Partly allowed

Dr L Vijayaraj v. Mr Rajanna

Karnataka HC7 Jun 2023MFA/9027/2013

Case brief

AI extract

What is this about?

The court modified compensation awards in five appeals arising from a common motor accident claim, reducing or recalculating quantum for loss of estate, loss of future earnings, and medical expenses based on notional income and applicable multiplier.

What did the court decide?

Compensation modified: Rs.4,72,000 for MVC 47/2006, Rs.1,69,400 for MVC 48/2006, and Rs.16,80,000 for MVC 49/2006 with interest at 6% p.a. from petition date till realization.

Dr L Vijayaraj Vs Mr Rajanna — Motor Accident Claims | Karnataka HC (2023)

¶1

1 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF JUNE, 2023

¶3

PRESENT

¶4

THE HON'BLE MRS JUSTICE K.S.MUDAGAL

¶5

AND

¶6

THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO.9027/2013 (MV-I)

¶7

C/W

¶8

MISCELLANEOUS FIRST APPEAL NO.1704/2012 (MV) MISCELLANEOUS FIRST APPEAL NO.1705/2012 (MV-I) MISCELLANEOUS FIRST APPEAL NO.9028/2013 (MV-I) MISCELLANEOUS FIRST APPEAL NO.9032/2013 (MV-D)

¶9

IN M.F.A.NO.9027/2013

¶10

BETWEEN:

¶11

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

¶12

DR.L. VIJAYARAJ S/O N LAKKAIGOWDA, AGED ABOUT 71 YEARS, R/AT NO.43, BOBBLI PALACE ROAD COONUR, OOTY,

¶13

REPRESENTED BY POWER OF ATTORNEY HOLDER SRI. K.R. KESHAVA MURTHY S/O RAME GOWDA, GENERAL HOSPITAL ROAD, ASHOKANAGARA, MANDYA - 571 401 …APPELLANT

¶14

(BY SMT. SUNITHA B.H., ADV. FOR SMT. BHUSHANI KUMAR., ADV.)

¶15

AND:

¶16

MR. RAJANNA NO 3-1, III MAIN, A - CROSS, BYATARAYANAPURA BANGALORE - 560 092.

¶17

¶18

NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶19

THE DIVISIONAL MANAGER

¶20

THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, MUSLIM HOSTEL COMPLEX, OPP. FIRE BRIGADE, SARASWATHIPURAM

¶21

MYSORE - 570 009 … RESPONDENTS

¶22

(BY SRI.S. SRISHAILA, ADV. FOR R2;

¶23

NOTICE TO R1 DISPENSED WITH V/C/O DTD:27.06.2014)

¶24

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.10.2011 PASSED IN MVC NO.49/2006 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE(SR.DN), CJM, MACT, MANDYA, AND TO MODIFY THE AWARD BY ALLOWING THE CLAIM PETITION, IN THE INTEREST OF JUSTICE.

¶25

IN M.F.A.NO.1704/2012

¶26

BETWEEN:

¶27

THE ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, MUSLIM HOSTEL COMPLEX, OPP. FIRE BRIGADE, SARASWATHIPURAM, MYSORE, REP. BY ITS ADMINISTRATIVE OFFICER, R.O AT NO.44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE-560025

¶28

…APPELLANT

¶29

(BY SRI.S. SRISHAILA, ADV.)

¶30

AND:

¶31

DR. L. VIJAYARAJ S/O N LAKKAIGOWDA AGED ABOUT 70 YEARS, NO.43, BOBBLI PALACE ROAD,COONUR, OOTY, R/BY GPA HOLDER SRI.K.R.KESHAVAMURTHY S/O RAMEGOWDA, GENERAL HOSPITAL ROAD ASHOKANAGARA, MANDYA.

¶32

3 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶33

MR RAJANNA

¶34

MAJOR, NO.3-1, III MAIN, A CROSS, BYATARAYANAPURA, BANGALORE … RESPONDENTS

¶35

(BY SMT. SUNITHA B.H., ADV. FOR SMT. BHUSHANI KUMAR, ADV. FOR R1; NOTICE TO R2 IS DISPENSED WITH V/C/O DTD: 07.02.2014)

¶36

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.10.2011 PASSED IN MVC NO.48/2006 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE(SR.DN) AND CJM, AND MACT, MANDYA, AWARDING A COMPENSATION OF Rs.4,26,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

¶37

IN M.F.A. NO.1705/2012

¶38

BETWEEN:

¶39

THE ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, MUSLIM HOSTEL COMPLEX, OPP. FIRE BRIGADE, SARASWATHIPURAM, MYSORE, REPTD. BY ITS ADMINISTRATIVE OFFICER, R.O. AT NO. 44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE - 560 025.

¶40

…APPELLANT

¶41

(BY SRI.S. SRISHAILA., ADV.)

¶42

AND:

¶43

DR L VIJAYARAJ S/O N LAKKAIGOWDA AGED ABOUT 70 YEARS, NO. 43, BOBBLI PALACE ROAD, COONUR, OOTY, R/P BY GENERAL POWER OF ATTORNEY HOLDER SRI. K R KESHAVAMURTHY, S/O RAMEGOWDA, GENERAL HOSPITAL ROAD, ASHOKANAGARA, MANDYA

¶44

MR. RAJANNA MAJOR, NO. 3 -1, III MAIN, A - CROSS, BYATARAYANAPURA, BANGALORE … RESPONDENTS

¶45

(BY SMT. SUNITHA B.H., ADV. FOR SMT. BHUSHANI KUMAR, ADV. FOR R1; NOTICE TO R2 IS DISPENSED WITH V/C/O DTD:18.02.2014)

¶46

¶47

NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶48

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED14.10.2011 PASSED IN MVC NO.49/2006 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE(SR.DN) AND CJM, MACT, MANDYA, AWARDING A COMPENSATION OF Rs.26,01,813/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

¶49

IN M.F.A. NO. 9028/2013

¶50

BETWEEN:

¶51

N KRISHNAMURTHY S/O N M NANJAN, AGED ABOUT 55 YEARS R/AT NO.260/B/5, SEKAR BUILDINGS, KUMAR LODGE LANE OOTY, THE NILGIRIS - 643 001.

¶52

REPRESENTED BY POWER OF ATTORNEY HOLDER, K.R KESHAVAMURTHY S/O RAME GOWDA, GENERAL HOSPITAL ROAD, ASHOKNAGAR, MANDYA …APPELLANT

¶53

(BY SMT. SUN ITHA B.H., ADV. FOR SMT. BHUSHANI KUMAR, ADV.)

¶54

AND:

¶55

MR RAJANNA NO 3-1, III MAIN, A - CROSS, BYATARAYANAPURA BANGALORE - 560 092.

¶56

THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD, DIVISIONAL OFFICE, MUSLIM HOSTEL COMPLEX, OPP: FIRE BRIGADE, SARASWATHIPURAM,

¶57

MYSORE - 570 009 … RESPONDENTS

¶58

(BY SRI.S. SRISHAILA, ADV. FOR R2; NOTICE TO R1 IS HELD SUFFICIENT V/C/O DTD:03.02.2023)

¶59

¶60

NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶61

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.10.2011 PASSED IN MVC NO.47/2006 ON THE FILE OF THE ADDL.CIVIL JUDGE (SR.DN.) & CJM, MACT, MANDYA, AND TO MODIFY THE AWARD ALLOWING THE CLAIM PETITION, IN THE INTEREST OF JUSTICE.

¶62

IN M.F.A. NO.9032/2013

¶63

BETWEEN:

¶64

DR. L. VIJAYARAJ S/O N LAKKAIGOWDA, AGED ABOUT 71 YEARS, R/T NO 43, BOBBLI PALACE ROAD, COONUR, OOTY - 643 001.

¶65

REPRESENTED BY POWER OF ATTORNEY HOLDER SRI. K. R. KESHAVA MURTHY, S/O RAME GOWDA, GENERAL HOSPITAL ROAD, ASHOKANAGARA, MANDYA. …APPELLANT

¶66

(BY SMT. SUNITHA B.H., ADV. FOR SMT. BHUSHANI KUMAR, ADV.)

¶67

AND:

¶68

MR. RAJANNA NO 3-1, III MAIN, A - CROSS BYATARAYANAPURA, BANGALORE - 560 092.

¶69

THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, MUSLIM HOSTEL COMPLEX, OPP: FIRE BRIGADE, SARASWATHIPURAM,

¶70

MYSORE - 570 009 … RESPONDENTS

¶71

(BY SRI.S. SRISHAILA, ADV. FOR R2)

¶72

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.10.2011 PASSED IN MVC NO.48/2006 ON THE FILE OF THE ADDITIONAL CIVIL

¶73

¶74

NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶75

JUDGE(SR.DN), CJM, MACT, MANDYA, AND TO MODIFY THE AWARD BY ALLOWING THE CLAIM PETITION, IN THE INTEREST OF JUSTICE.

¶76

THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:

¶77

JUDGMENT

¶78

These appeals arise out of the common award dated 14.10.2011 in MVC Case Nos. 47, 48 and 49/2006 on the file of Addl. Civil Judge (Sr.Dn.) and CJM, Mandya. Hence, they are taken up together for disposal by this common judgment.

¶79

For the purpose of convenience, parties will be referred to henceforth according to their ranks before the Tribunal.

¶80

The brief facts of the case are as follows:

¶81

On 18.10.2005 at 1.15 p.m. when N.Krishnamurthy the

¶82

claimant in MVC 47/2006, Dr.L.Vijayraj the claimant in MVC 49/2006 and his wife Smt.Santhamma were travelling in Car bearing Regn.No.TN.23/L-3034 from Bengaluru to Ooty near Shimsha Bridge, Mysuru-Bengaluru road within the limits of Maddur Police Station, lorry bearing No.KA-05/AB 3757 hit the said car. In the accident, the claimants and Santhamma suffered injuries and Santhamma later died when she was being shifted

¶83

7 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶84

to the Hospital. At the relevant time, respondent No.1 was the registered owner and respondent No.2 was the Insurer of Lorry No.KA-05/AB-3757.

¶85

Regarding the accident, on the complaint of P.Shivanna S/o.Puttaiah, Maddur Police registered FIR in Crime No.262 of 2005 against the driver of the lorry bearing No.KA05/AB-3757. After investigation, the Police filed charge sheet against the driver of the lorry for the offences punishable under Section 279, 337, 338, 304(A) of IPC.

¶86

The claimants filed MVC Nos.47 and 49/2006 claiming compensation for the personal injuries suffered by them. MVC 48/2006 was filed by Sri L.Vijayaraj claiming compensation for the death of his wife Santhamma.

¶87

The claimants contended that accident occurred due to actionable negligence on the part of the driver of the lorry. Claimants in MVC Nos.47 and 49/2006 contended that due to injuries suffered in the accident, they have suffered permanent physical disability and loss of earning capacity. So far as MVC 48/2006, claimant contended that due to the death of his wife, he has suffered financial loss as well as loss of consortium etc.

¶88

8 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶89

Respondent No.1 did not contest and respondent No.2 alone contested the matter denying the actionable negligence on the part of the driver of the lorry, age, occupation and income of the injured as well as the deceased. Respondent No.2 further denied the injuries and permanent physical disability alleged to have been suffered by the injured and its liability to pay compensation.

¶90

In all the claim petitions, the evidence of claimants was recorded on commission. The respondents did not lead any evidence. Sri K.R.Keshavamurthy, an Advocate was examined as power of attorney holder of the claimants in all the cases as PWs.1 to 3. In MVC 47/2006 on commission, the claimant and two other witnesses were examined. Similarly, in MVC 48/2006, one V.A.Ramasubramanian, Chartered Accountant was examined on behalf of the claimant and in MVC 49/2006 on commission, four witnesses were examined. On behalf of claimants Ex.P1 to P19 and C1 to C3 were marked and on behalf of respondent No.2, the Insurance Policy was marked as Ex.R1.

¶91

The Tribunal, on hearing the parties, by the impugned common award, held that accident occurred òn

¶92

9 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶93

account of actionable negligence on the part of the driver of the

¶94

lorry. The Tribunal awarded compensation in the said claim petitions as follows:

¶95

The said amount was held to be payable by respondent-2

¶96

Insurer with interest at the rate of 9% p.a.

¶97

The claimants and the Insurer both have challenged

¶98

the awards in the above said appeals as per the Table below:

¶99

MVC No.	MFA No.	Claimants/ Insurance Co.
MVC No. 49/2006	MFA No.9027/2013	Claimant-L.Vijayaraj rep. by GPA Holder K.R.Keshavamurthy
MVC No.49/2006	MFA NO.1705/2012	Insurer- M/s. Oriental Insurance Co.
MVC No.48/2006	MFA No.1704/2012	Insurer-M/s.Oriental Insurance Co.
MVC No.48/2006	MFA No.9032/2013	Dr.L.Vijayaraj, for death of his wife Santhamma
MVC No.47/2006	MFA No.9028/2013	N.Krishnamurthy (for personal injuries)

¶100

10 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶101

Heard both side.

¶102

Smt.Sunitha B.H, learned counsel representing

¶103

claimants submits that, income of the claimants considered by the Tribunal is on the lower side. She further submits, the disability of the injured considered by the Tribunal and the compensation awarded on the head of Loss of future income', 'loss of income during the laid up period', Medical Expenses' is on the lower side.

¶104

Per contra, Sri Shrishaila, learned counsel representing the Insurer submits that in MVC No.48 and 49/2006, the claimant was not brought before the court and no acceptable reasons were shown for examining the power of attorney holder. Had he come before the Court, the alleged disability of 80% suffered by the claimant Dr.L.Vijay Raj could have been exposed. The documents produced regarding income of the injured and the deceased are wholly unreliable. The examination-in-chief and the cross-examination of witnesses show that, there were self contradictions with regard to income of the injured and the deceased. In MVC 49/2006, the Doctor who treated the injured was not examined. No reason was assigned for non-examination. Therefore, the Tribunal erred in

¶105

11 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶106

considering disability of the claimant in MVC 49/2006 at 30%.

¶107

The documents produced regarding medical expenses, attendant charges were all doubtful documents.

¶108

Considering the submissions of both side and material on record, the question that arises for consideration is, whether the compensation awarded by the Tribunal in MVC Nos.48/2006, 47/2006 and 49/2006 is just one?

¶109

Analysis

¶110

Reg. MVC Nos.48/2006 and 49/2006 in MFA Nos. 9027/2013 & 9032/2013:

¶111

There is no dispute regarding occurrence of the accident due to the actionable negligence on the part of the driver of the lorry. The charge sheet was also filed against him. Therefore, that finding needs to be maintained.

¶112

Reg. MVC No.48/2006 in MFA Nos.1704/2012 & 9032/2013:

¶113

The relationship of claimant with deceased Santhamma is not disputed. The PM report shows that she was aged 55 years. During the course of the evidence, attempt was made by PW.2 to contend that Santhamma was doing medical shop business and earning income by way of house rent and her

¶114

12 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶115

annual income was Rs.5,29,465/- In the claim petition, the claimant himself pleaded that deceased was a home maker and earning Rs.8,000/- per month. That was the admission in pleading and that binds the claimant.

¶116

Moreover, PW.2 in his deposition did not say what was the occupation of Santhamma. That was introduced by witness V.A.Ramasubramanian who produced Ex.C1 copy of IT return. Even that document was for the assessment year 20062007 i.e. subsequent to the accident. That was submitted on 20.11.2006. Whereas, the petition was filed on 20.07.2006. Therefore, the Tribunal was justified in rejecting the evidence of claimant that the deceased had income of more than Rs.5,29,465/-.

¶117

Since there was no acceptable evidence regarding occupation of the deceased, the Tribunal was justified in holding that she was a home maker and applied the notional income. The accident occurred in the year 2005. Therefore, the Tribunal was justified in assessing her income at Rs.3,000/- per month.

¶118

The Tribunal did not deduct any amount towards personal expenses of the deceased and applied multiplier `11'

¶119

13 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶120

and in all awarded compensation of Rs.4,26,000/- on different

¶121

heads as per the Table below:

¶122

1. Loss of Dependency (Rs.3000 x12 x11)	Rs. 3,96,000-00
2. Loss of Estate	Rs. 10,000-00
3. Loss of Consortium	Rs. 10,000-00
4. Funeral Expenses & Obsequies ceremonies	Rs. 10,000-00
TOTAL	Rs. 4,26,000-00

¶123

The question of awarding compensation on the head

¶124

of loss of dependency arises only if the claimant was dependent on the deceased. The co-ordinate bench of this Court in A.Manavalagan vs A.Krishnamurthy and Others¹ held that in a case where both husband and wife were employed, husband was not dependent upon the income of the deceased, in such cases, compensation under the head loss of dependency' cannot be awarded. What is to be awarded is, loss of estate'. In para.23 of the said judgment, it was held that in such cases, 75% of the notional income of the deceased has to be deducted towards personal expenses, 25% of the income has to be awarded under the head of `loss of estate'. The Tribunal failed to consider the aforesaid legal proportion while awarding Rs.3,96,000/- on the

¶125

1 ILR 2004 KAR 3268

¶126

14 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶127

head of 'loss of dependency' without deducting anything for the personal expenses of the deceased.

¶128

In the light of the aforesaid judgment, out of Rs.3,000/- only 25% has to be awarded to the claimant by way of loss of estate. The deceased was aged 55 years. As per the judgment of Hon'ble Supreme Court in National Insurance Company Ltd vs. Pranay Sethi² , to the income of the deceased 10% has to be super added by way of loss of future prospects which comes to Rs.3300/- (3000+10% of 3000). After deducting 75% towards personal expenses of the deceased, remaining 25% comes to Rs.825/-, The applicable multiplier would be 11'. Therefore, the compensation payable on the head of loss of estate' would be Rs.1,08,900/- (825 x 12 x 11).

¶129

As per judgment in Pranay Sethi 's case the

¶130

claimant is entitled to Rs.40,000/- by way of consortium with escalation of 10%. The claimant is entitled to Rs.15,000/- on the head of funeral expenses with escalation of 10%. Therefore the just compensation payable to the claimant would as follows:

¶131

2 AIR 2017 SC 5157

¶132

15 -

¶133

NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶134

Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of Estate	Rs. 1,08,900-00
2	Loss of Consortium	Rs. 44,000-00
3	Transportation of dead body/funeral expenses	Rs. 16,500-00
	TOTAL	Rs.1,69,400-00

¶135

The impugned order in MVC 48/2006 requires to be modified. Accordingly, MFA No.1704/2012 and MFA No.9032/2013 deserve to be allowed in part.

¶136

Reg. MFA No.9028/2013 (MVC No.47/2006)

¶137

In this case, to prove the injury suffered by him and his permanent physical disability, the claimant examined Dr.Saji M.J., Orthopaedic Surgeon of St.John's Hospital. The said doctor deposed that he examined and treated the claimant and issued the wound certificate as per Ex.P4. As per the evidence of the said witness and the wound certificate, the claimant had suffered the following injuries:

¶138

(1) Comminuted fracture of Right femur

¶139

(2) Type-I Acroma clavicular joint injury (R)

¶140

(3) Undisplaced fracture of Neck Scapula (R)

¶141

(4) Fracture of II rib on Right side.

¶142

16 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶143

He deposed that victim had suffered 35% permanent

¶144

physical disability to the right lower limb. He did not speak about the percentage of disability with reference to the whole body. Considering the same, the Tribunal rightly assessed disability to the whole body at 1/3rd which comes to 12%. Though the claimant claimed that he was earning Rs.5,44,355/p.a. from his business and Rs.1,20,000/- from agriculture, he did not produce any document to show that he owned any lands or he was cultivating them. In the absence of any documents in proof agriculture or business of the claimant, the Tribunal assessed his income notionally at Rs.5,000/- per month. As per the claim petition, claimant was resident of Ooty. He was treated in St.John's Hospital from 18.10.2005 to 3.11.2005. The Tribunal awarded Rs.4,43,600/- on different heads as per the

¶145

Table below :

¶146

Sl. No.	Head	Amount in Rs.
1.	Loss of earnings due to disability (5000x12x16=7,80,000 12% of 7,80,000)	93,600/-
2.	Loss of earnings during laid up period	50,000/-
3.	Medical Expenses	2,00,000/-
4.	Attendant charges & pain and suffering	1,00,000/-
	TOTAL	4,43,600/-

¶147

17 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶148

Since the accident took place in the year 2005, the

¶149

trial Court rightly considered his notional income at Rs.5,000/per month as nothing was produced to prove that he was earning more than Rs.5,000/- per month. There is no dispute that victim was 49 years old. As per the judgment in Pranay Sethi 's case, he is entitled to addition of 25% by way of future prospects. Hence 25% of Rs.5,000/- comes to Rs.1,250/-. The total income works out to Rs.6,250/-. 12% of 6,250/- would be Rs.750/-. The applicable multiplier is `13'. Therefore, loss of future earnings comes to Rs.1,17,000/- (750 x 12 x 13).

¶150

The claimant had suffered in all four fractures. Out of them, fracture of femur and clavicular joint are fractures relating to weight bearing bones. Therefore, the compensation awarded on the head of pain and suffering is just one and does not warrant interference. The compensation awarded on the head of medical expenses was based on evidence. It does not call for interference of this Court. Considering the period of hospitalization for 15 days and the nature of injuries, the Tribunal rightly considered the loss of earning during the laid up period for three months. At that rate, loss of income during the

¶151

18 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶152

laid up period is Rs.5,000 x 3 = 15,000/-. Therefore, there is no

¶153

reason to modify the award on that head. The claimant was hospitalized only for a period of 15 days and awarding compensation of Rs.15,000/- on the head of attendant charges, food and nourishment meets the ends of justice. The claimant was not able to do his routines at least for three months. Therefore, awarding of Rs.25,000/- under loss of amenities will be just. Therefore, the just compensation payable to the claimant would be as under:

¶154

Sl.No.	Head	Amount
1.	Loss of future earnings	Rs.1,17,000/-
2.	Loss of earnings during laid up period	Rs. 15,000/-
3.	Medical Expenses	Rs. 2,00,000/-
4.	pain and suffering	Rs.1,00,000/-
5.	Food, nourishment attendant and transportation	Rs. 15,000/-
6.	Loss of amenities	Rs. 25,000/-
	TOTAL	Rs.4,72,000/-

¶155

19 -

¶156

NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶157

The award needs to be modified accordingly. MFA No.9028/2013

¶158

deserves to be allowed in part.

¶159

Reg. MFA No. 9027/2013 & MFA No.1705/2012

¶160

(MVC No.49/2006)

¶161

In this case, at the time of accident, the claimant

¶162

was aged 64 years and doctor by profession. In both the claim petitions, he contended that he was earning Rs.25,000/- per month. His power of attorney holder in his deposition states that he was earning Rs.35,000/- per month, whereas, his witnessthe Chartered Accountant Sri V.A.Ramasubramanian states that the income of the claimant was Rs.7,62,768/- as per Ex.C4 the income tax returns allegedly submitted by the claimant for the year 2006-2007.

¶163

In this case the Tribunal relying on Ex.C4 considered his income at Rs.7,62,768/-, for his age of 64 years applied 7 multiplier and assessed the income at Rs.53,39,376/-. Considering his disability at 30% awarded compensation of Rs.16,01,813/- on the head of loss of future earnings. The Tribunal in all awarded compensation of Rs.26,01,813/- on different heads as per the table below:

¶164

20 -

¶165

NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶166

Sl. No.	Particulars		Compensation awarded in Rs.
1.	Permanent disability		16,01,813/-
2.	Food nutrition attendant charges	and	1,00,000/-
3.	Medical expenses		7,00,000/-
4.	Pain and suffering		2,00,000/-
	Total		26,01,813/-

¶167

The claimant admittedly was aged 64 years at the

¶168

time of accident. As per his claim petition his monthly income was Rs.25,000/- per month. In the deposition of PW.3 the power of attorney holder of claimant does not state what exactly was the income of the claimant. The claimant had taken treatment in Bengaluru and his daughter is said to be the resident of Bengaluru. Still he appointed PW.3 an advocate as the power of attorney holder. He is the power of attorney holder and claimants' witness in all the three cases. That shows the questionable intervention of a professional in these cases. Only for the first time in the evidence of V.A.Ramasubramanian the Chartered Accountant CW.2, he introduces Ex.C4 the copy of saral form/ITS-2D to claim that the income of the claimant was Rs.7,62,768/-. His income tax returns immediately preceding 2006-07 were not produced to show that he had such income

¶169

21 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶170

even before the accident. Ex.C4 is not even the original document. That was purportedly submitted to the Income Tax Department on 10.11.2006 that is after filing of the claim petition. The Tribunal without considering all the aforesaid circumstances more particularly the admission of the claimant himself in the claim petition that his income was Rs.25,000/- per month accepted Ex.C4 which is unsustainable.

¶171

Since the fact of victim being a doctor is not disputed and he was aged 64 years, it can be inferred that by that time he had sufficient experience and settled in his profession. Therefore, it would be reasonable to accept his income of Rs.25,000/- per month as stated in the claim petition. So far as his disability as already stated the claimant does not come before the Tribunal. As per his power of attorney holder as well as Dr.Nandakumar/CW.1 the claimant was treated in Manipal Hospital, Bengaluru and Ganga Medical Centre and Hospital Pvt. Ltd, Coimbatore (‘Ganga Hospital’ for short). The doctors who treated him in Manipal and Ganga Hospital were not examined.

¶172

CW.1 is not the doctor who treated the claimant in those hospitals. The claimant has taken the pain of examining

¶173

22 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶174

CW.1 who is the resident of Ooty which is far off place as compared to Manipal Hospital, Bengaluru from Mandya. CW.1 does not even state in his evidence, what is his specialization and what is his qualification. Therefore, his evidence regarding the injuries of the claimant and his disability cannot be accepted as gospel truth. As per Ex.P10 copy of the wound certificate produced by the claimant himself the claimant had suffered the following injuries:

¶175

i) Fracture of right Acetabulum ii) Fracture of right humerus iii) Fracture of Both bones of right forearm iv) Fracture of 3 to 6 ribs on left side v) Fracture of left ulna vi) Foot drop of right leg vii) Multiple lacerations over face

¶176

Ex.P12 discharge summary issued by Manipal

¶177

Hospital shows that the claimant was treated in the said hospital

¶178

between 18.10.2005 and 11.11.2005 as in-patient. As per the

¶179

said record the final diagnose regarding injuries were as follows:

¶180

i) Fracture of right Acetabulum ii) Fracture of right humerus iii) Fracture of Both bones of right forearm iv) Fracture of 3 to 6 ribs on left side

¶181

23 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶182

v) Fracture of left ulna vi) Foot drop of right leg vii) Newly detected Diabetes Mellitus viii) Recently diagnosed hypertension

¶183

The said document shows that the claimant was the

¶184

patient of Diabetes Mellitus and Hypertension. To correct the fracture suffered by him he underwent multiple surgeries. Therefore, the evidence of the claimant to the extent of he suffering the aforesaid fractures and undergoing treatment in Manipal Hospital can be accepted. But the said document shows that at the time of his discharge from the hospital his condition was satisfactory. A copy of the document purportedly issued by the Ganga Hospital was produced and marked at Ex.C3. But the original of the said document was not produced and the author of the said document was not examined.

¶185

Having regard to the aforesaid facts and

¶186

circumstances the Tribunal was justified in rejecting the evidence of PW.3 that the claimant had suffered 80% permanent physical disability. However, having regard to the nature of injuries mentioned in the records issued by the Manipal Hospital the disability taken by the Tribunal at 30%

¶187

24 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶188

does not warrant any interference. Since the claimant was aged

¶189

64 years the contention that he was entitled to future prospects of his income is not sustainable. This view is supported by the judgment of Pranay Sethi ’s case, 30% of Rs.25,000/- comes to Rs.7,500/-. Therefore, the compensation payable under the head loss of future earnings is Rs.6,30,000/- (7,500 X 12 X 7). It was contended that due to the injuries suffered in the accident claimant had to undergo several surgeries between August 2006 to December 2006. According to PW.3 and CW.1 the claimant was treated in Ganga Hospital, Coimbatore during the following periods:

¶190

i) 12.08.2006 to 03.09.2006 ii) 23.09.2006 to 28.12.2006 iii) 21.11.2006 to 28.12.2006

¶191

As already noticed, the claimant was diabetic. In the absence of examination of the doctors who allegedly treated him in Ganga Hospital Coimbatore, it cannot be said that his subsequent admissions and surgeries were proximately connected to the injuries suffered by him in the accident dated 18.10.2005. Considering the nature of injuries and the period of

¶192

25 - NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶193

his hospitalization, the compensation of Rs.2,00,000/- awarded on the head of pain and suffering is just one.

¶194

To support the medical bills of Ganga Hospital, Coimbatore, no prescriptions and case sheet were produced. Ex.P13 are the medical bills pertaining to Manipal Hospital. The expenses incurred thereunder was Rs.4,14,817/-. That was during his hospitalization between 18.10.2005 and 11.11.2005. The other bills relating to Ganga Hospital were 07.10.2006 that is after one year of the accident and those bills were the duplicate bills. There is nothing to show that whatever ailment he suffered in October 2006 was connected to the injury suffered in the accident in October 2005. Therefore, the Tribunal should have taken his total medical expenses at Rs.5,00,000/-.

¶195

So far as the compensation towards attendant charges and nutrition, first time he was hospitalized for 23 days. He was the resident of Ooty and he was treated at Bengaluru. Considering the same awarding compensation of Rs.1,00,000/on the head of attendant charges, food and nutrition and transportation, meets the ends of justice.

¶196

NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶197

26 -

¶198

Having regard to the nature of injuries suffered by

¶199

the claimant and his disability, it can be considered that he would not have attended to his profession and earn the income for about six months. Therefore, awarding Rs.1,50,000/(25000 X 6) on the head of loss of income during laid up period is just. The Tribunal has not awarded any compensation on the head of loss of amenities. Having regard to the nature of the injuries, it can be said that claimant was not in a position to attend to his routines at least for six months. A sum of Rs.1,00,000/- can be awarded on the head of loss of amenities.

¶200

Therefore, the just compensation payable is as follows:

¶201

Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of future income	6,30,000/-
2.	Pain and suffering	2,00,000/-
3.	Medical expenses	5,00,000/-
4.	Food, attendant charges and transportation	1,00,000/-
5.	Loss of amenities	1,00,000/-
6.	Loss of income during laid up period	1,50,000/-
	Total	16,80,000/-

¶202

The impugned award requires to be modified accordingly. These are not the cases of recovery of money

¶203

NC: 2023:KHC:19649-DB MFA No. 9027/2013 C/W MFA No. 1704/ 2012 MFA No. 1705/2012 MFA No. 9028/2013 MFA No. 9032/2013

¶204

27 -

¶205

based on contractual obligations. Therefore, the Tribunal ought

¶206

to have awarded interest at 6% p.a. For the aforesaid reasons

¶207

the above appeals deserve to be allowed partly. Hence the following:

¶208

ORDER

¶209

i) The appeals are allowed partly. The awards in MVC Nos.47, 48 and 49 of 2006 are modified as follows:

¶210

a) The claimant in MVC Nos.47/2006 is granted compensation of Rs.4,72,000/- with interest thereon at 6% p.a. from the date of petition till realization.

¶211

b) The claimant in MVC No.48/2006 is granted compensation of Rs.1,69,400/- with interest thereon at 6% p.a. from the date of petition till its realization.

¶212

c) The claimant in MVC No.49/2006 is granted compensation of Rs.16,80,000/with interest thereon at 6% p.a. from the date of petition till its realization.

¶213

d) Respondents No.1 and 2 are jointly and severally liable to pay the said compensation.

¶214

e) Respondent No.2/Insurer is liable to deposit the said amount before the Tribunal within four weeks from the date of receipt of the copy of this order.

¶215