Partly allowed

Sri. Siddalinga S/O Basalingappa Koralur v. Baramu and Anr.

Karnataka HC20 Jun 2023MFA/200852/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed two first appeals by victims of a motor accident, enhancing the compensation awarded by the trial court. The Court increased future earning capacity and loss of earning during lay-up based on settled Lok Adalat income standards, resulting in additional awards for the appellants against the auto owner and insurer.

What did the court decide?

Impugned judgment modified to award total compensation of Rs.4,81,250 and Rs.4,93,250 to the appellant victims with 6% interest on enhanced amounts.

Sri. Siddalinga S/O Basalingappa Koralur Vs Baramu… — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-K:1369-DB MFA No. 200851 of 2019 C/W MFA No. 200852 of 2019

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IN THE HIGH COURT OF KARNATAKA,

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KALABURAGI BENCH

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DATED THIS THE 20^TH DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD

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AND

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THE HON'BLE MR. JUSTICE UMESH M ADIGA

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MISCL. FIRST APPEAL NO. 200851 OF 2019 (MV-I)

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C/W

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MISCL. FIRST APPEAL NO. 200852 OF 2019

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MFA NO. 200851 OF 2019 (MV-I)

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BETWEEN:

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SRI. ARUN S/O YALLAPPA SAKHARE, AGED ABOUT 32 YEARS, OCC:ASSISTANT WORKER OF VIDEO SHOOTING PHOTOGRAPHY ALONG WITH TILES FITTING WORK,

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R/O JORAPUR PETH, VIJAYAPURA.

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Digitally signed by SOMANATH PENTAPPA MITTE Location: HIGH COURT OF KARNATAKA

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…APPELLANT

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(BY SRI. RATNA N. SHIVAYOGIMATH, ADVOCATE)

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AND:

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BARAMU S/O RAMANNA BABALESHWAR, AGED ABOUT 36 YEARS, OCC:AUTO OWNER BEARING NO.KA-28/C-0316 R/O MURANKERI GALLI, VIJAYAPURA-586101.

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THE BRANCH MANAGER ORIENTAL INSURANCE CO. LTD.,

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NC: 2023:KHC-K:1369-DB MFA No. 200851 of 2019 C/W MFA No. 200852 of 2019

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S.S.FRONT ROAD, VIJAYAPURA-586101

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…RESPONDENTS

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(BY SRI UDAY P. HONGUNTIKAR ADV FOR R2; NOTICE TO R1, DISPENCED WITH V/O DATED 23.09.2019)

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THIS MFA IS FILLED UNDER SECTION173(1) OF MVC ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 14.08.2018 PASSED BY THE I ADDL. SENIOR CIVIL JUDGE AND MACT VI, VIJAYAPURA, IN MVC NO.416/2016 AND AWARD THE COMPENSATION AS PRAYED FOR IN THE ORIGINAL CLAIM PETITION, IN THE INTERESET OF JUSTICE AND EQUITY.

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MFA NO. 200852 OF 2019 (MV-D)

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BETWEEN:

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SRI. SIDDALINGA S/O BASALINGAPPA KORALUR AGED ABOUT 32 YEARS, OCC: VIDEO SHOOTING PHOTOGRAPHY, R/O JORAPUR PETH, ADAKI GALLI, VIJAYAPURA.

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…APPELLANT

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(BY SRI. RATNA N SHIVAYOGIMATH, ADVOCATE)

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AND:

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BARAMU S/O RAMANNA BABALESHWAR, AGED ABOUT 36 YEARS, OCC: AUTO OWNER BEARING NO.KA-28/C-0316, R/O MURANKERI GALLI, VIJAYAPURA.

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THE BRANCH MANAGER ORIENTAL INSURANCE CO. LTD., S.S. FRONT ROAD, VIJAYAPURA.

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…RESPONDENTS

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(BY SRI. SANGANGOUDA B. PATIL ADV FOR R1; SRI.UDAY P. HONGUNKTIKAR ADV FOR R2)

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NC: 2023:KHC-K:1369-DB MFA No. 200851 of 2019 C/W MFA No. 200852 of 2019

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THIS MFA IS FILLED UNDER SECTION 173(1) MVC ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 14.08.2018 PASSED BY THE I ADDL. SENIOR CIVIL JUDGE AND MACT VI, VIJAYAPURA, IN MVC NO. 415/2016 AND AWARD THE COMPENSATION AS PRAYED FOR IN THE ORIGINAL CLAIM PETITION, IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, UMESH, M. ADIGA, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Claimants in MVC.No.415/2016 has filed

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MFA.No.200852/2019 and claimant in MVC.No.416/2016 has filed MFA.No.200851/2019 challenging judgment and award passed in the said MVC cases dated 14.08.2018 by the learned I Additional Senior Civil Judge and MACT -VI, Vijayapura (for short hereinafter referred as 'TRIBUNAL') claiming for enhancement of the compensation.

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The tribunal had clubbed both the cases and passed common judgment. And we have also taken up both these appeals together for disposal.

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Though these appeals are listed for hearing on 'Admission', with the consent of learned counsel for both the side, the matter is taken up for 'Final Disposal'.

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For the sake of convenience, the parties herein will be referred to as per their rank before the Tribunal.

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It is the case of claimants in both the case that on 18.01.2016 at about 9.00 p.m., claimants in both the case were standing near VRL Parcel Office. At that time, driver of an autorickshaw, bearing registration No.KA-28-C-0316, drove his vehicle in a rash and negligent manner and dashed against petitioner in both the cases. Due to impact, both the petitioners have sustained grievous injuries to the left hand, knee joint and other injury all over the body. Initially, they were taken to nearby hospital. Both took treatment at Government Hospital at Vijayapura and BLDE hospital, Vijayapura. Thereafter, they were shifted to GL Kulkarni's Hospital at Miraj and hospital of Dr.Shailesh Deshpande, Ortho Hospital, Vijayapura. Both claimants underwent surgeries and each had spent more than rupees a lakh towards medical and incidental expenses.

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It is further contention of claimants in both the cases that claimants in both the cases were aged about 29 years at the time of accident. They were videographers and photographers. They were earning Rs.10,000/- each per month. Due to injuries

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sustained in the accident, they have been suffering from permanent disabilities. With these reasons, they prayed to award compensation of Rs.36,00,000/- and 27,00,000/- respectively.

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Respondent No.1/Owner of the autorikshaw has admitted the fact of the accident and he has further contended that said vehicle was insured with respondent No.2 and the policy of insurance was in force on the date of accident. The driver of autorickhshaw was holding a valid and effective driving license to drive the autorickshaw. With these reasons, prayed to dismiss the petition against respondent no.1.

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The contentions of respondent No.2 are that it denied all the petition averments. It has further stated that driver as well as owner of the said autoricksaw have violated terms and conditions of policy of insurance and the driver of autoricksaw was not holding valid and effective driving license to drive the autoricksaw. The amount of compensation claimed is highly exorbitant and with these reasons it prayed to dismiss the claim petitions.

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From the rival contentions of the parties the Tribunal had framed necessary issues.

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NC: 2023:KHC-K:1369-DB MFA No. 200851 of 2019 C/W MFA No. 200852 of 2019

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The tribunal had recorded evidence. Claimants examined PWS.1 to 3 and got marked exhibit P1 to P29. Respondents have not led oral evidence however Respondent no.2 has got marked Ex.R1.

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The Tribunal has heard the arguments on both side and on appreciating the pleading and evidence on record, the Tribunal by the impugned judgment and award partly allowed the petitions by the impugned judgment and awarded following compensation.

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In MVC.No.415/2016 following compensation is awarded:

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Sl.No	Particulars	Amount in Rs.
1.	Pain and sufferings	25,000
2.	Medical expenses	50,000
3.	Loss of earning during laid up period	3,000
4.	Loss of future earning capacity due to permanent disability	2,44,800
5.	Loss of amenities and future unhappiness	20,000
6.	Attendant, diet, conveyance and othercharges	3,000
	Total	3,45,800

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13. In MVC.No.416/2016 following compensation:

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Sl.No	Particulars	Amount in Rs.
1.	Pain and sufferings	25,000
2.	Medical expenses	60,000
3.	Loss of earning during laid up period	5,000
4.	Loss of future earning capacity due to permanent disability	2,44,800
5.	Loss of amenities and future unhappiness	20,000
6.	Attendant, diet, conveyance and othercharges	5,000
	Total	3,59,800

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We have heard the arguments.

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The learned counsel for the appellant has contended that claimant in MVC.No.415/2016 had sustained fracture of left hand elbow joint and other injuries to the body. He underwent surgery. He has been suffering from permanent disability, to an extent of 40 to 45% to the upper limb, but Tribunal has taken disability @ 20%. The claimant was aged about 30 years at the time of accident and he was a vediographer and earning Rs. 30,000/- per month. But Tribunal has taken income of claimant as Rs.6,000/- per month, which is on much lower side. Due to the said injuries claimant could not work for a period of more

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than six months and lost his earnings. It is not compensated by the Tribunal. Therefore, prayed to enhance the compensation.

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The learned counsel for claimant in MVC.No.416/2016 has submitted arguments in similar lines as stated above and prayed to enhance the compensation.

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The learned advocate for the respondent No.2 has submitted that the tribunal has awarded just and reasonable amount of compensation and it doesn’t call for any interference by this Court and prayed to dismiss the appeal.

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Following point emerges for our determination

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1.whether the claimants are entitled for the enhancement of compensation as sought?

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The tribunal on the basis of available of evidence on record held that accident was taken place due to rash and negligent driving of autoricksaw by its driver. This point is not disputed by respondents and they have not challenged the said findings therefore there is no need to reconsider the same.

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Let us take up the case in MVC 415/2016 i.e., MFA 200851/2019.

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NC: 2023:KHC-K:1369-DB MFA No. 200851 of 2019 C/W MFA No. 200852 of 2019

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The tribunal on the basis of evidence available on record held that age of the claimant was 29 years, his income as Rs. 6000/- per month; multiplier applicable is '17' and percentage of disability to the whole body as 20%. On that basis, assessed the compensation.

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The Tribunal has taken disability at 20% to the whole body However, in paragraph No.29 of the impugned judgment, the tribunal has mentioned the functional disability at 5%. It appears to be a typographical mistake and while calculating the compensation, the tribunal has taken disability at 20%, to whole body. The disability assessed by the Tribunal is proper. The evidence of PW3 pertains to disability to the left upper limb while considering to the whole body, it shall be 1/3^rd . Hence, said finding does not call for interference.

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The Tribunal has taken income of the claimant as Rs.6,000/- per month. The said assessment of the income by the Tribunal is on lower side. According to contention of the claimants, he was earning a sum of Rs.10,000/- per month. The claimant has not produced legal evidence to accept the said contention. However, as rightly submitted by learned counsel for

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the claimants, while the settlement of the case before lok adalath pertains to MVC cases income of a victim of a accident is taken as Rs.8,750/- for an accident of the year 2016 and there is no reason for non-application of the said income for the claimants herein. Therefore, income of the claimant is taken as Rs.8,750/and the multiplier applicable is '17 ' and percentage of disability at 20%. Therefore, the compensation to be awarded under the head 'Loss of future earning capacity' due to permanent disability is Rs.3,57,000/- (Rs.8,750 X 12 X 17 X 20%).

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The claimant has sustained fracture to the left elbow joint. Due to the said injury, he might not be in a position to attend his work at least for a period of three months and lost his earning during the said period. The Tribunal has awarded compensation of Rs.5,000/- under the said head and it is on lower side, which needs to be enhanced. Hence, compensation under the head 'loss of income during laid up period' is Rs.26,250/- (Rs.8,750 x 3).

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The compensation awarded under the other heads are just and reasonable and does not call for any interference.

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. 26. The claimant in MVC.No.415/2016 i.e. in MFA.No. 200852/2019 is entitled for following amount of compensation:

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- 11 - NC: 2023:KHC-K:1369-DB MFA No. 200851 of 2019 C/W MFA No. 200852 of 2019

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Sl.No	Particulars	Amount in Rs.
1.	Pain and sufferings	25,000
2.	Medical expenses	50,000
3.	Loss of earning during laid up period	26,250
4.	Loss of future earning capacity due to permanent disability	3,57,000
5.	Loss of amenities and future unhappiness	20,000
6.	Attendant, diet, conveyance and othercharges	3,000
	Total	4,83,250

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Therefore, the claimant is entitled to enhancement of 1,37,450/-.

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IN MVC.No.416/2016 i.e. in MFA.No.200851/2019

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In this case, claimant has contended that he was earning a sum of Rs.13,000/- per month by working as a photographer/ videographer. He was unable to prove his income before the Tribunal. Therefore, the tribunal has taken the notional income of the claimant as Rs.6,000/- per month. As discussed in the above case, notional income of claimant is taken at Rs.8,750/- per month., Age of the claimant is 29 years and multiplier applicalbe is '17'.

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The submission of learned advocate for petitioner that claimant has been suffering from disability @ 45% is not tenable.

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The evidence of PW2 pertains to upper limb and when it is considered to whole body it shall be about 1/3^rd of the same. On that basis, the Tribunal has taken disability at 20%, that does not call for any interference. Therefore, the claimant entitled to compensation to be awarded under the head 'Loss of future earning capacity' due to permanent disability is Rs.3,57,000/(Rs.8,750 X 12 X 17 X 20%).

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Claimant had sustained the fracture of left elbow joint and permanent disability is assessed at 20% to the whole body. The submission of the learned counsel for petitioner that at least to a period of 2 to 3 months claimant was unable to attend to his work and lost his earnings. Said submission is tenable. Claimant is entitled for compensation under loss of income during the laid up period is Rs.26,250/- (Rs.8,750 x 3 months).

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The compensation awarded under other heads do not call for any interference. Therefore, the claimant is entitled for following compensation:

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Sl.No	Particulars	Amount in Rs.
1.	Pain and sufferings	25,000
2.	Medicalexpenses	60,000
3.	Loss of earning during laid up period	26,250

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13 -

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NC: 2023:KHC-K:1369-DB MFA No. 200851 of 2019 C/W MFA No. 200852 of 2019

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4.	Loss of future earning capacity due to permanent disability	3,57,000
5.	Loss of amenities and future unhappiness	20,000
6.	Attendant, diet, conveyance and othercharges	5,000
	Total	4,93,250

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The claimant is entitled to enhancement of 1,33,450/- .

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Respondents are the owner and insurer of the offending

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vehicle, therefore they are liable to pay the compensation.

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For the aforesaid discussions, we answer Point No.1 - partly in the affirmative and pass the following:

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ORDER

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Appeal in MFA.Nos.200851/2019 and

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200852/2019 are partly allowed with costs.

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The impugned judgment and award passed in MVC.NO.415/2016 & 416/2016 dated 14.08.2018 by the I Additional Senior Civil Judge and MACT-VI, Vijayapura is modified, as follows:

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(a) Claimant in MFA.No.200852/2019 is entitled for total compensation of Rs.4,81,250/- as against Rs.3,45,800/awarded by the Tribunal and claimant is entitled for enhancement of Rs.1,35,450/- along with interest @ 6% per annum

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on the enhanced compensation from the date of petition till its payment.

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(b) Claimant in MFA.No.200851/2019 is entitled for total compensation of Rs.4,93,250/- as against Rs.3,59,800/awarded by the Tribunal and claimant is entitled for enhancement of Rs. 1,33,450/- along with interest @ 6% per annum on the enhanced compensation from the date of petition till its payment.

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(c) Accident has taken place during the year 2016 and already more than 7 years is lapsed therefore entire amount of enhanced amount of compensation is ordered to be released to the claimants respectively on due identification.

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Sd/JUDGE

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Sd/JUDGE

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List No.: 2 Sl No.: 8

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Sri. Siddalinga S/O Basalingappa Koralur v. Baramu and Anr.

Case brief

What is this about?

What did the court decide?

Sri. Siddalinga S/O Basalingappa Koralur v. Baramu and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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