Partly allowed

Mr. Sunil Kumar H D v. K C Dharmanna

Karnataka HC14 Jul 2023MFA/202/2018

Case brief

AI extract

What is this about?

High Court of Karnataka allowed a miscellaneous first appeal partly, varying compensation awarded for a motor accident. Increased loss of future earnings and loss of amenities, maintaining most medical expenses, imposing liability on the insurer for enhanced amount.

What did the court decide?

Impugned award modified; compensation enhanced to Rs. 16,73,000 payable by Respondent No.2/Insurer with interest at 6% p.a.

Mr. Sunil Kumar H D Vs K C Dharmanna — Insurance | Karnataka HC (2023)

¶1

¶2

M.F.A.No.202/2018

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 14^TH DAY OF JULY 2023

¶5

PRESENT

¶6

THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

¶7

AND

¶8

THE HON’BLE MR.JUSTICE RAMACHANDRA D. HUDDAR

¶9

MISCELLANEOUS FIRST APPEAL NO.202/2018 (MV-I)

¶10

BETWEEN:

¶11

MR.SUNIL KUMAR H D S/O DAKSHINA MURTHY AGED ABOUT 29 YEARS R/AT HONNAVALLI VILLAGE KASABA HOBLI, HASSAN TALUK – 577 423 ...APPELLANT

¶12

(BY SRI SHAMANTH K FOR SRI RAHUL RAI K, ADVOCATES)

¶13

AND:

¶14

K.C.DHARMANNA R/AT DOOR NO.32, 1^ST CROSS COX TOWN, BENGALURU – 560 084

¶15

THE MANAGER UNITED INDIA INSURANCE CO. LTD., SRI VENKATESHWARA BUILDING B.M.ROAD, HASSAN – 574 423 ...RESPONDENTS

¶16

(BY SMT.GEETHA RAJ, ADVOCATE FOR R2;

¶17

NOTICE TO R1 IS DISPENSED WITH V/C/O DTD:13.04.2023)

¶18

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 04.04.2017 PASSED BY THE SENIOR CIVIL JUDGE, MEMBER AND MACT, ARKALGUD IN MVC NO.1811/2012 PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶19

¶20

M.F.A.No.202/2018

¶21

THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND RESERVED ON 21.06.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, K.S.MUDAGAL J ., DELIVERED THE FOLLOWING:

¶22

JUDGMENT

¶23

“Whether the compensation awarded to the appellant under the impugned award is just?” is the question involved in this case.

¶24

The appellant was the claimant and the respondents were the respondent Nos.1 and 2 in MVC No.1811/2012 on the file of the Senior Civil Judge and MACT, Arakalgud. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the Tribunal.

¶25

On 25.07.2012 at 3.45 p.m. when the claimant was traveling on motorcycle bearing registration No.KA-53-S-8484 as the pillion rider near tempo stand, White field main road within the jurisdiction of White field Traffic Police Station, the lorry bearing No.TN-23-AS-8674 hit the motor cycle and caused the accident. The claimant fell on the ground and the left front wheel of the lorry ran over his right leg causing him grievous injuries. Regarding the accident on the complaint of rider of the motor cycle, White Field Traffic Police registered FIR as per

¶26

¶27

M.F.A.No.202/2018

¶28

Ex.P1 in Crime No.113/2012 of their Police Station against the driver of the lorry. On investigation the Police filed the charge sheet as per Ex.P5 against the driver of the lorry for the offences punishable under Section 279 and 338 IPC. At the relevant time respondent Nos.1 and 2 were the registered owner and Insurer of the offending lorry.

¶29

The claimant filed MVC No.1811/2012 before the Senior Civil Judge and MACT, Arakalgud against the respondents claiming compensation of Rs.50,00,000/- on the ground that the accident occurred due to actionable negligence on the part of the driver of the lorry. He further contended that due to the injuries suffered in the accident, he has suffered permanent physical disability, consequently lost the future earnings. He contended that he is entitled to compensation on the heads of pain and suffering, medical expenses, future medical expenses etc. from the respondents.

¶30

Respondent No.1 did not contest the petition. Respondent No.2 contested the petition denying the actionable negligence on the part of the driver of the lorry, injuries suffered by the claimant, his age, occupation and income.

¶31

¶32

M.F.A.No.202/2018

¶33

Respondent No.2 further contended that the accident occurred due to the negligence of the rider of the motor cycle, the claimant in collusion with the Police and other authorities got implicated the lorry to make wrongful gain. Respondent No.2 denied its liability to pay the compensation.

¶34

In support of his claim, the claimant got himself examined as PW.1 and the doctor as PW.2. On his behalf, Ex.P1 to P22 were marked. The official of respondent No.2 was examined as RW.1 and on their behalf, Exs.R1 to R3 were marked.

¶35

The Tribunal on hearing the parties and examining the evidence, by the impugned award held that the accident occurred due to the actionable negligence on the part of the driver of the lorry. The Tribunal considering the evidence of PW.2 the doctor assessed the permanent physical disability of the claimant at 23% to the whole body and his age at 22 years. The Tribunal notionally assessed the income of the claimant at Rs.5,000/- per month, applied 18 multiplier and awarded compensation of Rs.2,48,400/- on the head of loss of future

¶36

¶37

M.F.A.No.202/2018

¶38

earnings. The Tribunal in all awarded compensation of

¶39

Rs.13,39,500/- on different heads as per the table below.

¶40

Sl. No.	Particulars	Compensation awarded in Rs.
1.	Pain and agony	75,000/-
2.	Medical expenses	7,51,100/-
3.	Food and conveyance and attendant charges	20,000/-
4.	Loss of future income due to disability	2,48,400/-
5.	Loss of income during laid up period	5,000/-
6.	Loss of future amenities	20,000/-
7.	Future operation	2,20,000/-
	Total	13,39,500/-

¶41

The Tribunal held that respondent No.2/Insurer is liable to pay the said compensation with interest at 6% p.a. payable within two months from the date of the award failing which that shall carry interest at 9% p.a.

¶42

Submissions of Sri Shamanth K. for Sri Rahul Rai, learned counsel for the claimant:

¶43

Having regard to the nature of the injuries and evidence of PWs.1 and 2, the compensation awarded on the heads of pain and suffering, loss of amenities is on the lower side. The Tribunal committed grave error in assessing the permanent physical disability at 23% contrary to the evidence of the doctor.

¶44

¶45

M.F.A.No.202/2018

¶46

Submissions of Smt.Geetha Raj, learned counsel for respondent No.2:

¶47

The compensation awarded is based on the evidence adduced by the claimant himself. The claimant had not produced actual proof of income. Therefore, the Tribunal was justified in assessing the income notionally based on the prevailing rates of wages. The compensation awarded on all the heads is reasonable one.

¶48

ANALYSIS

¶49

The respondents have not challenged the findings of the Tribunal that the accident occurred due to the actionable negligence of the driver of the lorry bearing No.TN-23-AS-8674, the quantum of compensation or their liability to pay the compensation. Therefore, the correctness of findings of the Tribunal regarding the percentage of permanent physical disability and the quantum of compensation remain for consideration.

¶50

Admittedly PW.1 at the time of the accident was aged 22 years. As per the evidence and the claim petition he was an engineering student. Ex.P9 is the study certificate issued by Venkateshwara College of Engineering which shows that at the time of the accident he was studying in IV semester

¶51

¶52

M.F.A.No.202/2018

¶53

of BE Civil Engineering course in the said college. Ex.P10 shows that the claimant was an athlete. Ex.P9 further indicates that the claimant had taken admission to Civil Engineering course after completion of diploma course. That goes to show that the claimant though was still studying BE Civil Engineering, he had the potentiality to work and earn. Considering the demand for the diploma holders in Civil Engineering as well as Civil Engineers, the Tribunal was not justified in assessing the income on par with the unskilled labourers and taking the notional income at Rs.5,000/- per month.

¶54

It is settled law that in the cases involving motor accident claims in assessing the income of the victim some guess work is inevitable. Considering the qualification and eligibility of the claimant the Tribunal should have assessed the income of the claimant at Rs.10,000/- per month. As per PW.2 the doctor who treated the claimant and Exs.P6, P7 & P8 the wound certificate, discharge summary and disability certificate respectively, the claimant had suffered the following injuries:

¶55

“ Type III ‘C’ open fracture both bones of right leg (Degloving injury right leg)”

¶56

¶57

M.F.A.No.202/2018

¶58

As per Ex.P7 the discharge summary, when claimant

¶59

was brought to the hospital the following injuries were found on his body:

¶60

“Right leg severe degloving injury leg muscles of anterior, medial and lateral compartment exposed. Deformity/tenderness present.”

¶61

As per PW.2/claimant’s own witness and Ex.P8 the disability certificate, the claimant had suffered 23% permanent physical disability to the whole body. The Tribunal had rightly accepted the same at 23%. The applicable multiplier to the age of the claimant is 18. The annual loss of future earnings comes to Rs.27,600/(1,20,000X23/100). Therefore, the compensation payable on the head of loss of future earnings comes to Rs.4,96,800/- (27,600 X 18).

¶62

As stated above, the claimant had suffered one fracture and degloving injuries. He was treated as in-patient in the hospital from 25.07.2012 to 09.08.2012, 27.08.2012 to 30.08.2012 and 26.12.2012 to 28.12.2012 i.e., for a period of 23 days. Considering the nature of injuries and the period of hospitalization the compensation awarded on the head of pain and suffering is just one. The compensation on the head of

¶63

¶64

M.F.A.No.202/2018

¶65

medical expenses at Rs.7,51,100/- was awarded based on the medical bills produced by the claimant. That needs to be maintained.

¶66

Looking to the period of hospitalization, the nature of injuries and treatment underwent by him, the compensation awarded on the head of diet, conveyance and attendant charges is on the lower side. He has travelled from his home town, Arakalgud to Bengaluru. Therefore, awarding of Rs.30,000/- on the said head meets the ends of justice. Since the claimant was still student and had no actual income, he is not entitled to any compensation on the head of loss of income during the laid up period.

¶67

The evidence of PW.1/claimant and PW.2/doctor shows that he had compound fracture of right tibia and fibula III C, the blood circulation in right leg had completely stopped and he had right foot drop. His fracture was fixed by conducting surgery with external fixation and wound debridement was done. Skin grafting was also done. He attended the hospital 17 times for follow up treatment. The evidence of PW.2 shows that the claimant was not able to sit,

¶68

¶69

M.F.A.No.202/2018

¶70

squat, bend his right leg, climb stairs, use the Indian toilet etc. Further, he was not able to walk long distance, lift the weight and run etc.

¶71

As already noted, the claimant was student as well as athlete. By such injuries he has suffered loss of amenities. Therefore, the Tribunal should have awarded compensation of Rs.1,00,000/- on the head of loss of amenities. Future medical expenses awarded was based on the evidence of PW.2. That needs to be maintained. Therefore, just compensation payable

¶72

to the claimant is as follows:

¶73

Sl. No.	Particulars	Compensation awarded in Rs.
1.	Pain and agony	75,000/-
2.	Medical expenses	7,51,100/-
3.	Diet and conveyance and attendant charges	30,000/-
4.	Loss of future income due to disability	4,96,800/-
6.	Loss of amenities	1,00,000/-
7.	Future medical expenses	2,20,000/-
	Total	16,72,900/- Rounded off to Rs.16,73,000/-

¶74

For the aforesaid reasons, the appeal deserves to be allowed in part. Hence the following:

M.F.A.No.202/2018

ORDER

The appeal is partly allowed. The impugned award is modified as follows:

¶79

(i) The claimant is entitled to compensation of Rs.16,73,000/- with interest thereon at 6% p.a. from the date of petition till its realization.

¶80

(ii) Respondent No.2/Insurer shall deposit the said amount before the Tribunal on adjusting the amount already deposited, if any, within four weeks from the date of receipt of copy of this order.

¶81

(iii) On such deposit, the Tribunal shall release the said amount to the claimant digitally on furnishing the required documents.

¶82

(iv) Registry to transmit the TCRs to the Tribunal forthwith.

¶83

Sd/JUDGE

¶84

AKC

¶85

JUDGE

Mr. Sunil Kumar H D v. K C Dharmanna

Case brief

What is this about?

What did the court decide?

Mr. Sunil Kumar H D v. K C Dharmanna

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K R Paramesha Vs the Special Land Acqusition Officer

Smt Narayanamma Vs Balakrishna R

The Divisional Manager Vs N. Kumaresan

M/S Icici Lombard General Insurance Co. Vs Sundar M @ Sundar Muthu

T.v.L.N.Raju Vs the Additional Chief Secretary

Smt. Kumari. P Vs S. Allabakash