Allowed

Sri Venkateshappa v. Sri Naganand S

Karnataka HC12 Sept 2023MFA/4142/2014

Case brief

AI extract

What is this about?

In this motor accident appeal, the High Court enhanced the compensation awarded by the Motor Accidents Claims Tribunal. The Court recalculated future earnings based on notional income, increased damages for pain and suffering and amenities, and added amounts for lost wages during hospitalization, future medical treatment, and crutches, granting a total of Rs. 3,51,760/-.

What did the court decide?

Total compensation enhanced to Rs. 3,51,760/-; impugned judgment and award of the Tribunal modified accordingly.

Sri Venkateshappa Vs Sri Naganand S — Writ and Judicial Review | Karnataka HC (2023)

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NC: 2023:KHC:33030 MFA No. 4142 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO. 4142 OF 2014 (MV-I)

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BETWEEN:

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SRI VENKATESHAPPA S/O SRI.GURAPPA AGED ABOUT 62 YEARS OCC:AGRICULTURAL COOLIE R/AT AANEMODAGU POST, SHIDLAGHATTA TALUK, CHIKKABALLAPURA DISTRICT

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…APPELLANT

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{BY SRI.SURESH M.LATUR.,ADVOCATE (THROUGH VC)}

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AND:

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Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH

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Location: HIGH COURT OF KARNATAKA

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SRI NAGANAND S NO.50, 2^ND CROSS RMV EXTENSION, NEAR MEKRI CIRCLE, PALACE ORCHARD, BENGALURU -560 080

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THE MANAGER

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ICICI LOMBARD GENERAL INSURANCE CO.LTD., HOSUR MAIN ROAD, 2^ND FLOOR PVR COMPLEX, MADIVALA KORAMANGALA

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BENGALURU -560 068

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… RESPONDENTS

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(BY SRI.MADUKAR M DESHPANDE, ADVOCATE FOR R-1; SRI A.N.KRISHNA SWAMY, ADVOCATE FOR R-2)

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NC: 2023:KHC:33030 MFA No. 4142 of 2014

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.02.2014 PASSED IN MVC NO.7359/2012 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE & XXVIII ACMM, (SCCH-13), BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal is preferred by the appellant/claimant being aggrieved by the judgment & award passed by the Motor Accidents Claims Tribunal, Bengaluru (SCCH-13) { 'Tribunal' for short) in MVC No.7359/2012 dated 3^rd February 2014. Being dissatisfied with the inadequate and meager compensation awarded by the Tribunal, the appellant/claimant is before this Court seeking enhancement of compensation

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Parties to this appeal shall be referred to as per their status before the Tribunal.

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NC: 2023:KHC:33030 MFA No. 4142 of 2014

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Brief facts of the case are as under:

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On 22.7.2012 at about 3.00 p.m. while the petitioner

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was riding TVS moped bearing No.KA-05-HI-9344, on NH-7 near Doddapayalagurki village gate, Chickaballapura taluk, at that time, the driver of the Car bearing Registration No.KA-01MG-2385 came from the opposite direction at high speed and in a rash and negligent manner and dashed against the TVS moped. Due to the impact of the car with the TVS moped driven by the claimant, the claimant alongwith the pillion rider suffered grievous injuries. It is the case of the claimant that he has spent considerable amount towards treatment and nourishment. The claimant is stated to be an agriculturist by profession and he is aged about 62 years as on date of occurrence of the accident which was caused due to the negligence of driver of the offending car. It is also pleaded and claimed that the claimant was earning Rs.9,000/- per month from agriculture and in view of the sudden and unfortunate accident, his life is crippled and having sustained disability due to the negligence caused by the driver of the offending car, he has lost his earnings during the medical treatment and his future earning capacity is dented and

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NC: 2023:KHC:33030 MFA No. 4142 of 2014

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diminished. In view of the financial loss, physical injury and emotional stress caused by the accident by the driver of the offending car, the claimant filed a claim petition claiming compensation for the injuries sustained, loss of future income etc.,

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On service of notice to Respondent Nos.1 and 2, who are none other than the owner of the offending vehicle and the insurance company, they filed the written statement and denied the occurrence of the accident, involvement of the vehicle and that the accident occurred due to rash and negligent driving of driver of the offending vehicle. However, the respondents admitted the policy having been taken in respect of the offending vehicle involved in the accident, but disputed the amount of compensation including the income of the claimant.

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On the basis of the pleadings, the Tribunal framed the following issues for consideration:

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i) Whether the Petitioner proves that on 22.07.2012 at about 3 p.m, when he was riding TVS Moped bearing No.KA-05-HI9344, on NH-7, Near Doddapayalagurki Village Gate, Chikkaballapura Taluk, at that

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time, the driver of the Car bearing No.KA01-MG-2385 came in the opposite direction at high speed and in a rash or negligent manner so as to endanger human life and suddenly took right turn without giving any signal and dashed against the TVS Moped and due to which he had fallen and sustained multiple injuries?

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ii) Whether the petitioner is entitled for compensation as claimed? If so, to what amount and from whom?

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In order to substantiate the issues and establish his case, claimant examined himself as PW.1, pillion rider as PW.2 and doctor as PW.3 and got marked Ex.P1 to Ex.P18. On the basis of the oral and documentary evidence adduced by the parties, the Tribunal partly allowed the claim petition and awarded total compensation of Rs.1,50,060/- together with interest at 6% per annum and directed Respondent Nos.1 and 2 jointly and severally to pay the compensation. Further, the 2^nd respondent/Insurance Company was also directed to deposit the compensation within two months from the date of the impugned judgment.

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NC: 2023:KHC:33030 MFA No. 4142 of 2014

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Aggrieved by the impugned judgment & award passed by the Tribunal, the present appeal is filed by the appellant/claimant seeking enhancement of compensation on various grounds.

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I have heard learned counsel for the parties.

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It is the vehement contention of learned counsel for

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the appellant/claimant that the Tribunal awarded meager compensation and not taken into consideration material evidence placed on record including Exhibits which are marked as Ex.P1 to Ex.P18. He further contends that the Tribunal not taken correct income of the appellant/claimant for calculation of compensation in the road traffic accident. He further contends that the Tribunal failed to take into consideration the evidence of the doctor/PW.3 in the proper perspective and not awarded any compensation towards the loss of income during the laid up period and so also towards future medical expenses. He further contends that the doctor/PW.3 has stated on oath that the claimant suffered disability to the left lower limb at 54% and 27% to the whole body and inspite of the same, the Tribunal not awarded compensation towards loss of amenities and

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purchase of the crutches considering the medical condition of the claimant. On these grounds, learned counsel for the appellant/claimant seeks enhancement of compensation.

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Per contra, learned counsel representing the respondents vehemently controverts the arguments putforth by the learned counsel for the appellant/claimant and contends that the impugned judgment & award passed by the Tribunal is fair, sustainable in law and does not call for any interference at the hands of this Court. He contends that there is no illegality or perversity in the judgment passed by the Tribunal and the Tribunal has rightly taken the income of the claimant at Rs.4,000/- per month in the absence of there being any cogent material with regard to income of the claimant. The Tribunal has taken into consideration all the relevant aspects including the evidence adduced by the three witnesses; the documents marked as Exhibits; the percentage of disability suffered by the claimant; and having considered all these facts awarded total compensation of Rs.1,50,060/-, keeping in mind the advanced age of the claimant to be 62 years as on the date of occurrence of the accident. On these grounds he seeks to dismiss the appeal.

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I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties including the original records.

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It is not in dispute that on 22.7.2012 when the claimant was traveling on the TVS Moped alongwith the pillion rider, the driver of the car bearing Registration No.KA-01-MG2385 came from the opposite direction in a rash and negligent manner and dashed against the vehicle of the claimant, thereby causing the road traffic accident, due to which the claimant sustained the injuries. The same is evidenced by the material documents - Ex.P1 to Ex.P7. Ex.P8 to Ex.P18 are the wound certificates, Discharge summary, X-rays, CT scan film, medical bills etc., produced by both the claimants to show the amount spent by the claimant herein and the pillion rider, who is the claimant in the other connected case. Therefore, there is no dispute with regard to occurrence of the road traffic accident in a public place; involvement of two vehicles in the accident; and the injuries suffered by the claimant which are narrated by the doctor/PW.3, who has stated on oath that the claimant suffered disability to an extent of 54% to the left lower limb and 27% to the whole body.

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NC: 2023:KHC:33030 MFA No. 4142 of 2014

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Though the claimant stated that he was earning Rs.9,000/- per month, nothing has been placed on record to prove the same. Therefore, in the absence of any cogent material with regard to proof of income, this Court will have to rely on the notional income chart of the Karnataka State Legal Services Authority, which prescribes the notional income of Rs.7,000/- per month for the accident occurred in the year 2012. In the present case, the accident having occurred on 22.7.2012, Rs.7,000/- would have to be taken as income of the claimant in accordance with the chart. Since the claimant was aged about 62 years as on the date of the accident, the proper and appropriate multiplier applicable would be '7' as per the judgment in the case of Sarla Verma and others -vs- Delhi Transport Corporation and another reported in (2009)6 SCC 121.

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The doctor/PW.3 has stepped into the witness box and stated about the disability and injuries suffered by the claimant. He has stated on oath that the claimant suffered disability to the left lower limb at 54% and 27% to the whole body. This aspect of the matter has been accepted by the Tribunal and the same is not questioned by the respondents

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and hence the same has to be taken for computation. Therefore, the compensation towards 'loss of future earnings' due to the disability suffered from the accident caused by the driver of the offending vehicle would be Rs.7000 x 12 x 7 x 27% = Rs.1,58,760/- as against Rs.1,02,060/- awarded by the Tribunal.

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The Tribunal has awarded compensation of Rs.40,000/- towards 'injury, pain and suffering'. According to doctor/PW.3, the claimant has suffered fracture of the left tibia, multiple fractures to the left foot, grievous injuries to right hand and other injuries all over the body and there is a reduction of left foot due to the injuries. The disability assessed by the doctor/PW.3 is 54% to the left lower limb and 27% to the whole body. Therefore, the compensation awarded by the Tribunal towards pain and suffering is on the lower side and requires slight enhancement and hence Rs.30,000/- is awarded, in addition to the amount of Rs.40,000/- awarded by the Tribunal under the head of 'injury, pain and suffering'.

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The Tribunal has not awarded any amount towards 'loss of amenities'. I deem it appropriate to award Rs.25,000/-

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NC: 2023:KHC:33030 MFA No. 4142 of 2014

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under this head considering the injuries sustained by the claimant.

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It is also seen that the Tribunal has awarded Rs.8,000/- towards 'loss of earnings during medical treatment'. Considering the fact that this Court has assessed the income of the claimant at Rs.7,000/- per month and the claimant having been admitted in the hospital for more than a month and having suffered multiple fractures and injuries and the doctor having assessed disability of 27% to the whole body and as there is a reduction in the left foot due to the injuries, atleast four months period to be taken as non-earning period and laid up period and accordingly Rs.28,000/- (Rs.7,000 x 4) is awarded under the head of 'loss of earnings during the laid up period'.

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The doctor/PW.3 has stated in his evidence that for removal of implants and control of infections, the claimant would require Rs.25,000/- to Rs.30,000/-. Further, the claimant has to incur certain expenditure for future medical treatment. Therefore, I deem it appropriate to award

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NC: 2023:KHC:33030 MFA No. 4142 of 2014

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Rs.35,000/- towards future medical treatment and for removal of implants.

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{

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The photographs produced by the claimant at Ex.P11 go to show that the claimant would require crutches to walk around in view of disability of 27% to the whole body. Therefore, Rs.20,000/- is awarded towards 'purchase of crutches for the future purpose'.

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It is also seen that during the period of treatment in

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the hospital for a period of one month, the appellant/claimant has incurred some expenditure towards food, nourishment, conveyance etc., and the Tribunal has not awarded any amount towards the same. Therefore, Rs.15,000/- (i.e., at the rate of Rs.500/per day) is awarded towards food, nourishment, conveyance etc.,

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In view of the above discussion, the appellant/claimant would be entitled to total compensation of Rs.3,51,760/- as mentioned in the table below as against Rs.1,50,060/- awarded by the Tribunal.

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Sl. No.	Head of compensation	Amount of compensation awarded
1	Loss of future earnings	Rs.1,58,760=00
2	Injury, pain and suffering	Rs. 70,000=-00
3	Loss of amenities	Rs. 25,000=00
4	Loss of earnings during laid up period	Rs. 28,000=00
5	Future medical treatment and removal of implants	Rs. 35,000=00
6	Purchase of crutches for future purpose	Rs. 20,000=00
7	Food, nourishment, conveyance etc.,	Rs. 15,000=00
	Total	Rs.3,51,760=00

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In view of the above, I proceed to pass the following:

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O R D E R

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i) The appeal is allowed in part .

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ii) The appellant/claimant is entitled to total compensation of Rs.3,51,760/- (Rupees three lakhs fifty-one thousand seven hundred and sixty only) as against Rs.1,50,060/- awarded by the Tribunal alongwith interest at 6% per annum from the date of petition till the date of deposit.

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NC: 2023:KHC:33030 MFA No. 4142 of 2014

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iii) The impugned judgment & award passed by the Tribunal in MVC No.7359/2012 is modified accordingly.

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iv) The Respondent Nos.1 and 2 are jointly and severally liable to pay the compensation.

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v) The 2^nd respondent/Insurance Company shall deposit the entire compensation amount after deducting the amount, if any already deposited within a period of four weeks from the date of receipt of certified copy of this judgment.

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vi) All other terms and conditions stipulated by the Tribunal shall stand intact.

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vii) It is needles to mention that the entire compensation amount including the amount, if any already deposited by the respondents before the Tribunal or this Court shall be released in favour of the appellant/claimant upon proper verification.

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viii) The original records shall be transmitted to the jurisdictional Tribunal forthwith.

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NC: 2023:KHC:33030 MFA No. 4142 of 2014

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ix) In view of disposal of this Miscellaneous First Appeal, pending interlocutory applications, if any would not survive for consideration and the

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same pale into insignificance.

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Sd/JUDGE

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GSS List No.: 1 Sl No.: 34

Sri Venkateshappa v. Sri Naganand S

Case brief

What is this about?

What did the court decide?

Sri Venkateshappa v. Sri Naganand S

Case brief

What is this about?

What did the court decide?

What the court decided

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