Partly allowed

Sridhar G L v. Prakash Kajjuragi

Karnataka HC6 Jul 2023MFA/7964/2017

Case brief

AI extract

What is this about?

In MFA No.7964/2017, the High Court of Karnataka allowed an appeal partly against a Motor Accident claim award. The court enhanced compensation for pain and suffering and attendant/conveyance charges due to the appellant's profession and injury severity, despite disputes regarding notional income evidence.

What did the court decide?

Appeal allowed in part; appellant entitled to additional Rs.59,000 plus 6% annual interest from filing date.

Sridhar G L Vs Prakash Kajjuragi — Consumer Protection | Karnataka HC (2023)

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NC: 2023:KHC:23419 MFA No. 7964 of 2017

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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 MISCELLANEOUS FIRST APPEAL NO. 7964 OF 2017 (MV-I)

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BETWEEN:

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SRIDHAR G. L., S/O LATE LAKSHMIPATHI, NOW AGED ABOUT 35 YEARS, R/AT NO. V.V. BADAVANE, HOSAKOTE TOWN, HOSAKOTE, BENGALURU RURAL DISTRICT.

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…APPELLANT

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(BY SRI. RANGEGOWDA N.R., 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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PRAKASH KAJJURAGI, S/O SIDDAPPA, HIKKANAGUTTI VILLAGE, SINDHAGI TALUK, BIJAPURA DISTRICT - 586 202.

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IFFCO TOKIA GENERAL INSURANCE CO. LTD., SUDEVPLAZA, 3RD FLOOR, DAJIBANPETH, HUBLI - 580 029.

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…RESPONDENTS

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(BY SRI. E.I. SANMATHI, ADVOCATE FOR R2; VIDE ORDER DATED 06/07/2018; NOTICE TO R1 IS DISPENSED WITH)

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2 - NC: 2023:KHC:23419 MFA No. 7964 of 2017

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 28.07.2017 PASSED IN MVC NO.6807/2016 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT, BENGALURU, (SCCH-18), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal is directed against the judgment and award in MVC No.6807/2016 dated 28.07.2017 passed by learned III Additional Senior Civil Judge, Member, MACT, (SCCH-18), Bengaluru, where by the Tribunal has awarded a sum of Rs.4,17,000/- as compensation.

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The petitioner contended that on 02.01.2016 at about 1:40 p.m., while he was travelling in Maruthi Swift Car from Goa to Bengaluru near Kyadegere on National Highway No.4, the driver of the lorry bearing No.KA-28-B-7705 drove the same in a rash and negligent manner and suddenly took the vehicle to right side and hit to the car. As a result, the petitioner and other inmates of the car sustained injuries and the petitioner was shifted to Government Hospital Chitradurga

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3 - NC: 2023:KHC:23419 MFA No. 7964 of 2017

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and thereafter he was shifted to Manipal hospital Bengaluru. Then he was shifted to M.V.J.Hospital, Hosakote. It was contended that the petitioner was aged about 34 years and was working as a photographer and earning Rs.25,000/- per month and due to the accidental injuries there is permanent disability which affects his income. Therefore he claimed compensation from respondent Nos.1 and 2 who are owner and insurer of the lorry.

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On being issued with the notice, the respondent No.2 appeared through its counsel and the respondent No.1 did not appear and, as such, he was placed ex parte.

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The respondent No.2 in its objections contended that the accident occurred due to the rash and negligent driving of the car driver and there was no such negligence by the lorry driver. It contended that the compensation claimed is highly exorbitant, imaginary and untenable in law and therefore, the petition be dismissed. It also contended that there was violation of the conditions of policy by the owner of the lorry.

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NC: 2023:KHC:23419 MFA No. 7964 of 2017

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On the basis of above pleadings, the Tribunal

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framed appropriate issues and the petitioner was examined as PW-1 and Ex-P1 to Ex-P14 were marked. The doctor who

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assessed the disability of the petitioner was examined as PW2. No evidence was led on behalf of the respondents.

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After hearing the arguments by both the sides, the Tribunal awarded a compensation of Rs.4,17,000/- under the following heads.

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Compensation heads	Compensation Amount (Rs.)
1. Towards Pain and suffering	30,000/-
2. Towards Loss of amenities	30,000/-
3. Towards Nourishment, conveyance and attendant charges	35,000/-
4. Towards Medical expenses	79,000/-
5. Towards Loss of future income	1,73,000/-
6. Towards Loss of income during laid up period & rest period	40,000/-
7. Towards future medical expenses	30,000/-
Total	4,17,000/-

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5 - NC: 2023:KHC:23419 MFA No. 7964 of 2017

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Being aggrieved by the said judgment and award,

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the petitioner is before this court in appeal.

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On issuance of notice, the respondent No.2 has appeared through its counsel and the notice to the respondent No.1 was dispensed with. The Tribunal records have been secured.

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Learned counsel appearing for the appellant contended that the compensation awarded by the Tribunal under the head of pain and suffering, loss of future income on account of the disability, the attendant charges are on the lower side and there is need for enhancement of the compensation under these heads.

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The learned counsel appearing for the respondent No.2 submitted that the compensation awarded by the Tribunal is adequate and proper and there is no need for any enhancement.

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6 - NC: 2023:KHC:23419 MFA No. 7964 of 2017

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The petitioner contend that he was a photographer and due to the accidental injuries he has suffered disability. In order to establish that he was a Photographer, he has produced Ex-P9 and Ex-P10 which show that he was running a Photo Studio and he was registered with district Photo Studio Owner Association. Therefore, there cannot be any doubt about the profession of the petitioner.

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So far as the income of the petitioner is concerned, though the petitioner did contend that he was having income of 25,000/- per month, no acceptable evidence is placed on record. Therefore Tribunal has taken the notional income of the petitioner at Rs.10,000/- considering the fact that he was a Photographer. From the available records there is no reason to disbelieve that the income adopted by the Tribunal at Rs.10,000/- per month is either low or excessive. Evidently, the income considered by the tribunal is slightly on the higher side of notional income applicable for any unskilled labourer.

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The evidence on record also show that he had suffered closed comminuted fracture of left femur shaft and had

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underwent surgery. The evidence of the PW-2 discloses that there is a disability of 27% of the left lower limb and it amounts to 9% of the whole body. The Tribunal has accepted the disability and has calculated the compensation.

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The learned counsel appearing for the appellant submit that the petitioner was a Photographer which involved a lot of moving to different places to cover the events. Therefore, he contends that the functional disability should have been taken at a higher value. Considering the nature of the injuries suffered by the petitioner and the disability stated by PW-2 it can be said that the disability to the left lower limb definitely affects the functionality of the appellant as a Photographer. Therefore, the same is taken at 10%.

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Ex-P7 and Ex-14, the discharge summary's show

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that he was inpatient for a total period of 39 days on 2 spells. The Tribunal has awarded a sum of Rs.35,000/- under the head attendant nourishment and conveyance charges. Evidently, it could cover the compensation under the head of attendant charges and conveyance. It could not have covered all the 3

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NC: 2023:KHC:23419 MFA No. 7964 of 2017

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conventional heads and therefore, there is need for enhancement. Therefore, in the considered opinion of this Court, it would be proper to award a sum of Rs.50,000/- in addition to Rs.35,000/- awarded by the Tribunal.

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In view of the above, the loss of income due to the disability is calculated as Rs.10,000 x 12 x 16 x 10% = Rs.1,92,000/-. So far as compensation under the head of Pain and suffering is concerned, Tribunal has awarded a sum of Rs.30,000 under this head. Considering the nature of the injury that there is fracture of the shaft of the femur and also the fact that he was inpatient for 39 days, it appears that the compensation of Rs.30,000/- under the head of pain and suffering is on the lower side and therefore, the total compensation under the head of pain and suffering is enhanced to Rs.55,000/-. The compensation awarded by the Tribunal under the remaining heads is proper and there is no need to enhance the same. Hence the petitioner is entitled for total compensation of Rs.4,76,000/- under the following heads:

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NC: 2023:KHC:23419 MFA No. 7964 of 2017

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Compensation
Compensation heads Amount (Rs.)
1. Towards Pain and suffering 55,000/-
2. Towards Loss of amenities 30,000/-
3. Towards Nourishment,
conveyance and attendant 50,000/-
charges
4. Towards Medical expenses 79,000/-
5. Towards Loss of future
1,92,000/-
income
6. Towards Loss of income
40,000/-
during laid up period & rest
period
7. Towards future medical
30,000/-
expenses
Total 4,76,000/-
4,17,000/-
Less: Awarded by Tribunal
Enhancement 59,000/-

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For the above reasons, the appeal deserves to be

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allowed in part. Hence, the following :

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order

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i. Appeal is allowed in Part.

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ii. The appellant is entitled for additional sum of Rs.59,000/- along with interest at the rate of

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10 - NC: 2023:KHC:23419 MFA No. 7964 of 2017

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6% per annum from date of petition till realisation . Impugned Judgment and award is modified accordingly.

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iii. Rest of the conditions imposed by the Tribunal remain unaltered.

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Sd/JUDGE

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SNN List No.: 1 Sl No.: 95 CT: ABS

Sridhar G L v. Prakash Kajjuragi

Case brief

What is this about?

What did the court decide?

Sridhar G L v. Prakash Kajjuragi

Case brief

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