.

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Brief facts of the case are:

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That on 03.10.2014 at around 8.30 a.m., in the

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morning, the petitioner Ravikumar was moving with his vegetable cycle for the sale of vegetables near Gandhi School, Sheshadripuram, Shivamogga, from 4th Cross to 5th Cross and respondent No.2 drove his TATA Goods Vehicle bearing Reg.No.KA-14/A-9846 in a rash and negligent manner and dashed against him from behind and caused the accident. After the accident, petitioner was

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admitted to Ashoka Sanjeevini Hospital, Shivamogga,

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wherein, he took treatment as in-patient for a period of one week. It was further contended that, he has suffered

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deglazing injury and deep abrasion over dislocation of right foot, 'list anis' fracture, dislocation of right foot, comminuted fracture base of 2nd, 3rd and 4th MT (meta tarsal) simple fracture of base 1st MT and neck of 5th MT and other injuries and the petitioner has already spent more than Rs.1,50,000/- towards treatment and Doctors have estimated that the petitioner is in need of future medical expenses of Rs.1,00,000/-. It was further contended that, the petitioner is a vegetable vendor and was having income of Rs.15,000/- per month and due to the injuries sustained in the accident, he is not in a position to do his day to day work as he has lost his right leg and wire, screws and nuts have been inserted and skin transplantation was done from thigh to right leg and thus, the petitioner has incurred heavy medical expenses and the petitioner is unable to walk and even in order to stand up and to walk, is using crutches and the doctors have also advised to undergo another two-three surgical procedures.

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NC: 2023:KHC:25487 MFA No. 1191 of 2018 C/W MFA No. 7799 of 2017

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The petitioner has stated that the accident took place only due to the rash and negligent act of the respondent No.2 and the respondent No.1 being the owner and the respondent No.3 being the insurer, are jointly and severally liable to pay compensation to the petitioner and therefore, prayed for adequate compensation.

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On issuance of notice by the Tribunal,

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respondents Nos.1 and 2 have remained absent and hence, they were placed exparte. The respondent No.3Insurance company has appeared through its counsel and filed its objection statement denying the petition averments. However, it has admitted that the vehicle bearing No.KA-14/A-9846 was duly insured with it as on

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the date of the accident and with regard to the liability, it has stated that same is subject to terms and conditions of the policy possessed by the owner of the vehicle. It has also denied that the accident has taken place due to the alleged negligent act on the part of respondent No.2 and in the said accident, the petitioner has suffered grievous

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injuries, taken treatment and spent Rs.1,50,000/- towards medical expenses. It has also denied that the petitioner is in need of Rs.1,00,000/- for future medical expenses and that he has suffered permanent disability. Therefore, it sought to dismiss the petition.

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On the basis of the above pleadings, the Tribunal framed appropriate issues. The petitioner was examined as PW1 and examined three witnesses as PWs 2 to 4 and got marked Exs.P1 to P26. The official of the respondent

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No.3, was examined as RW1 and marked Exs.R1 and 2.

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After hearing learned counsel for both the parties,

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the Tribunal has awarded a sum of Rs.2,46,000/- as compensation under the following heads and directed the

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insurance company to deposit the same:

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Medicalexpenses	Rs.53,870/-
Attendant, food, nourishment and conveyance	Rs. 5,000/-
Pain and sufferings	Rs. 35,000/-
Loss of futureincome	Rs.1,07,100/-
Loss of income during the laid up period	Rs. 45,000/-
Total	Rs.2,45,970/-
Rounded offto	Rs.2,46,000/-

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NC: 2023:KHC:25487 MFA No. 1191 of 2018 C/W MFA No. 7799 of 2017

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Being aggrieved by the said judgment and award, injured petitioner has filed MFA No.1191/2018 contending that the compensation awarded by the Tribunal is low and there is a room of enhancement of the compensation.

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Aggrieved by the said judgment and award, the Insurance Company has filed MFA No.7799/2017 contending that there is a discrepancy in respect of the date of the accident between the medical records and the police papers and the vehicle has been falsely implicated in the case. Therefore, the insurance Company has contended that the petition against it should have been dismissed by the Tribunal.

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On issuance of notice, the rival parties have appeared before this Court. The Tribunal records have been secured on admitting the appeal.

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Heard the learned counsel for the injured petitioner and learned counsel for insurance company and perused the Tribunal records.

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NC: 2023:KHC:25487 MFA No. 1191 of 2018 C/W MFA No. 7799 of 2017

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The learned counsel appearing for the petitioner submitted that the compensation awarded by the Tribunal is not adequate and in fact, the Tribunal has not at all considered the compensation to be awarded under the head of 'loss of amenities in life' and the notional income considered by the Tribunal is abysmally low. He has also submitted that the petitioner had suffered deep abrasion over dislocation of the right foot, list anis fracture, comminuted fracture base of 2nd, 3rd and 4th MT simple fracture of base 1st MT and neck of 5th MT and other injuries and the compensation awarded by the Tribunal is overlooking the disability suffered by the petitioner on account of the above injuries sustained by him.

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Per contra, learned counsel appearing for the

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Insurance Company has contended that PWs.3,4 and other chargesheet witnesses say that the accident was on '03-10-2014', but they had given statement before the police that the accident was on '5-10-2014' and accordingly, chargesheet was filed by the police. He

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10 - NC: 2023:KHC:25487 MFA No. 1191 of 2018 C/W MFA No. 7799 of 2017

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contends that, except the wound certificate, all other police papers show that the accident was on '5-10-2014' and therefore, the implication of the vehicle insured by the insurance company was fallacious. Hence, he has sought for dismissal of the petition.

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I have gone through the evidence available on record and the documents produced by both the sides.

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The Ex.P12- discharge summary show that the petitioner was admitted to the hospital on '3-10-2014'. The other documents of Ashoka Sanjeevini Hospital of Shivamogga, show that the petitioner was admitted to the hospital on '3-10-2014'. The wound certificate produced by the petitioner which is at Ex.P8 show that the petitioner was examined by the said hospital on '3-10-2014 itself'. Further, the case sheet of the hospital produced at Ex.P22 also show that the petitioner was admitted to the hospital on '3-10-2014' with history of the wheel of the tempo trax running over his right foot at around 8.30 a.m. Therefore, it is evident that the accident had happened on

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'3-10-2014' but not on '5-10-2014'. Further, the hospital had issued an intimation to the police as per Ex.P24 and this document clearly mentioned that the accident was on '3-10-2014'. However, it was received by the police on '5-10-2014'. When it was reported to the investigation officer that the accident was on '3-10-2014', it was expected from him that the date of accident should have been verified and then go ahead with the investigation. On the other hand, the Investigating Officer had proceeded under the premise that the accident was on '5-10-2014 itself'. Therefore, it is evident that the chargesheet though described the accident in proper way, it did not properly mention the date of the accident. Hence, the contention of the insurance company that the vehicle insured by it was falsely implicated in the accident cannot be accepted. As a consequence, the appeal filed by the insurance company is liable to be dismissed.

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Coming to the quantum of the compensation, it is evident that the Tribunal has not awarded any

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compensation under the head of 'loss of amenities in life' and it had not considered the proper notional income. The

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Tribunal, had held that the notional income of the petitioner was Rs.7,500/- per month, in the absence of any cogent evidence regarding the income. Petitioner had contended that he was a vegetable merchant and was having an income of Rs.15,000/- per month. The guidelines issued by the KSLSA for settlement of disputes before the Lok Adalat prescribe a notional income of Rs.8,500/- per month for the year 2014. In umpteen

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number of decisions and also in the case of Smt. Mariyamma Vs. Suyambulingam V and another,¹ the

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Division Bench of this Court has held that the guidelines issued by KSLSA are in general conformity with the wages fixed under the Minimum Wages Act. Hence, the notional income of the petitioner is to be taken at Rs.8,500/- per month.

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1 MFA No.7404/2014 DD 6-12-2022

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NC: 2023:KHC:25487 MFA No. 1191 of 2018 C/W MFA No. 7799 of 2017

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13 -

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Based on the evidence of PW2- Dr.Sunil, the petitioner contended that he had suffered disability of 19.7%. PW2 had stated that the disability of 19.7% was for the right lower limb and the Tribunal held that the functional disability of the petitioner is 7%. Petitioner claims that he is a vegetable vendor, but no documentary evidence is available to show the avocation. Hence, the disability of 7% considered by the Tribunal is proper and correct and no interference is required in the same. Therefore, the compensation under the head of 'loss of future income' is calculated as: Rs.8,500/- x 12 x 17 x 7% =Rs.1,21,380/-.

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As a consequence, the loss of income during the laid up period has also to be considered and it can safely be held that the petitioner was unable to resume his work atleast for a period of six months as considered by the Tribunal. Hence, the petitioner is entitled for a sum of Rs.51,000/-(8,500/- x 6) under this head.

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The Tribunal has not considered the

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compensation under the head of 'loss of amenities in life'. Considering the nature of the injuries, it would be appropriate to award a sum of Rs.30,000/- under this head.

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The compensation awarded by the Tribunal under the remaining heads is proper and correct and no interference is required. Hence, the petitioner is entitled for a total compensation of Rs.2,96,250/- as below:

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Medical expenses	Rs. 53,870/-
Attendant, food, nourishment and conveyance	Rs. 5,000/-
Painand sufferings	Rs.35,000/-
Loss of future income	Rs.1,21,380/-
Loss of income during the laid up period	Rs. 51,000/-
Loss ofamenitiesin life	Rs.30,000/-
Total	Rs.2,96,250/-
Less: awarded by Tribunal	Rs.2,45,970/-
Enhancement:	Rs. 50,280/-

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19 . Thus, the petitioner is entitled for an enhanced

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compensation of Rs.50,280/- together with interest at 6%

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p.a. Hence, the following:

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NC: 2023:KHC:25487 MFA No. 1191 of 2018 C/W MFA No. 7799 of 2017

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ORDER

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(i) The appeal filed by the petitioner in MFA

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No.1191/2018 is allowed in part.

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(ii) The appeal filed by the Insurance Company in MFA No.7799/2017 is dismissed.

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(iii) The impugned judgment and award passed by the Tribunal is modified by awarding enhanced compensation of Rs.50,280/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its realization.

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(iv) The Insurance company is directed to deposit the compensation amount within four weeks from today.

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(v) Rest of the order of the Tribunal remain

unaltered.

Sd/JUDGE

tsn*

List No.: 1 Sl No.: 70

Ravikumar v. v J Jarj

Case brief

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Ravikumar v. v J Jarj

Case brief

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