Partly allowed

Prahlad S/O Shiddappa Hegadikatti, v. Suresh Siddappa Hallur

Karnataka HC9 Feb 2023MFA/21107/2013

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly, enhancing motor accident compensation from Rs.1,87,391 to Rs.2,13,716. The Court recalculated future earnings based on notional income, corrected amenities loss, and added special charges, directing the insurer to pay the difference with interest.

What did the court decide?

Enhancement of compensation by Rs.26,325 with interest at 6% p.a. from date of petition till deposit, directed to be paid by the insurance company.

Prahlad S/O Shiddappa Hegadikatti, Vs Suresh… — Motor Accident Claims | Karnataka HC (2023)

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MFA No. 21107 of 2013

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF FEBRUARY, 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. 21107 OF 2013

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(MV-)

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BETWEEN:

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PRAHLAD S/O SHIDDAPPA HEGADIKATTI, AGED ABOUT: 56 YEARS, OCC: BUSINESS, R/O: TILAVALLI, TQ: HANGAL, DIST: HAVERI.

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…APPELLANT

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(BY SRI. HARISH S MAIGUR, ADV.,)

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AND:

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HIGH YASHAVANT COURT OF NARAYANKAR KARNATAKA, DHARWAD.

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SURESH SIDDAPPA HALLUR, AGED: MAJOR, OCC: AGRICULTURE, R/O: KALAGERI, TQ: HANGAL, DIST: HAVERI.

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO., LTD., ENKAY COMPLEX, KESHWAPUR, HUBLI.

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…RESPONDENTS

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(BY SRI. S. S. KOLIWAD, ADV., FOR R2; R1- NOTICE SERVED)

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MFA No. 21107 of 2013

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 16.08.2011 PASSED IN MVC NO.208/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL AT HANGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 20.01.2023, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the petitioner in MVC No.208/2008 aggrieved by the judgment and award dated 16.08.2011 passed by the Senior Civil Judge and Member Additional Motor Accident Claims Tribunal, Hangal (for short “Tribunal”).

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By the consent of the learned counsel appearing for both the sides, the matter is taken up for final disposal even though it is posted for admission.

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The parties are referred to as per their ranks before the Tribunal for the sake of convenience.

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The petitioner was rider of the motorcycle bearing registration No.KA-27/H-4272 and while he was proceeding along with pillion rider, on 18.05.2008 at about 6.00 p.m.,

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MFA No. 21107 of 2013

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on Tilavalli-Kalakeri Road, the driver of the tractor bearing registration No.KA-27/T-8904 drove the tractor in a rash and negligent manner and dashed against the motorcycle whereby the rider and the pillion rider fell down and sustained injuries. The petitioner was shifted to Government Hospital at Haveri and thereafter he was referred to KIMS Hospital, Hubli for further treatment. After discharge from KIMS Hospital, he had to continue treatment at Kshema Orthopedic and Trauma Centre, Hubli and underwent surgeries for the fractures sustained by him by spending huge amount. The petitioner contended that prior to the accident, he was doing business of fertilizers, seeds etc. under the sub-dealership of M/s.Hegadekatte Agro Agencies at Tilavalli and he was also having a cinema theatre, cloth shop and agricultural establishment and was having a turnover more than Rs.3,00,00,000/- annually and he used to earn Rs.50,000/- per month. It was contended that the petitioner has suffered permanent disability and therefore, he is entitled for adequate compensation. It was alleged that the accident occurred due to the negligent driving by the

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MFA No. 21107 of 2013

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driver of the tractor bearing registration No.KA-27/T-8904 and the respondent No.1 is the owner and respondent No.2 is the insurer of the said vehicle and as such, they are jointly and severally liable to pay the compensation to the petitioner.

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On issuance of notice by the Tribunal, both the respondents appeared before the Tribunal and filed their objections. Respondent No.1 denied the averments of the petition as false and untenable and called upon the petitioner to prove the allegations. It was contended that the tractor was driven by one Suresh Vanakere, who was having effective driving licence at the time of the accident and the tractor was covered by insurance policy issued by respondent No.2 and therefore, if any compensation has to be paid, the liability has to be fastened on the respondent No.2.

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Respondent No.2 in its objection statement, apart from denying the petition averments as false and untenable, contended that the compensation is highly exorbitant and untenable in law. Inter alia it was also contended that the accident occurred due to the negligence on the part of the

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MFA No. 21107 of 2013

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rider of the motorcycle and that the rider was not having effective driving licence at the time of the accident. It was also contended that the policy was issued in favour of respondent No.1 subject to terms and conditions and since there is violation of the terms and conditions of the policy, the respondent No.2 is not liable to pay the compensation.

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On the basis of the above pleadings, the Tribunal framed necessary issues and matter was clubbed with MVC No.209/2008, which was filed by the pillion rider of the motorcycle and common evidence was led before the Tribunal. The petitioners in both the petitions were examined as PW1 and PW2, respectively, and one witness was examined as PW3 and Exs.P1 to P29 were marked in evidence. The respondents did not adduce any evidence but the insurance policy was marked by consent as Ex.R1. After hearing the arguments by both sides, the Tribunal awarded the compensation of Rs.1,87,391/- to the petitioner along with interest @ 6% per annum. Being aggrieved by the judgment and award, the petitioner in MVC No.208/2008 has approached this Court in this appeal.

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MFA No. 21107 of 2013

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The petitioner contended that the quantum of

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compensation awarded by the Tribunal is inadequate and it overlooks the evidence placed on record. It is contended that while calculating the loss of future earning capacity, the income of the petitioner has not been considered by the Tribunal in proper way and it failed in adopting the notional income while calculating the compensation. It is also contended that the Tribunal has not properly awarded the compensation in respect of loss of income during the laid up period and it failed to notice that the treatment prolonged for a longer period. It is also contended that meager amounts have been awarded under various heads of compensation and therefore, the quantum of compensation has to be reassessed by this Court.

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On issuance of notice, respondent No.2-Insurane Company has appeared through its counsel. Respondent No.1 did not appear despite of service of notice.

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Heard the arguments advanced by the learned counsel appearing for the appellant and respondent No.2.

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MFA No. 21107 of 2013

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The fact that there was an accident involving motorcycle bearing registration No.KA-27/H-4272 and the tractor bearing registration No.KA-27/T-8904 on TilavalliKalakeri road on 18.05.2008 at 6.00 p.m., is not in dispute. The Tribunal has considered about the factum of the accident on the basis of the police papers and has arrived at a conclusion that respondent No.2 is liable to pay the compensation to the petitioner. So also the fact that the driver of the tractor was having a valid and effective driving licence at the time of the accident, is also not in dispute. Therefore, the only point that remains to be considered by this Court is in respect of quantum of compensation awarded by the Tribunal.

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The records reveal that the petitioner/appellant had sustained avulsion fracture of posterior cruciate ligament at tibia attachment with superior migration of fractured fragment, Grade-III tear of posterior horn of medial meniscus, Partial thickness of medial collateral ligament at femoral attachment and mild haemarthrosis. He was admitted to Kshema Hospital and the doctor who treated the

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petitioner was examined as PW3. Dr. Ashok V Kalamadani, Consultant orthopedic surgeon, was examined through Court Commissioner. He has stated about the manner of treatment provided to the petitioner, which included repair and reconstruction surgery of the ligament and an above knee cast. The evidence discloses that the petitioner was an inpatient from 18.05.2008 to 20.05.2008 and later continued for follow-up treatment and ultimately he had to admit to the hospital for removal of cast and for mobilization etc., for a period of three days. However, the pain and disablement continued. PW3 states that there is a permanent physical disability affected the left lower limb of the petitioner to the extent of 30%. The Tribunal considering the nature of injuries and avocation of the petitioner came to the conclusion that there is a physical disability to the extent 20%. It also considered the same to be as functional disability applicable to the petitioner.

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The petitioner had produced Ex.P10, which is a taxpayer counter foil for the year 2007-08 in respect of M/s.Hegadekatte Agro Agencies wherein it was stated that a

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9 - MFA No. 21107 of 2013

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sum of Rs.9,670/- was paid towards income tax. Some overwritings were found by the Tribunal and it ultimately came to the conclusion, on the basis of Ex.Ps11, 12 and 13, which are the income tax returns, that the income of the petitioner has to be held at a sum of Rs.3,750/- per month. It opined that the income tax returns are not helpful and therefore, it adopted the notional income with reference to the age of the petitioner. It is this finding of the Tribunal, which is assailed by the learned counsel for the appellant.

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It is relevant to note that the guidelines issued by KSLSA for the purpose of settlement of disputes before the Lok-Adalath discloses that the notional income for the year 2008 is Rs.4,250/-. The said guidelines is based on the contemporary wages fixed under the Minimum Wages Act and also including certain enhancement on account of skill, inflation etc. On a careful perusal of the documents produced, I do not find any reason to hold that the income tax returns produced by the petitioner depict correct income of the petitioner and as such, the finding of the Tribunal that the income tax returns cannot be taken into consideration as

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MFA No. 21107 of 2013

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material to fix income, has to be accepted. Therefore, in the absence of any cogent material regarding the income of the petitioner, the notional income @ Rs.4,250/- per month, as per the guidelines issued by the KSLSA has to be accepted. The petitioner, at the time of the accident, was aged 54 years and multiplier ‘11’ applied by the Tribunal is appropriate. Hence, the loss of future earning capacity to which the petitioner is entitled to is calculated at a sum of Rs.4,250 x 12 x 20% x 11 = 1,12,200/-.

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Insofar as compensation under the head of loss of income during the laid-up period is concerned, the monthly income having been taken as Rs.4,250/- per month, it can safely be said that the petitioner could not resume his normal work at least for a period of three months, sum of Rs.12,750/- is awarded to the petitioner under this head.

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The Tribunal has granted a sum of Rs.15,000/under the head of loss of amenities in life and another sum of Rs.6,000/- under the head of discomfort, mental stress in life etc. In fact, the discomfort and mental stress is nothing but the loss of amenities in life. It is to be noted that loss of

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MFA No. 21107 of 2013

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amenities result in view of discomfort suffered by the petitioner on account of the injuries sustained and loss of any such comfort in his future life. Under these circumstances, the petitioner being a businessman, it would be just and proper to award a sum of Rs.25,000/- under the head of loss of amenities instead of Rs.21,000/- awarded by the Tribunal.

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The Tribunal has awarded a sum of Rs.30,000/towards pain and suffering and I do not find any reason to interfere with the same.

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So far as special diet, conveyance, attendant

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charges are concerned, it is relevant to note that the Tribunal has overlooked the fact that the petitioner was an inpatient for three days on two occasions. Therefore, a sum of Rs.5,000/- is awarded under the head of special diet, conveyance, attendant charges etc., instead of Rs.3,000/awarded by the Tribunal.

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I do not find any reason to revise or revisit the compensation awarded by the Tribunal under the head of

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medical expenses as it is based on the bills produced by the petitioner. Thus, the total amount of compensation works out as below:

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HEAD	AMOUNT (in Rs.)
Loss of future earnings due to disability	1,12,200/-
Loss of amenities in life	25,000/-
Loss of earnings duringlaid up period	12,750/-
Towardspain and suffering	30,000/-
Towards Medical expenses	28,766/-
Towards special diet, conveyance, attendant	5,000/-
charges etc.
Total	2,13,716/-
Less awarded bythe Tribunal	1,87,391/-
Total enhanced compensation	26,325/-

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Therefore, the petitioner is entitled for a sum of

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Rs.26,325/- together with interest in addition to what has been awarded by the Tribunal. Hence, the following:

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ORDER

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(i) Appeal is allowed in part.

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(ii) The impugned judgment and award dated

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16.08.2011 passed in MVC No.208/2008 by the

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Tribunal is modified by enhancing the

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MFA No. 21107 of 2013

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compensation of Rs.26,325/- together with interest at 6% p.a. from the date of petition till its deposit.

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(iii) Insurance company is directed to deposit the compensation amount together with interest within a period of four weeks from the date of receipt of the copy of this order.

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(iv) The said enhanced compensation together with interest shall be released in favour of the petitioner, on proper identification.

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Sd/JUDGE

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YAN List No.: 1 Sl No.: 40

Prahlad S/O Shiddappa Hegadikatti, v. Suresh Siddappa Hallur

Case brief

What is this about?

What did the court decide?

Prahlad S/O Shiddappa Hegadikatti, v. Suresh Siddappa Hallur

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

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