Partly allowed

Sri Hanumanthaiah v. M/S Annapoorna Travels

Karnataka HC12 Jun 2023MFA/9000/2018

Case brief

AI extract

What is this about?

The High Court allowed a first appeal seeking enhancement of motor accident compensation. The court upheld the Tribunal's assessment of disability but enhanced certain heads of compensation, specifically loss of income during the laid-up period and loss of amenities, resulting in a total award of Rs. 12,74,100/-.

What did the court decide?

Compensation enhanced from Rs. 12,24,045/- to Rs. 12,74,100/-. Respondents jointly and severally liable; Insurer to deposit amount within four weeks.

Sri Hanumanthaiah Vs M/S Annapoorna Travels — Medical Negligence | Karnataka HC (2023)

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NC: 2023:KHC:20160 MFA No. 9000/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL No.9000/2018 (MV-I)

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BETWEEN:

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SRI HANUMANTHAIAH S/O LATE THIMMEGOWDA AGED ABOUT 57 YEARS R/AT C/O T PUTTASWAMY NO.723/A, 8^TH CROSS 5^TH MAIN, HANUMANTHANAGAR BENGALURU – 560 019

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PERMANENT ADDRESS: NO.42, DANAYKANAPURA VILLAGE KOOTAGAL HOBLI RAMANAGAR TALUK AND DISTRICT …APPELLANT

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(BY SRI N S BHAT, ADVOCATE)

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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AND:

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M/S. ANNAPOORNA TRAVELS NO.26/1, (999) 38^TH CROSS 23^RD MAIN, 4^TH T BLOCK, JAYANAGAR, BENGALURU-560 041

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THE MANAGER

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SBI GENERAL INSURANCE COMPANY LIMITED

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GROUND & FIRST FLOOR RUKMINI TOWERS-3-1 PLATFORM ROAD / RAILWAY APPROACH ROAD, SESHADRIPURAM

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BENGALURU – 560 020 …RESPONDENTS

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(BY SRI SHARANAPPA GOUDA MALIPATIL, ADVOCATE FOR R2; R1 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 23.07.2018 PASSED BY XIX ADDITIONAL SMALL CAUSES JUDGE & MACT, (SCCH-17), BENGALURU IN MVC NO.7105/2016 PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Though the matter is listed for admission, with consent of both side, the same is taken up for final disposal.

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“Whether the compensation awarded to the

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claimant under the impugned award is just”? is the question involved in this case.

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The appellant was the claimant and the respondents were respondent Nos.1 and 2 in M.V.C.No.7105/2016 on the file of XIX Additional Small Causes Judge, MACT, Bangalore. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the Tribunal.

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On 24.04.2016 at 8.20 a.m. when the claimant was riding his motorcycle bearing registration No.KA-42/R9591, near Kanva Bridge, within the limits of Channapatna

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NC: 2023:KHC:20160 MFA No. 9000/2018

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Rural police station, car bearing No.KA-05-AF-4310 hit the claimant and caused the accident. In the accident, the claimant suffered injuries. At the relevant time, respondent Nos.1 and 2 were the registered owner and insurer of the car bearing registration No.KA-05-AF-4310.

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The claimant filed M.V.C.No.7105/2016 against the respondents claiming compensation of Rs.40,00,000/- on the ground that due to the injuries suffered by him in the accident, he has suffered permanent physical disability and thereby lost his future earning capacity. The claimant contended that the accident occurred due to actionable negligence on the part of the driver of the car and respondent Nos.1 and 2 being owner and insurer of the car are liable to pay the compensation.

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Respondent No.1 did not contest the petition. Respondent No.2 alone filed the written statement denying occurrence of the accident due to actionable negligence on the part of the driver of the car, injuries suffered by the claimant, his age, occupation, income and disability to pay the compensation. However, the policy covering the car was not in dispute.

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NC: 2023:KHC:20160 MFA No. 9000/2018

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To substantiate the claim of the claimant, he got himself examined as PW.1 and on his behalf PWs.2 to 4 were examined and Exs.P1 to P26 were marked. On behalf of respondent No.2, its Official was examined as RW.1. No documents were produced on behalf of the respondents.

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The Tribunal on hearing the parties and relying on the evidence of PW.1 and Exs.P1 to P5 the first information report, complaint, spot mahazar, charge sheet and the order sheet in C.C.No.37/2017, held that the accident occurred due to actionable negligence on the part of the driver of the car. The Tribunal after discerning the evidence of PW.3 Dr.Nagaraj, Orthopaedist held that the claimant suffered 15% permanent physical disability to the whole body.

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The Tribunal relying on Ex.P12 the aadhar card of the claimant considered his age at 58 years. The Tribunal considered his notional income at Rs.15,000/- per month, applied 9 multiplier and awarded compensation of Rs.2,43,000/- on the head of loss of future income. The Tribunal in all awarded compensation of Rs.12,24,045/- with interest at 7.5% per annum on different heads as follows:

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NC: 2023:KHC:20160 MFA No. 9000/2018

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Towardspain and Suffering	75,000/-
2.	Towards attendant charges, extra food and conveyance expenses	60,000/-
3.	Towards medical expenses	7,26,045/-
4.	Loss of income during laid up period	60,000/-
5.	Loss of future income due to permanent disability	2,43,000/-
6.	Loss of future amenities and happiness	30,000/-
7.	Towards future medical expenses	30,000/-
	Total	12,24,045/-

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The Tribunal directed respondent No.2/Insurer to reimburse the said amount.

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The respondents have not challenged the award on any grounds. The claimant challenged the inadequacy of compensation awarded.

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Sri N.S.Bhat, learned Counsel for the claimant submits that the claimant had produced Exs.P13 to P15, to show that the claimant had robust income from milk vending business and Ex.P16 to show that he had agricultural income. The Tribunal fell in error in considering his income only at Rs.15,000/- per month. Though PW.3 the doctor deposes that the disability suffered by the claimant was 21.33%, the Tribunal without any justifiable reason reduced the same to

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NC: 2023:KHC:20160 MFA No. 9000/2018

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15%. Similarly, the Tribunal unjustifiably rejected the evidence of PW.4 Neuro surgeon to the effect that the claimant had suffered 20% combined neurological disorder. He submits that the compensation awarded on all other heads is also on the lower side.

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Sri Sharanappa Gouda Malipatil, learned Counsel for respondent No.2 justifies the impugned award contending that PW.3 was not the doctor who treated the claimant and PW.3 himself admits that he assessed disability at prematured stage. Therefore, whatever he has spoken would not become gospel truth. So far as the income of the claimant, he submits that the author of Ex.P13 to P15 was not examined. Thus, they were not proved. The RTC extracts show that the land was not cultivated. Considering the age of the claimant and other evidence on record, the Tribunal has taken the income on the higher side. Since respondents have not preferred appeal, notional income needs to be confirmed. The compensation awarded on other heads is also just one.

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Analysis

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The claimant’s own document Ex.P12 shows that he was aged 58 years. As per the evidence of PWs.3 and 4

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NC: 2023:KHC:20160 MFA No. 9000/2018

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and Exs.P6 to P8, P19 and P20, the claimant had suffered the

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following injuries:

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(i) Diffused axonal injury;

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(ii) Peri tentorial subdural Haematoma with brain injury;

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(iii) left proximal humerus fracture.

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Thus, it is clear that there was one fracture. So

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far as head injury, PW.4 himself deposes that subdural haemorrhage was resolved due to the treatment given. In the documents Exs.P7 and P8 produced by the claimant and Ex.P23 the case sheets produced by PW.3, name of PW.3 does not appear as the doctor who treated the claimant. In his chief examination, he did not mention anything about he treating the claimant. In the cross-examination also, he says that he was one of the member of the doctors’ team. But that is not reflected in Exs.P7, P8 and P23. However, he being Orthopaedist was not disputed. Similarly, his evidence that Exs.P7, P8 and P23 were discharge summaries and case sheet relating to the claimant was not disputed.

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As per the said records, the claimant underwent

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ORIF surgery for left proximal humerus fracture and the head injury. He was treated conservatively. The records further

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NC: 2023:KHC:20160 MFA No. 9000/2018

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show that the claimant was treated as inpatient in Sparsh Hospital, Bangalore from 27.04.2016 to 11.05.2016. The medical evidence further shows that for the second time the claimant was treated as inpatient between 12.05.2016 to 08.06.2016.

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Evidence of PW.3 and the medical records show that since the claimant developed some infection in bone, his implant could not be removed. PW.3 himself states that permanent physical disability has to be assessed after removal of the implant and on seeing the progress of removal of such implant. Therefore, disability at the rate of 21.33% spoken by him was rightly not accepted by the Tribunal. The claimant did not examine the doctor who conducted surgery on him for his humerus fracture.

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So far as PW.4 though he deposes that the claimant had suffered cognitive disability, he himself deposes that subdural haemorrhage was resolved during the course of treatment. He himself admitted in the cross-examination that the claimant was not suffering from any kind of memory loss. He also admitted that at the time of discharge, the claimant’s parameters were normal and weakness in four limbs of the claimant may be due to his old age. PW.4 further admitted

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NC: 2023:KHC:20160 MFA No. 9000/2018

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that by continuous treatment the disability assessed by him comes down. Therefore, the Tribunal rightly considered the disability of the claimant at the rate of 15% to the whole body. That does not warrant any interference.

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Though the claimant contended that he was earning Rs.30,000/ per month by his milk vending and agricultural income, to prove the same, he did not examine the author of Exs.P13 to P15. The claimant contended that he was doing agricultural work and has produced 3 RTC extracts. RTC extracts show that in one of these lands, there is no crop information. Out of two other lands, one is shown to be coconut farm and other is shown to be dry land. The Tribunal on considering all these aspects, assessed his notional income at Rs.15,000/- per month. By no stretch of imagination it can be said that the same is on the lower side.

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The claimant was aged 58 years. The applicable multiplier to the age of the claimant was 9. Therefore, just compensation on the head of loss of future earnings comes to Rs.2,43,000/- (Rs.15,000/- x 15/100 x 12 x 9). The same does not warrant interference of this Court.

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NC: 2023:KHC:20160 MFA No. 9000/2018

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The compensation on the head of medical expenses was awarded based on the evidence adduced and records produced by the claimant. The same also does not warrant interference.

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Having regard to the nature of the injuries and the period of hospitalization, the Tribunal should have held that the claimant was not able to attend to his routine work for a period of six months. Therefore, the compensation payable on that head of loss of income during laid up period needs to be enhanced to Rs.90,000/- (Rs.15,000/- x 6).

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As per the medical evidence, there was one fracture and subdural haemorrhage which was resolved in the course of time. Therefore the compensation awarded on the head of pain and sufferings is just one. Similarly, the compensation awarded on the head of attendant charges, diet and transportation is also reasonable one.

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Having regard to the period of hospitalization and the nature of injuries, the compensation awarded on the head of loss of amenities needs to be enhanced to Rs.50,000/-. As there is no proof of incurring the future medical expenses beyond Rs.30,000/-, the same needs to be

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maintained. Therefore the just compensation payable is as

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follows:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of Future earnings	2,43,000/-
2.	Medical expenses	7,26,045/-
3.	Loss of income during laid up period	90,000/-
4.	Pain and sufferings	75,000/-
5.	Attendant charges, food and transportation expenses	60,000/-
6.	Loss of amenities	50,000/-
7.	Future medical expenses	30,000/-
	Total	12.74,045/- rounded to 12.74,100/-

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The appeal deserves to be allowed in part. Hence

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the following:

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ORDER

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The appeal is partly allowed. The impugned award is modified as follows:

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(i) The claimant is entitled to compensation of Rs.12,74,100/- with interest thereon at 7.5% per annum from the date of the petition till its realization.

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(ii) Respondent Nos.1 and 2 are jointly and severally liable to pay the compensation.

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(iii) Respondent No.2 Insurer shall deposit the same before the Tribunal within four weeks from the date of receipt

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NC: 2023:KHC:20160 MFA No. 9000/2018

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of copy of this order. On such deposit, the Tribunal shall

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release the said amount to the claimant digitally.

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(iv) Registry shall transmit the records to the Tribunal

forthwith.

Sd/JUDGE

Sd/JUDGE

KSR List No.: 1 Sl No.: 29

Sri Hanumanthaiah v. M/S Annapoorna Travels

Case brief

What is this about?

What did the court decide?

Sri Hanumanthaiah v. M/S Annapoorna Travels

Case brief

What is this about?

What did the court decide?

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