Partly allowed

Mr Harischandra v. Mr Yogish K

Karnataka HC6 Jul 2023MFA/4108/2017

Case brief

AI extract

What is this about?

This Motor Vehicles First Appeal concerns a motor-accident compensation claim. The High Court enhanced the compensation awarded by the Tribunal by recalculating loss of amenities and laid-off period based on the appellant's overtime earnings, allowing an additional sum.

What did the court decide?

Enhanced total compensation awarded at Rs. 3,49,500/-, with additional amount of Rs. 73,735/- to be deposited by the insurance company within six weeks.

Mr Harischandra Vs Mr Yogish K — Motor Accident Claims | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC:23291 MFA No. 4108 of 2017

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 6^TH DAY OF JULY, 2023

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE C M JOSHI MISCELLANEOUS FIRST APPEAL NO. 4108 OF 2017 (MV-I)

¶7

BETWEEN:

¶8

MR. HARISCHANDRA, S/O. GUNDAPPA MOOLYA, AGED ABOUT 34 YEARS, R/AT DOOR NO 2-109, KINYANNA BAILU HOUSE, NEERAPADE POST, BALTHILA VILLAGE, BANTWAL TALUK, D. K. DISTRICT - 574 219.

¶9

…APPELLANT

¶10

(BY SRI. RAVISHANKAR SHASTRY G., ADVOCATE)

¶11

AND:

¶12

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

¶13

MR. YOGISH K., S/O. SANJEEVA MOOLYA, ADULT, RESIDING AT DOOR NO 3-69, ALAKKI, MANI HOUSE, BANTWAL KASABA VILLAGE, BANTWAL TALUK, D.K. - 574 219.

¶14

NATIONAL INSURANCE CO. LTD., GANESH BUILDING, II FLOOR, BANTWAL CROSS ROAD, REPRESENTED BY ITS DIVISIONAL OFFICE, BHARATH BUILDING, P.M. RAO ROAD, BANTWAL, D.K. - 574 219.

¶15

…RESPONDENTS

¶16

(BY SRI. RAVISH BENNI, ADVOCATE FOR R2; VIDE ORDER DATED 04.02.2019, NOTICE TO R1 IS DISPENSED WITH)

¶17

¶18

NC: 2023:KHC:23291 MFA No. 4108 of 2017

¶19

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:08.03.2017 PASSED IN MVC NO.461/2015 ON THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE, D.K., MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶20

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

¶21

JUDGMENT

¶22

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

¶23

The appeal is directed against the judgment and award in MVC No.461/2015 dated 08.03.2017, on the file of IV Additional District Judge and Member, MACT, Dakshina Kannada, Mangalore. Whereby the appellant herein was awarded a sum of Rs.2,75,765/- as compensation. Being aggrieved by the said judgment the appellant is before this Court.

¶24

The case of the appellant is that on 07.02.2015 at about 4.00 a.m., while he was proceeding as a pillion rider in motor cycle bearing Reg.No.KA-19-EB-6161 from Maani towards Kalladka, the rider of said motor cycle i.e. respondent No.1 drove the same in high speed and negligent manner and

¶25

¶26

NC: 2023:KHC:23291 MFA No. 4108 of 2017

¶27

suddenly applied the brake as a result the bike got skid and appellant fell down sustaining injuries.

¶28

The appellant was shifted to a local hospital and thereafter to A.J.Hospital and Research Centre, Mangalore, where he was admitted as in-patient for a period of 14 days. It is contended that appellant was working as driver in KSRTC, earning a salary of Rs.18,000/- per month, due to accident and injuries he has suffered permanent disability and lost his income and other benefits. Therefore, the appellant claimed compensation from the owner and the insurer of two wheeler. On issuance of notice, respondent No.1 did not appear before the Tribunal and placed exparte. Respondent No.2/Insurance Company appeared before the Tribunal and filed objections contending that the said motor cycle was not involved in the accident and the rider of motor cycle did not possess a valid driving license and also that the compensation claimed by the appellant is on higher side and untenable under law.

¶29

The Tribunal has framed appropriate issues and the appellant was examined as PW-1 and two witnesses were examined as PW-2 and PW-3 and got marked seventeen

¶30

4 - NC: 2023:KHC:23291 MFA No. 4108 of 2017

¶31

documents as Ex.P1 to Ex.17. Whereas for respondents, a witness was examined as RW-1 and got marked four documents as Ex.R1 to Ex.R4. After hearing the arguments on both the sides, the Tribunal held that the appellant had continued in service in KSRTC and therefore he is not entitled for loss of future income on the basis of disability. However, he is entitled for compensation under other heads and as such awarded compensation under the following heads.

¶32

Sl.No.	Compensation under different Heads	Amount in (Rs.)
1.	Pain and Sufferings	40,000
2.	Loss of income on the basis of disability	-nil-
3.	Loss of income during laid off period	47,265
4.	Loss of amenities in life	50,000
5.	Medical expenses	1,18,500
6.	Future Medical expenses	10,000
7.	Attendant and Misc. expenses	10,000
	Total	2,75,765

¶33

Being aggrieved by the said judgment and award the appellant is before this Court. On issuance of notice, respondent No.2/Insurance Company is before this Court through its counsel and notice to respondent No.1 is dispensed with.

¶34

NC: 2023:KHC:23291 MFA No. 4108 of 2017

¶35

¶36

Learned counsel appearing for the appellant submits that the Tribunal has erred and held that there was no loss of income on the basis of disability. He contends that PW-3 who has assessed the disability of appellant has stated that he has suffered disability of 25% to the right lower limb and right upper limb and therefore, the Tribunal should have taken the disability into consideration in awarding the compensation. He further contends that the salary slips produced by the appellant clearly shows that the appellant was earning additional remuneration for having worked as 'over time' and that such extra work which he used to do, has been reduced and therefore there is a reduction of income. He also submitted that the compensation awarded by the Tribunal under other heads of compensation are also low and meager and the same needs to be enhanced.

¶37

Per contra learned counsel for the respondentInsurance Company contends that the Tribunal has awarded adequate compensation on all the heads and there is no need for reassessment of the compensation. He submits that the appellant has continued in service and therefore the loss of income on account of disability is permissible. The fact that

¶38

¶39

NC: 2023:KHC:23291 MFA No. 4108 of 2017

¶40

while the appellant was pillion rider on the motor cycle ridden by respondent No.1 and met with an accident is not in dispute. So also the fact that, respondent No.2 had insured said motor cycle is also not in dispute. The only point of dispute between the appellant and respondent is in respect of quantum of compensation.

¶41

The pay slip of the appellant which is produced at Ex.P12 shows that the appellant had basic pay of Rs.11,860/and the dearness allowance of Rs.2,995/- and Rs.712/-. In addition to that he used to earn HRA to the extent of Rs.1,186/-. It is evident that by working over-time he used to earn nearly around Rs.4,000/- per month as may be seen from Ex.P12 which is the salary slip for the month of January-2015. Along with Ex.P12 the pay slips of February, March, April, May and June 2015 were also produced. These pay slips show that the additional income which the appellant used to get by working as a over-time has been lost by him and he is unable to earn such extra remuneration.

¶42

The learned counsel appearing for the appellant submits that the Tribunal has not considered this aspect, but

¶43

7 - NC: 2023:KHC:23291 MFA No. 4108 of 2017

¶44

has considered only the basic pay of appellant in arriving at the compensation amount. The impugned judgment by the Tribunal shows that it has considered only Rs.11,860/- as the income and has ignored the basic pay and HRA. It is settled principles of law that the salary component includes basic pay, dearness allowance and HRA and however, the Income tax and professional tax has to be deducted from it.

¶45

Evidently, the Tribunal has not considered the dearness allowance and HRA which was paid to the appellant. The payslip shows that there is variation of this amount every month and on an average he was earning Rs.16,500/- per month as a salary. The remaining amount which is at variance was on account of his earnings for the night halts, over time and such other extra work which he used to do with the KSRTC.

¶46

Evidently, the appellant due to the injuries suffered by him is unable to earn such extra amount. The records reveal that the appellant has sustained the following injuries.

¶47

“Lacerated wound, 3cm x 0.5cm x bone deep, vertically, over right side of the eyebrow and forehead.

¶48

Full thickness lacerated wound, 4cm x 3cm over right upper lip, extending to the right nostril.

¶49

¶50

NC: 2023:KHC:23291 MFA No. 4108 of 2017

¶51

Swelling and tenderness over inner aspect of right ankle with underlying fracture of lower end (medical malleolus) of tibia (X-ray of right ankle).

¶52

CT Scan of Pelvis No.477 shows,

¶53

a) Fracture of superior and inferior pubic ramus of right hip bone.

¶54

b) Fracture of right ala of sacrum.

¶55

CT Scan of Chest and Abdomen No.418 shows,

¶56

a) Comminuted fracture of left scapula involving the body and glenoid with extension into the articular surface.

¶57

b) Fracture of 12^th rib on right side.

¶58

c) Contusion of right lower lobe with mild right sided haemothorax.”

¶59

The appellant being a driver of the bus, definitely suffer inconvenience due to the above injuries. The evidence of PW-3 shows that he treated the appellant and he states that there is disability at right lower limb and right upper limb. Both these limbs are crucial for the purpose of the avocation of the appellant. However, he had continued in service and therefore the component which consists of his extra earning should have been considered by the Tribunal in awarding the compensation. Under these circumstances, the compensation awarded by the Tribunal has to be reassessed. There are four fractures which appellant has sustained as noted supra and therefore, a sum of

¶60

¶61

NC: 2023:KHC:23291 MFA No. 4108 of 2017

¶62

Rs.60,000/- to be just compensation as against a sum of Rs.40,000/- awarded by the Tribunal.

¶63

The Tribunal has considered Rs.11,860/- as salary and awarded a sum of Rs.47,265/- towards loss of income during the laid up period i.e., to the extent of four months which is based on leave certificate produced by him. Hence, the said amount has to be recalculated as Rs.16,500x4=66,000/-.

¶64

The Tribunal has awarded a sum of Rs.50,000/under the head of 'loss of amenities in life'. The loss of amenities in life has to consider the discomfort which he is suffering in his rest of life as driver. It is evident that extra amount which he used to earn by working as over-time has been reduced and due to discomfort he is unable to earn such extra amount which was permissible by the employer. Under these circumstances, the compensation under the 'head of loss of amenities in life' needs to be enhanced and such amount has to take into its fold, the loss which he may incur for being incapable of doing such over time. Such compensation is not amenable for calculation and therefore it would be just and proper to award a sum of Rs.80,000/- under this head.

¶65

10 - NC: 2023:KHC:23291 MFA No. 4108 of 2017

¶66

The compensation under the head of 'medical

¶67

expenses' and 'future medical expenses' do not require any enhancement.

¶68

The appellant was in-patient for a period of 14 days and therefore it would be just and proper to award a sum of Rs.15,000/- under this head and that is Rs.10,000/- awarded by the Trial Court.

¶69

Hence, the appellant is entitled for a total

¶70

compensation of Rs.73,735/- (enhancement is Rs.3,49,500 - Rs.2,75,765 = Rs.73,735/-) as below:

¶71

Sl.No.	Compensation under different Heads	Amount in (Rs.)
1.	Pain and Sufferings	60,000
2.	Loss of income on the basis of disability	-nil-
3.	Loss of income during laid off period	66,000
4.	Loss of amenities in life	80,000
5.	Medical expenses	1,18,500
6.	Future Medical expenses	10,000
7.	Attendant and Misc. expenses	15,000
	Total	3,49,500
	Less Granted by Tribunal	2,75,765
	Enhancement	73,735

¶72

11 -

¶73

NC: 2023:KHC:23291 MFA No. 4108 of 2017

¶74

In the result the appeal is liable to be allowed in part. Hence, I pass the following:

¶75

ORDER

¶76

The appeal is allowed in part .

¶77

The appellant is entitled for an additional compensation of Rs.73,735/- along with the interest rate of 6% per annum from the date of realisation.

¶78

Respondent No.2-Insurance company shall deposit the sum with in a period of six weeks.

¶79

Entire amount of his enhancement is to be released to the appellant.

¶80

Sd/JUDGE

¶81

PK List No.: 1 Sl No.: 88 CT: ABS

Mr Harischandra v. Mr Yogish K

Case brief

What is this about?

What did the court decide?

Mr Harischandra v. Mr Yogish K

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

Sri Suresh K Vs Sri Lal Sab

Sri Thammaiahgowda Vs Divisional Controller

Sri Vasu Vs Hoovinahaklu Estate

Ismail Vs Sri. Srinivasa

Roopendra. H. H. Vs the Manager

Sridhar G L Vs Prakash Kajjuragi