Partly allowed

Mr. v. Nagaraj v Mr. Dinesh Koushik

Karnataka HC14 Jul 2023MFA/4334/2017

Case brief

AI extract

What is this about?

The Karnataka High Court enhanced the compensation awarded by the lower court from Rs.8,45,000 to Rs.11,30,000 for the appellant, a motor accident victim, by adding amounts for loss of amenities, lost income during layup period, and higher future income loss, along with interest.

What did the court decide?

The appeal is allowed in part; compensation enhanced by Rs.2,85,000 with 6% p.a. interest; insurers directed to deposit the amount.

Mr. v Nagaraj Vs Mr. Dinesh Koushik — Medical Negligence | Karnataka HC (2023)

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NC: 2023:KHC:24556 MFA No. 4334 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI MISCELLANEOUS FIRST APPEAL NO. 4334 OF 2017 (MV-I)

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BETWEEN:

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MR. V. NAGARAJ, S/O. MR. VEERAPPA, AGED ABOUT 45 YEARS, AGRICULTURIST AND KIRANI BUSINESS, REPRESENTED BY HIS WIFE, SMT. LEELA, W/O. V. NAGARAJ, AGED ABOUT 39 YEARS, HOUSE WIFE, GUARDIAN, HALIYAR ROAD, HIRIYUR-572 143.

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…APPELLANT

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(BY SRI K. SHASHIKANTH PRASAD, ADVOCATE)

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AND:

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

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MR. DINESH KOUSHIK, S/O. MR. KOUSHIK, MAJOR, OWNER OF MOTOR CYCLE BEARING REG. NO. 16 R-5929, LAKSHMAMMA LAYOUT, HULLYAR ROAD, HIRIYUR-572 143.

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NATIONAL INSURANCE CO. LTD., REP. BY ITS BRANCH MANAGER, B.M. COMPLEX, LAXMI BAZAR, CHITRADURGA-577 501. …RESPONDENTS

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(BY SRI. JANARDHAN REDDY, ADVOCATE FOR R-2; R-1 SERVED, UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.04.2015 PASSED IN MVC

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NO.245/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDL. MACT AT HIRIYUR, 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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Being aggrieved by the judgment and award dated 01.04.2015 passed in MVC No.245/2012 by the learned Senior Civil Judge and Additional MACT, Hiriyur, whereby the petition was partly allowed awarding a sum of Rs.8,45,000/- as compensation, the petitioner, through his wife is before this Court in appeal.

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The brief facts of the case are as below:

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That on 17-5-2008, when the petitioner and his brother were coming on left side of the road after looking

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after their relative at Harthikote village on SH 19 road, Hiriyur taluk at about 4.30 p.m., as pedestrian, the rider of the motor cycle bearing No.KA.16.-R.5929 came in rash and negligent manner and dashed to the petitioner. As a result, petitioner fell down and sustained severe injuries. Immediately, he was taken to Government Hospital Hiriyur,

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after first aid he was shifted to HOSMAT Hospital Bengaluru, wherein he took treatment as inpatient from 17-5-2008 to 31-5-2008 and then shifted to NIMHANS Bangalore, where he took treatment as inpatient under expert neurologist and spent Rs.4,00,000/- towards medical expenses. It was further contended that, prior to the accident, petitioner was hale and healthy, doing agricultural work and earning Rs.1,00,000/- per annum and due to accident injuries, he is unable to do his work. It was further contended that the accident was due to negligence of the rider of the offending vehicle and respondent No.1 and 2 being the owner and insurer of the motor cycle, are liable to pay the compensation.

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On issuance of notice, respondent No.2-Insurance Company appeared through its counsel and filed objections. Despite service of notice, respondent No.1- owner of the motor cycle did not appear and he was placed exparte.

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Respondent No.2-Insurance Company denied the age, occupation and income and nature of accident and

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contended that there is a delay of four days in filing the complaint before the police. It was further contended that petitioner has filed MVC No.297/2008 which was dismissed for non prosecution on 23-2-2010 and again he has filed MVC No.780/2012 before the II Additional Senior Civil Judge, Chitradurga which was dismissed for non prosecution on 15-3-2012 again he has filed the current petition and therefore, it is not maintainable. Further, it was contended that the rider of the offending vehicle was not having valid and effective DL and the respondent No.1 owner entrusted his vehicle and he violated the terms and conditions of policy. It was further contended that, liability if any, is subject to proof of RC, FC and DL and prayed to dismiss the petition.

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The Tribunal on the basis of the above pleadings, framed appropriate issues and wife of the petitioner was examined as PW1 and one witness was examined as PW2 and Exs.P1 to P128 were marked. On behalf of respondent No.2, copy of the policy was marked as Ex.P1.

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After hearing the learned counsel for both the sides,

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the Tribunal allowed the petition in part and awarded a sum

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of Rs.8,45,000/- as compensation under different heads as

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below:

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Towards Pain and suffering	Rs. 50,000/-
Towards loss of future income due to disability	Rs. 3,60,000/-
Towards medical expenses	Rs. 3,70,000/-
Towards future medical expenses	Rs. 50,000/-
Towards attendant charges	Rs. 5,000/-
Towards traveling expenses and future etc.	Rs. 10,000/-
Total	Rs. 8,45,000/-

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Being aggrieved by the said judgment and award,

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the petitioner, through his wife, is before this Court in appeal seeking enhancement.

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On issuance of notice by this Court, respondent No.2-Insurance Company appeared through its counsel and respondent No.1 served and remained absent.

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On admitting the appeal, the Tribunal records have

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been secured.

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Heard the learned counsel appearing for the appellant and learned counsel appearing for respondent No.2-Insurance Company and perused the Tribunal records.

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The learned counsel appearing for the appellant contend that the petitioner had suffered severe head injury and there was a dent in the skull bone which has drastically affected the functioning of the petitioner. It is contended that the petitioner had suffered left temporal acute subdural haemotoma, left temporal contusion and fracture of the right clavicle bone. It is submitted that the skull bone was broken to an extent of 6 inches x 6 inches and this has resulted in the brain being exposed without a skull bone covered by only the skin. He submits that the certificate at Ex.P3 and the other medical records would show that there is a need for further treatment and covering the dent in the skull with artificial covering. He has drawn my attention to the evidence of PW2 who was examined through a Court Commissioner. It is submitted that PW2 had deposed that the disability is permanent and the petitioner was suffering from decreased memory and intermittent headache and he

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could not discharge any work involving complex cerebral function. He had deposed that the defect in the skull bone puts his brain at high risk for further injury and there is a need for another surgery to cover the defect. Ultimately, he has come to the conclusion that there is a disability of 40%.

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He further submits that the petitioner was working as an agriculturist and aged 38 years at the time of the accident and therefore, the functional disability should have been considered by the Tribunal at a higher value. Hence, he prayed for reassessment of the compensation awarded by the Tribunal under the different heads.

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Per contra, learned counsel appearing for the respondent-Insurance company contends that the Tribunal has held the functional disability at 40% as deposed by PW2 and therefore, there is no need for reassessment of the compensation. He contends that there is no evidence to prove the income of the petitioner and therefore, the

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assessment of Tribunal that the petitioner had notional income of Rs.5,000/- per month is proper and correct.

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A perusal of the records disclose that the petitioner did not appear before the Tribunal, but he was represented by his wife. Even the petition was also preferred through the wife of the petitioner. The documents produced by the petitioner disclose that the defect in the skull bone of the petitioner has exposed the brain to the outside world, covered by skin only. The photographs at Exs.P10 to P13 show the same. Coupled with this, the discharge summary produced at Exs.P6, 19 and the other medical records show that the petitioner is in high risk if he goes for work as an agriculturist. Obviously, he can not bear weight on head and he is susceptible for the risks. The evidence of PW2 clearly depict that the petitioner cannot discharge any work involving complex cerebral functions. Therefore, there is no reason to discard the evidence of PW2.

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The Tribunal has accepted the disability stated by PW2 to be at 40% and has calculated the compensation. Obviously, the Tribunal did not spell out that the functional disability of the petitioner is also 40%. On considering the avocation of the petitioner with reference to the disability suffered by him, his functional disability is held to be 40%.

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In the absence of any cogent evidence regarding the income of the petitioner, notional income has to be considered by this Court. As per the guidelines issued by the KSLSA for settlement of disputes before the Lok Adalat, the notional income prescribed for the year 2008 is Rs.5,000/- per month. Hence, there is no need to consider the notional income at higher amount.

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It is evident that the disability suffered by the petitioner is permanent and it also affects the future prospects. I do not find any reason not to consider the impairment of the future prospects on account of the disability suffered by the petitioner. Obviously, he cannot do any manual labour as an agriculturist. Hence, there

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shall be 25% of the notional income which needs to be added to the notional income towards the future prospects. In effect, the multiplicand would Rs.5,000/- + 1,250/- = 6,250/-. Therefore, the loss of future income is calculated as Rs.6,250/- x 12 x 15 x 40%= 4,50,000/-, by adopting multiplier of 15 for the age of 38 years.

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The Tribunal has awarded a sum of Rs.50,000/towards pain and sufferings and the same needs to be enhanced to Rs.1,00,000/- considering the nature of the injuries suffered by the petitioner.

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The Tribunal has awarded a sum of Rs.3,70,000/-

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towards medical expenses which do not require any reconsideration as it is based on the bills produced by the petitioner.

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The Tribunal has also awarded a sum of Rs.50,000/- under the future medical expenses which also do not require any reconsideration.

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The Tribunal has awarded a sum of Rs.5,000/towards the attendant charges. The fact that the petitioner is represented by his wife before the Tribunal and the evidence of PW2 show that petitioner was in need of an attendant continuously. Hence, the compensation under this head is enhanced to Rs.40,000/-. 22. The Tribunal has not awarded any compensation under the head of 'loss of income during the laid up period'. It can easily be inferred from the nature of the injuries that the petitioner was unable to resume his work for a period of six months an therefore, Rs.5,000/- x 6 = Rs.30,000/- is awarded.

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The records reveal that the petitioner has taken treatment at NIMHANS Bengaluru and he was an ordinary resident of Hiriyur of Chitradurga District. Hence, it would be just and proper to award a sum of Rs.40,000/- under the head of traveling expenses.

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The Tribunal has not awarded any compensation under the head of 'loss of amenities in life'. Evidently, the

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petitioner has to suffer the defect in the skull bone for the rest of his life. Hence, a sum of Rs.50,000/- is awarded to him under this head.

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Thus, the petitioner is entitled for a total

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compensation of Rs.11,30,000/- as below:

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Towards Pain and suffering Rs.	1,00,000/-
Towards loss of future income due to disability Rs.	4,50,000/-
Towards loss of income during laid up period Rs.	30,000/-
Towards medical expenses Rs.	3,70,000/-
Towards future medical expenses Rs.	50,000/-
Towards attendant charges, food and nourishment Rs.	40,000/-
Towards traveling expenses and future etc. Rs.	40,000/-
Loss of amenities in life Rs.	50,000/-
Total Rs.1	1,30,000/-
Less: awarded by the Tribunal Rs.	8,45,000/-
Enhancement Rs.	2,85,000/-

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Thus, the petitioner is entitled for a enhanced

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compensation of Rs.2,85,000/- 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 by the

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Tribunal is modified by awarding enhanced compensation of

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Rs.2,85,000/- 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.2-Insurance company is directed to deposit the compensation amount within four weeks from today.

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(iv) Rest of the order of the Tribunal remains unaltered.

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Sd/JUDGE

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tsn* List No.: 1 Sl No.: 86

Mr. v. Nagaraj v Mr. Dinesh Koushik

Case brief

What is this about?

What did the court decide?

Mr. v. Nagaraj v Mr. Dinesh Koushik

Case brief

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What did the court decide?

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