Partly allowed

Ismail v. Sri. Srinivasa

Karnataka HC6 Jul 2023MFA/4194/2019

Case brief

AI extract

What is this about?

The High Court allowed this motor accident appeal in part, enhancing compensation awarded by the Motor Accident Claims Tribunal from Rs. 8,24,760 to Rs. 13,29,900. The court reassessed the petitioner's disability and adjusted various compensation heads considering permanent mental and physical injuries.

What did the court decide?

Enhanced compensation of Rs. 5,05,140 awarded in addition to the existing award, with 6% p.a. interest, to be deposited by the insurance company.

Ismail Vs Sri. Srinivasa — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:23812 MFA No. 4194 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF JULY, 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. 4194 OF 2019 (MV-I)

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BETWEEN:

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ISMAIL, AGED ABOUT 32 YEARS, S/O IMAM SAB, REPRESENTED BY HIS WIFE, SMT. RIYANABANU, AGED ABOUT 31 YEARS, W/O ISMAIL, C/O BASHASAB, S/O KHASIM SAB, DODDABATHI VILLAGE, DAVANAGERE TALUK AND DISTRICT.

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…APPELLANT

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(BY SRI CHIDAMBARA G S, ADVOCATE)

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

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AND:

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SRI SRINIVASA, AGED ABOUT 41 YEARS, S/O YALLAPPACHAR, R/O SJM BADAVANE, BHARAMASAGARA VILLAGE, CHITRADURGA TALUK & DISTRICT.

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SRI DADAPEER, AGE: MAJOR, S/O BABASAB, NO.91, MEHABOOB NAGAR,

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DAVANAGERE. OWNER OF MOTOR CYCLE BEARING NO. KA-15-H-3833.

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THE MANAGER, HDFC ERGO GENERAL INSURANCE COMPANY LIMITED, 6TH FLOOR, LEELA BUSINESS PARK, ANDERIKURIYA ROAD, ANDHERI EAST, MUMBAI-400 059.

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…RESPONDENTS

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(BY SRI A.N KRISHNASWAMY, ADVOCATE FOR R3; R1 SERVED AND UNREPRESENTED; NOTICE TO R2 IS D/W V/O DATED 04.02.2021)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.4.18 PASSED IN MVC NO. 574/15 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, MEMBER, MACT-IV DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal by the petitioner through his wife is

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directed against the judgment and award in MVC No.574/2015 passed by learned Principal Senior Civil Judge and Member, MACT-IV, Davangere, dated

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NC: 2023:KHC:23812 MFA No. 4194 of 2019

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16-04-2018, whereby, compensation of Rs.8,24,760/- has been awarded.

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Brief facts of the case:

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On 04.10.2014 at about 10.30 p.m., while the

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injured Ismail, after completion of his work in Dhaba walking towards his village Sultanipura, the driver of motor cycle bearing Reg.No.KA-15/H-3833 coming from Chitradurga towards Bharamasagara in a rash and negligent manner dashed against the petitioner resulting in the petitioner falling down and sustaining closed head injury with parietal bone depression fracture and right front temporal SDH with left clavical fracture. After the accident, he become unconscious and immediately shifted

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to SSIMS Hospital, Davanagere. He was admitted as inpatient from 5.10.2014 to 30.10.2014 wherein he underwent surgery and took treatment by spending Rs.4,50,000/- towards medical expenses and nourishment. Inspite of better treatment he has not recovered from the head injuries and has not regained his strength and

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mental power and has become mentally disoriented person and unable to lead the life independently and he cannot walk and do any work independently and bed ridden for the rest of his life. He is aged about 27 years, become virtually a living dead person, having lost his memory power and dependant on others for his daily needs and even for attending nature call. Hence he lost his earning capacity and adequate compensation be awarded to him from the owner and insurer of the Motor Cycle.

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After receipt of notice, the respondents No.2 and 3 appeared through their respective counsel, the respondent No.1 did not appear and hence placed exparte.

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The respondent No.3 Insurance Company filed the objection statement denying the petition averments. It is contended that, the respondent No.1 had no valid DL to drive such class of vehicle; the respondent No.2 knowingly entrusted the said vehicle to the driver who had no valid DL; the respondent No.2 violated the terms and conditions of the policy, as such it is not liable to pay the

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compensation. The respondent No. 3 also denied the age, occupation and income of the injured petitioner. Hence

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prayed to dismiss the petition.

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On the basis of the above pleadings, the Tribunal

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framed appropriate issues and the wife of the petitioner was examined as PW1 , one witness was examined as PW2 and Exs.P1 to P20 were marked in evidence. The official

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of the respondent No.3 examined two witnesses as RWs-1

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and 2 and Exs.R1 to R4 were marked .

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After hearing the arguments the Tribunal awarded

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compensation of Rs.8,24,760/- under the following heads:

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Painand suffering	Rs. 40,000/-
Food and nourishment and attendant charges	Rs. 45,000/-
Loss of income during laid up period	Rs. 24,000/-
Medicalexpenses	Rs.4,12,000/-
Loss ofamenities and unhappiness	Rs. 10,000/-
Loss of income due to disability	Rs.2,93,760/-
Total	Rs.8,24,760/-

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Being aggrieved by the judgment and award, the petitioner through his wife has approached this Court in appeal seeking enhancement.

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On issuance of notice, the respondent No.3Insurance Company has appeared through its counsel before this Court, respondent No.1 did not appear despite proper service of notice and notice to the respondent No.2 was dispensed with.

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The arguments by learned counsel for the appellant/petitioner and learned counsel for respondent No.3-Insurance Company were heard and perused the Tribunal records.

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During the pendency of this appeal, this Court felt that, the claim of the appellant that he is incapable of discharging any work at all, given the fact that he had suffered a head injury needs to be ascertained and therefore, by virtue of order dated 16-8-2022, the petitioner was directed to appear before the Medical Board at Government Hospital, Davanagere and to get a report

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as to whether he would be able to discharge any work. In pursuance to such order, the petitioner had appeared before the Medical Board at the Government Hospital,

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NC: 2023:KHC:23812 MFA No. 4194 of 2019

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Davangere and the report of the Medical Board is submitted to this Court which is part of the record.

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The learned counsel appearing for the appellant/ petitioner contended that the petitioner had suffered the head injury which has resulted in the memory loss and personality disorder and the petitioner is now dependent upon his family members for his day to day living. Therefore, he contends that the functional disability of the petitioner was not properly assessed by the Tribunal and the evidence of PW2 should have been accepted by it. He also contends that the compensation awarded by the Tribunal is abysmally low and inadequate qua the injuries and the disability sustained.

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Per contra, learned counsel for the respondent No.3-Insurance Company contends that the petitioner has not suffered the disability which incapacitates him to appear before the Court and that the Tribunal should have assessed the disability by summoning the petitioner. He contends that the evidence of PW2 only speaks of the

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head injury and therefore, the Tribunal is justified in holding the disability of 18%. Therefore, he has supported the conclusions and the quantum of the compensation awarded by the Tribunal.

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The fact that there was an accident involving the

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motor cycle owned by respondent No.2 driven by respondent No.1 and insured by respondent No.3 is not in dispute. The accident has obviously resulted in injury to the petitioner. The petitioner through his wife contend that he was working in Daba as a labourer and while he was returning to his village, the accident has happened resulting in the permanent disability. On the basis of the documents produced before the Tribunal, the Tribunal has come to the conclusion that the petitioner has sustained injuries resulting in disability. The question now before this Court is in respect of the extent and nature of the disability sustained by the petitioner.

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The PW2 in his testimony as well as the disability certificate issued by him states that the petitioner was

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diagnosed to have head injury with skull bone fracture, subdual hematoma and left clavicle fracture. The petitioner had underwent surgery and he had pleural effusion for which ICD was placed. He has also underwent tracheotomy for respiratory support. PW2 states that petitioner is having decreased memory, repeated head ache and giddiness and decreased interest in daily activities. He states that MMSC score is 17/30 and he has psychological disability of 35% and physical disability of 20%. The discharge summaries at Ex.P9 and other documents show that there was certain problem in respect of his throat and vocal chords.

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The report of the Medical Board of District Hospital, Davangere, discloses that ' there is no significant orthopedic disability to the petitioner' . It was noticed by the ENT Expert that 'there is bilateral vocal cord paresis and a speech therapy was advised' . The observation of the Psychiatrist shows that he petitioner is suffering from ' depression, personality disorder and mild cognitive

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impairment, post head injury and has 40% disability' . The Chairman of the Board has noted that 'there is traumatic organic personality disorder with mild cognitive impairment which accounts for 40% disability' . The report is accompanied by the notes of the detailed examination.

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When the above evidence of PW2 and the report of the Medical Board, District Government Hospital, Davangere, are considered with reference to the avocation of the petitioner that he was a labourer in a Dhaba, it is evident that the functional disability is not to the extent of 100% as contended by the learned counsel for the petitioner. The mental capacities of the petitioner were assessed by the Medical Board and it has opined that there is a disability of 40%. It has not stated anything about the functional disability. Moreover, there is absolutely no other physical disability which was perceived by the Medical Board. Hence, I do not find any reasons to discard the evidence of PW2 who says that there is a disability of 35%. Obviously, the petitioner can work in his home and

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there is nothing on record to show that the petitioner continuously need the help of another person. There is no material to show that even for going for nature call, the petitioner need the assistance of a family member. Hence, this Court holds that the functional disability of the petitioner is 35%.

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The fact that the petitioner was aged about 28 years as on the date of the accident is not in dispute. The Tribunal has assessed the notional income of the petitioner at Rs.8,000/- per month. The guidelines issued by KSLSA for settlement of the disputes before the Lok Adalat prescribe the notional income of Rs.8,500/- per month for the year 2014. In umpteen number of decisions and also in Smt. Mariyamma Vs. Suyambulingam V and another,¹ the Division Bench of this Court has held that the guidelines issued by KSLSA are in general conformity with the wages fixed under the Minimum Wages Act.

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1 MFA No.7404/2014 DD 6-12-2022

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Hence, the loss of future income on account of disability is calculated as Rs.8,500/- x 12 -x17 x 35%=6,06,900/-.

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The Tribunal has awarded a sum of Rs.40,000/-

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under the head of pain and sufferings. It is evident that the petitioner had developed complications which had resulted in tracheostomy. Hence, a sum of Rs.75,000/- is awarded to the petitioner under this head.

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The Tribunal has awarded a sum of Rs.45,000/under the head of 'food and nourishment and attendant charges'. It has come in the evidence that the petitioner has to take prolonged follow up treatment for the injuries sustained by him. He was inpatient for more than three months. Hence, it would be just and proper to award a sum of Rs.90,000/- under this head.

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The Tribunal has awarded a sum of Rs.24,000/under the head of 'loss of income during the laid up period'. Considering the nature of the injuries, it can safely be held that he was unable to resume his work atleast for

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a period of six months and therefore, a sum of

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Rs.51,000/- (Rs.8,500/- x 6) is awarded to him under this head.

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The records reveal that the petitioner need further treatment and there appears to be necessity of speech therapy also. Hence, a sum of Rs.20,000/- has to be awarded towards 'future medical expenses', in addition

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to a sum of Rs.4,12,000/- which was awarded by the Tribunal towards medical expenses.

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The Tribunal has awarded a sum of Rs.10,000/under the head of 'loss of amenities and unhappiness' which is evidently inadequate. A personality disorder has

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occurred to the petitioner on account of the accidental injuries. Therefore, a sum of Rs.75,000/- has to be awarded to him under this head.

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Hence, the petitioner is entitled for a total

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compensation of Rs.13,29,900/- under the following heads:

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NC: 2023:KHC:23812 MFA No. 4194 of 2019

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Pain and suffering	Rs. 75,000/-
Food and nourishment and attendant charges	Rs. 90,000/-
Loss of income during laid up period	Rs. 51,000/-
Medical expenses	Rs. 4,12,000/-
Future medical expenses	Rs. 20,000/-
Loss of amenities and unhappiness	Rs. 75,000/-
Loss of income due to disability	Rs. 6,06,900/-
Total	Rs.13,29,900/-
Less: Awarded by Tribunal	Rs. 8,24,760/-
Enhancement	Rs. 5,05,140/-

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Thus, the petitioner is entitled for a enhanced compensation of Rs.5,05,140/- together with interest at 6% p.a. Hence, the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The impugned judgment and award passed

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by the Tribunal is modified by awarding enhanced compensation of Rs.5,05,140/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its realization.

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(iii) The respondent No.3-Insurance company is

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directed to deposit the compensation amount within

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four weeks from today.

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(iv) Rest of the order of the Tribunal remains

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unaltered.

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Sd/JUDGE

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tsn* List No.: 1 Sl No.: 97

Ismail v. Sri. Srinivasa

Case brief

What is this about?

What did the court decide?

Ismail v. Sri. Srinivasa

Case brief

What is this about?

What did the court decide?

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