Partly allowed

Sri Sachidananda Acharya v. Sri Subhas

Karnataka HC19 Jan 2023MFA/4236/2018

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal challenged a judgment awarding Rs.4,83,422 compensation for a motor accident. The Single Judge allowed the appeal in part, enhancing the total compensation to Rs.13,49,422 after recalculating functional disability at 50% and adding compensation for loss of future prospects and other heads.

What did the court decide?

The appeal was allowed in part, modifying the award to grant enhanced compensation of Rs.13,49,422, including an additional Rs.8,66,000 with interest.

Sri Sachidananda Acharya Vs Sri Subhas — Motor Accident Claims | Karnataka HC (2023)

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MFA No. 4236 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 4236 OF 2018 (MV-I)

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BETWEEN:

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SRI SACHIDANANDA ACHARYA, AGED ABOUT 39 YEARS, S/O. NARASIMHA ACHARYA, R/AT. MATHASHREE NILAYA, MELMANE, TALLUR VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT - 576230.

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…APPELLANT

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(BY SRI. NAGARAJA HEGDE, ADVOCATE)

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Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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AND:

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SRI SUBHAS AGED ABOUT 39 YEARS, S/O. MANJUNATHA POOJARY, R/AT. HALELAIVE, HANGALURU VILLAGE, KOTESHWARA POST, KUNDAPURA TALUK, UDUPI DISTRICT - 576222.

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THE UNITED INDIA INSURANCE CO. LTD., NH 7, KANCHAN TOWERS, VODERHOBLI, KUNDAPURA - 576201. REPT. BY ITS DIVISIONAL MANAGER

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…RESPONDENTS

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MFA No. 4236 of 2018

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(BY SRI. O. MAHESH, ADVOCATE FOR R2 (THROUGH VIDEO CONFERENCE)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04/08/2017, PASSED IN MVC NO.158/2014, ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MACT, UDUPI, (SITTING AT KUNDAPURA), KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal is filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as ‘MV Act’ for brevity) by the appellant–claimant, calling in question the judgment and award dated 04.08.2017, passed in M.V.C.No.158/2014, on the file of the Motor Accident Claims Tribunal, Udupi, Sitting at Kundapura, (hereinafter referred to as ‘the Tribunal’ for brevity) for seeking enhancement of the compensation.

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MFA No. 4236 of 2018

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Brief facts:

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On 07.02.2014, at about 8.30 a.m., hours the

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claimant was riding his Motor cycle bearing registration No.KA-20-EB-5520, from Tallur side towards Neralakatte side, and on the left side of the Tallur Neralakatte Road, when he reached a place near Sahadeva Hall, Parthikatte Tallur Village, at that time a motor cycle bearing registration No.KA-20-X-1134 came from Tallur side towards Neralakatte side ridden by its rider in high speed and in rash and negligent manner and over speeding and dashed against the claimant’s motor cycle hind part. Due to the said impact, the claimant fell on road along with his motorcycle and sustained major injuries and his motor cycle was damaged.

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3. Hence, a claim petition was filed by the appellant-

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claimant under Section-166 of the M.V. Act, claiming compensation for the injuries suffered in the accident. The Tribunal on appreciating the materials on record, allowed

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MFA No. 4236 of 2018

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the claim petition in part, and awarded a compensation of Rs.4,83,422/-, along with interest at 6% per annum from the date of petition till the date of realisation. The Tribunal held respondent Nos.1 to 2 therein, liable to pay the compensation.

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Heard arguments of the learned counsel for the appellant-claimant and the learned counsel for respondent No.2 – insurance company and perused the materials on record.

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The compensation awarded by the Tribunal is

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as follows:

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Injury, pain and sufferings	: Rs.	50,000/-
Medical expenses	: Rs.	26,022/-
Loss of earning during treatment	: Rs.	2,400/-
Bed rest	: Rs.	72,000/-
Loss of future earning capacity	: Rs.	3,24,000/-
Conveyance, nourishment and attendant charges	: Rs.	9,000/-
TOTAL	: Rs.	4,83,422/-

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MFA No. 4236 of 2018

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As per the Wound Certificate at Exhibit-P7 and

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Discharge Summary at Exhibit-P8, coupled with the evidence of PW-3, Doctor and the documentary evidence, it is proved that the claimant had suffered, Hematoma in DL Spine with Gibbus EHL Grade-4, Fracture of D-12 and fracture of L1-Spine. The aforesaid injuries are grievous in nature. Due to the injuries suffered, the claimant is not able to do the carpenter work, which he was doing before. Therefore, it would be amounting to 100% loss of earning capacity. But the Tribunal has taken 20% of functional disability and awarded meager amount of compensation. Therefore, the learned counsel for the appellant- claimant prays for enhancement of compensation.

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On the other hand, the learned counsel for the respondent – insurance company submitted that the claimant suffered permanent physical disability of 20% to the whole-body and that is correctly taken by the Tribunal.

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MFA No. 4236 of 2018

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Therefore, prays to dismiss the appeal by confirming the

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judgment and award passed by the Tribunal.

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In the present case, the medical evidence and

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the evidence of the Doctor proves that the claimant had suffered fracture to L1 and D12 spine, affecting the spinal cord of the claimant. The doctor in his evidence has stated that on 07.02.2014, the claimant was admitted in the hospital with the history of road traffic accident. Again the claimant was admitted on 25.05.2015 to Chinmayi Hospital, Kundapura and upon clinical and Radiological examination submitted that the claimant was having 20% permanent disability to his whole-body. The Doctor has stated that due to the disability, the claimant will not be able to do carpentary work or any other labour activities. Hence, formed opinion that the claimant being Carpenter has lost 75% of earning capacity due to the physical disability. Therefore, the Doctor has stated what is the physical disability and how it affects the work of the

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MFA No. 4236 of 2018

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carpenter of the claimant. The work of carpentry requires some physical strength either by standing for long time or sitting on the floor for long time. The claimant was summoned through video conference and has stated that he was not able to do work as carpenter by sitting on the floor and his carpentry work is affected.

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9. It is found that the claimant is sitting on the

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chair. Therefore, whatever extent is possible by sitting on the chair, that only the claimant is able to do as carpenter. Therefore, it cannot be said that the claimant has suffered 100% disability towards loss of earning capacity or even 70% of loss of earning capacity, as stated by the Doctor.

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The assessment of the physical disability and functional disability affecting the earning capacity are two different aspects. In some cases, the percentage of physical disability may be on lesser side, but that may affect substantially in respect of concerned work is concerned. In the present case, the claimant is found to be

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MFA No. 4236 of 2018

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able to sit on the chair and do the work like that of supervision and also may be able to do petty business by

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sitting on the chair, but he will not be able to do carpentry work with this disability. Therefore, considering all these aspects as above stated, it is just and proper to hold 50% of functional disability affecting the earning capacity of the claimant.

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Therefore, for the injuries sustained the compensation awarded under the head ‘pain and

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sufferings’ is found to be on lesser side and the same is

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enhanced to a sum of Rs.60,000/- .

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The compensation amount awarded by the Tribunal under the ‘ Medical Expenses’ at Rs.26,022/- is per actual bills and receipts and the same is kept in tact.

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The Tribunal has not awarded compensation

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towards ‘ Loss Of Amenities’ and hence a sum of Rs.35,000/- is awarded under the said head.

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MFA No. 4236 of 2018

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The Tribunal has awarded compensation towards ‘Food, Nourishment, Conveyance and

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Attendant Charges’ at Rs.9,000/-, which is on lower side and hence a sum of Rs.20,000/- is awarded under the said head.

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The claimant was aged 37 years and the accident has occurred during the year 2014. The Tribunal has held the income of the claimant at Rs.9,000/- per month, which appears to be just and proper, as per Chart of notional income recognized by the Karnataka State Legal Services Authority. The Tribunal had taken 20%

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functional disability to the whole-body. The criteria for calculating functional disability is elaborately discussed by the Hon’ble Supreme Court in the case of Raj Kumar Vs.

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Ajay Kumar and Another¹ Therefore, considering the principles laid down by the Hon’ble Supreme Court stated supra, and the injuries suffered by the appellant and the

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1 (2011) 1 SCC 343

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MFA No. 4236 of 2018

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avocation being carpenter, certainly the disability will affect his earning capacity. Accordingly, 50% functional disability to the whole-body as assessed by the Doctor is taken.

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As per the Judgment of the Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi² and also as per the decision of this Court in the case of

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New India Assurance Company Vs. Abdul S/o Mehaboob Tahasildar³ 'loss of future prospects in life' is permissible in the case of injuries where disability occurred affecting the earning capacity. The Division Bench in the above case was pleased to grant compensation by adding income towards loss of future prospects in life. In the case of Abdul S/o Mehaboob Tahasildar referred to supra, the claimant - appellant was a tailor and had suffered 20% disability. Therefore, compensation including

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2 (2017) 16 SCC 680

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3 MFA.NO.103807/2016 C/W MFA.NOS.103835/2016 & 103807/2018

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DD.27.05.2022

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MFA No. 4236 of 2018

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loss of future prospects in life was awarded. In the present

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case, 40% ‘loss of future prospects’ is to be added. The appropriate multiplier applicable as per the judgment of the Hon’ble Supreme Court, in the case of Smt.Sarla

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Verma & Others. Vs. Delhi Transport Corpn And

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Another⁴ is ‘15’. Therefore, the compensation under the head ‘Loss of Earning Capacity Due to Disability’ is recalculated and quantified as follows:

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Rs.9,000 + 3,600 (40% of 9,000) x 50% x 15 x 12 = Rs.11,34,000/-

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17. Therefore, in modification of the award of the

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Tribunal, the appellant-claimant is entitled to the following

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compensation:

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Injury, pain and sufferings	:	Rs.	60,000/-
Medical expenses	:	Rs.	26,022/-	Kept in tact
Loss of earning during treatment	:	Rs.	2,400/-	Kept in tact

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4 AIR 2009 SC 3104

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MFA No. 4236 of 2018

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Bed rest	:	Rs.	72,000/-
Loss of Amenities	:	Rs.	35,000/-
Conveyance, nourishment and attendant charges	:	Rs.	20,000/-
Loss of future earning capacity (9,000 + 3,600 (40% of 9,000x 50% x 15 x 12)	:	Rs.	11,34,000/-
TOTAL	:	Rs.	13,49,422/-

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Therefore, the appellant-claimant is entitled for compensation of Rs.13,49,422/- as against Rs.4,83,422/-. The appellant – claimant is entitled for an additional compensation of Rs.8,66,000/-

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(Rs.13,49,422 – Rs.4,83,422) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. The Insurance Company is directed to deposit the amount of total compensation within Eight Weeks from the date of receipt of the certified copy of this judgment.

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MFA No. 4236 of 2018

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19. Accordingly, I pass the following:

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ORDER

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i. The appeal is allowed in part . ii. The impugned judgment and award dated 04.08.2017, passed in M.V.C.No.158/2014, on the file of the Motor Accident Claims Tribunal, Udupi, Sitting at Kundapura, is modified to the aforesaid extent.

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iii. The appellant – claimant is entitled for an additional compensation of Rs.8,66,000/(Rs.13,49,422 – Rs.4,83,422) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. However, the appellant-claimant is not entitled for interest for the delayed period of 172 days, in filing the appeal.

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MFA No. 4236 of 2018

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iv. Respondent No.2 – insurance company shall pay the compensation to the

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appellant/claimant.

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v. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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vi. No order as to costs.

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vii. Draw award accordingly.

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Sd/JUDGE

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JJ List No.: 1 Sl No.: 56

Sri Sachidananda Acharya v. Sri Subhas

Case brief

What is this about?

What did the court decide?

Sri Sachidananda Acharya v. Sri Subhas

Case brief

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