Partly allowed

Anthoni D Souza v. P M Narayana

Karnataka HC13 Oct 2023MFA/9071/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of three Miscellaneous First Appeals filed under Section 173(1) of the Motor Vehicles Act. The court dismissed the appeal in one case, enhanced compensation in a case involving grievous injuries, and enhanced compensation in a minor death case by applying the principal of loss of dependency from the Kurvan Ansari precedent. Dispute involved Insurance Company.

What did the court decide?

Enhanced compensation awards granted for two appeals (MFA No. 9535/2012 and 9537/2012); first appeal dismissed. Enhanced amounts to carry interest at 6% p.a. from date of petition.

Anthoni D Souza Vs P M Narayana — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:37653 MFA No. 9071 of 2012 C/W MFA No. 9535 of 2012 MFA No. 9537 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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MISCELLANEOUS FIRST APPEAL NO. 9071 OF 2012

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 9535 OF 2012

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MISCELLANEOUS FIRST APPEAL NO. 9537 OF 2012

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IN MFA NO. 9071/2012

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BETWEEN:

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ANTHONI D'SOUZA, AGED ABOUT 41 YEARS, S/O INTHRU D'SOUZA, R/AT NEAR SANTHEKATE, KALYANPUR, UDUPI TALUK.

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…APPELLANT

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

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(BY SMT. SWATI G. HEGDE, ADVOCATE FOR SRI. PAVANA CHANDRA SHETTY H, ADVOCATE)

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AND:

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P. M. NARAYANA, AGED ABOUT 47 YEARS, S/O LATE SUBBA POOJARY, M/S NISHMITHA MOTORS, NEAR BUS STAND, MAIN ROAD, MOODABIDRI, MANGALORE TALUK.

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THE DIVISIONAL MANAGER, THE NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, UDUPI.

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…RESPONDENTS (BY SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R2; R1 NOTICE DISPENSED WITH VIDE RDER DATED 29.01.2014)

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NC: 2023:KHC:37653 MFA No. 9071 of 2012 C/W MFA No. 9535 of 2012 MFA No. 9537 of 2012

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.07.2011 PASSED IN MVC NO.1404/2008 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 9535/2012

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BETWEEN:

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ANTHONY FERNANDES, AGED ABOUT 43 YEARS, S/O LATE. VALARIAN FERNANDES, REPRESENTED: BY HIS WIFE SMT. CLARA FERNANDES, AGED ABOUT 34 YEARS, W/O ANTHONY FERNANDES, R/AT NEAR SANTHEKATTE, KALYANPUR, UDUPI TALUK

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…APPELLANT

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(BY SMT. SWATI G. HEGDE, ADVOCATE FOR SRI. PAVANA CHANDRA SHETTY. H., ADVOCATE)

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AND:

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P. M. NARAYANA, AGED ABOUT 47 YEARS, S/O LATE SUBBA POOJARY, M/S. NISHMITHA MOTORS, NEAR BUS STAND, MAIN ROAD, MOODABIDRI, MANGALORE TALUK.

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THE DIVISIONAL MANAGER, THE NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, UDUPI.

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…RESPONDENTS (BY SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R2; R1 NOTICE DISPENSED WITH VIDE RDER DATED 19.02.2014)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.07.2011 PASSED IN MVC NO.1402/2008 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL

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NC: 2023:KHC:37653 MFA No. 9071 of 2012 C/W MFA No. 9535 of 2012 MFA No. 9537 of 2012

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JUDGE, MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 9537/2012

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BETWEEN:

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HENRY MASCARENHAS, S/O THOMAS MASCARENHAS, AGED ABOUT 54 YEARS,

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DOROTHY MASCARENHAS , W/O HENRY MASCARENHAS, AGED ABOUT 36 YEARS,

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BOTH ARE R/O NEAR ABBANAKUDRU, SANTHEKATTE POST, UDUPI TALUK

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…APPELLANTS

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(BY SMT. SWATI G. HEGDE, ADVOCATE FOR SRI. PAVANA CHANDRA SHETTY H, ADVOCATE)

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AND:

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P. M. NARAYANA, AGED ABOUT 47 YEARS, S/O LATE SUBBA POOJARY, M/S NISHMITHA MOTORS, NEAR BUS STAND, MAIN ROAD, MOODABIDRI, MANGALORE TALUK.

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THE DIVISIONAL MANAGER, THE NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, UDUPI.

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…RESPONDENTS

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(BY SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R2; R1 NOTICE DISPENSED WITH VIDE RDER DATED 19.02.2014)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.07.2011 PASSED IN MVC NO.1354/2008 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2023:KHC:37653 MFA No. 9071 of 2012 C/W MFA No. 9535 of 2012 MFA No. 9537 of 2012

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JUDGMENT

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IN MFA.No.9071/2012

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Aggrieved by the award passed in MVC.No.No.1402/2008, MVC.No.1404/2008 and MVC.No.1354/2008 dated 29.07.2011 the claimants have preferred MFA.No.9071/2012, MFA.No.9535 and MFA.No.9537/2012.

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It is the case of the claimant in

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MVC.No.1404/2008 that he was treated as inpatient from 27.08.2005 till 07.09.2005 in Spandhana Hospital, karkalla. He was admitted into Father Muller Hospital, Mangalore on 12.09.2005 and discharged on 15.09.2005. They have filed the wound certificate i.e., Ex.P35. As per the wound certificate, he sustained two contusion injuries over his body, as two injuries are simple in nature the Tribunal had awarded an amount of Rs.20,000/- as global compensation.

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When it comes to MVC.No.1402/2008, the claimant had sustained multiple rib fracture right side,

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5 - NC: 2023:KHC:37653 MFA No. 9071 of 2012 C/W MFA No. 9535 of 2012 MFA No. 9537 of 2012

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fractures scapula right side, right sided haemothorax. They have filed Ex-P37 a wound certificate. As per the wound certificate, all the injuries are grievous in nature. It is the case of the claimant that he was working as a waiter in Palace hotel Baharine and earning sum of Rs.24,000/per month. As he has not adduced any evidence considering injuries, the Court below had granted an amount of Rs.45,000/- as global compensation.

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When it comes to MVC.No.1354/2008 and MVC.No.1393/2008, these applications are filed under Section 163-A of the Motor Vehicles Act, 1988. The boy who is aged about 10 years died at the spot. Ex.P6 is the post mortem report of the deceased. As per the birth certificate issued by the Head Master, Government Higher Primary School, Kodamgaimala, his date of birth is 28.04.1995. He was studying in fifth standard. Considering the age of the boy at 10 years, the proper multiplier is 15, applying multiplier and the notional income at Rs.15,000/, 1/3rd of the income was deducted towards personal and

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NC: 2023:KHC:37653 MFA No. 9071 of 2012 C/W MFA No. 9535 of 2012 MFA No. 9537 of 2012

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living expenses. The court below had arrived at loss of dependency at a sum of Rs.1,50,000/-. A sum of Rs.35,000/- was awarded towards future prospectus. A sum of Rs.2,000/- was awarded towards funeral expenses and Rs.2,500/- was awarded towards loss to estate. All together compensation of an amount of Rs.1,89,500/- was awarded.

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MFA.No.9071/2012 arising out of MVC 1404/2008

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In this case learned counsel for the appellant submits that, the claimant had sustained grievous injuries and granting compensation of an amount of Rs.20,000/globally was not right and no amount was granted towards the loss of income during laid up period. It is submitted that, the Court below without appreciating any of the evidence on record had granted the compensation.

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Learned counsel appearing for the insurance

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company submits that, the Court below considering the injuries sustained by the claimant which are simple in

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NC: 2023:KHC:37653 MFA No. 9071 of 2012 C/W MFA No. 9535 of 2012 MFA No. 9537 of 2012

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nature and as he has failed to examine the Doctor had rightly granted the global compensation of an amount of Rs.20,000/-.

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Having heard the learned counsels on either

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side, this Court has perused the entire evidence on record.

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The claimant has not adduced any evidence, no Doctor was examined, for the two simple injuries. The Court below had granted an amount of Rs.20,000/- as global compensation and this Court finds no reason to interfere. Accordingly, the appeal of the claimant, in MFA.No.9071/2012 is dismissed .

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MFA.No.9535/2012 arising out of MVC.No. 1402/2008

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It is contended by the learned counsel for the appellant that the claimant had sustained three grievous injuries. In support of the same, they have marked Ex.P37 i.e., wound certificate and it is the case of the claimant

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that he was working as waiter in Baharine and was earning an amount of Rs.24,000/- per month. The Court without

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8 - NC: 2023:KHC:37653 MFA No. 9071 of 2012 C/W MFA No. 9535 of 2012 MFA No. 9537 of 2012

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considering any of these aspects had granted global compensation of an amount of Rs.45,000/-.

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Learned counsel for the insurance company submits that though it is stated that the claimant was earning an amount of Rs.24,000/- per month no evidence was let in and no document is filed in support of the same and Court below has rightly granted an amount of Rs.45,000/- as global compensation. No grounds are made out seeking enhancement of the compensation.

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In this case, no doubt the claimants have not examined the Doctor. However, wound certificate is marked as Ex.37. The wound certificate discloses that, the claimant sustained three fractures, multiple rib fractures right side, fracture scapula right side and right sided haemothorax. In the light of these grievous injuries, the claimant is entitled for an amount of Rs.40,000/- under the head of pain suffering. Coming to the loss of earning during laid up period though he has stated that he was working as a waiter and earning an amount of Rs.24,000/-

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NC: 2023:KHC:37653 MFA No. 9071 of 2012 C/W MFA No. 9535 of 2012 MFA No. 9537 of 2012

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but he has not placed any evidence in support of the same. Considering that the accident had taken place in the year 2005 this Court is inclined to take the income at Rs.3,000/- and for the loss of income during the laid up period for three months, an amount of Rs.9,000/- is awarded. Towards transport, attendant no amount was granted by the Court below and this Court is inclined to grant Rs.10,000/- under the said head.

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In the light of the law laid down in V.MEKALA –V- M.MALATHI AND ANOTHER in¹ claimant is entitled for an amount of Rs.10,000/- towards legal expenses. All together, the claimant is entitled for an amount of Rs.69,000/-. Accordingly appeal of the claimant is partly allowed by enhancing the compensation from Rs.45,000/to Rs.69,000/-.

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MFA.No.9537/2012 Arising Out Of MVC.No.1354/2008

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In this case a boy of 10 years lost his life in the accident. An application is filed under Section 163-A of the

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1 2014 (11) scc 178

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10 -

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NC: 2023:KHC:37653 MFA No. 9071 of 2012 C/W MFA No. 9535 of 2012 MFA No. 9537 of 2012

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Motor Vehicles Act, 1981. The Court below considering the notional income at Rs.15,000/-, 1/3rd of the income is deducted towards personal and living expenses and granted a sum of Rs.1,50,000/towards loss of dependency, a sum of Rs.35,000/- was awarded towards future prospectus and a sum of Rs.2,000/- was awarded towards funeral expenses.

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Learned counsel for the appellant submits that, Hon'ble Apex Court in the case of KURVAN ANSARI

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ALIAS KURVAN ALI AND ANOTHER VS. SHYAM KISHORE MURMU AND ANOTHER² has considered the income at Rs.30,000/- and in that case accident had taken place in the year 2004. Learned counsel submits that, in this case also notional income of the claimant should be considered at Rs.30,000/- and the compensation that was awarded was not reasonable.

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Learned counsel appearing for the insurance company submits that this accident had taken place in the

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2 2022(1)SCC 317

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NC: 2023:KHC:37653 MFA No. 9071 of 2012 C/W MFA No. 9535 of 2012 MFA No. 9537 of 2012

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year 2005 and from this schedule the notional income was taken at Rs.15,000/- which was correct and he submits that they are not entitled for enhancement of compensation.

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Having heard the learned counsels on either sides perused the material on record.

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The learned counsel for the claimant has relied upon the judgment laid down by the Hon'ble Apex Court in Kuruvan Ansari referred supra where the accident had taken place in he year 2004, age of the boy was 7 years. The notional income was taken at Rs.30,000/- and granted the compensation of an amount of Rs.4,70,000/-. The said judgments squarely applies to the facts of the case. Hence the claimant is entitled for an amount of Rs.3,75,000/under the head of loss of dependency and towards consortium entitled for an amount of Rs.80,000/(40000x2)

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Learned counsel for the insurance company submits that, even as per the schedule 1/3rd has to be

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12 -

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NC: 2023:KHC:37653 MFA No. 9071 of 2012 C/W MFA No. 9535 of 2012 MFA No. 9537 of 2012

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deducted towards his personal expenses and towards funeral expenses only an amount of Rs.2,000/- has to be granted as per the schedule. This Court is not able to appreciate the submission of the learned counsel for the insurance company.

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In the light of the law laid down by the Apex Court in the case of KURVAN ANSARI referred supra under the head of Consotium an amount of Rs.80,000/- is granted and towards funeral expenses an amount of Rs.15,000/- is granted. All together an amount of Rs.4,70,000/- is granted as compensation.

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Accordingly, the appeal is partly allowed enhancing the compensation from Rs.1,89,500/- to 4,70,000/-.

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(i) The enhanced amount shall carry

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interest at 6% p.a. from the date of petition till the date of realization.

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iii) The respondent - insurance company shall deposit the amount within a period of

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13 - NC: 2023:KHC:37653 MFA No. 9071 of 2012 C/W MFA No. 9535 of 2012 MFA No. 9537 of 2012

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eight weeks from the date of receipt of copy of the judgment. On such deposit, the claimant is entitled to withdraw the entire amount without furnishing any security.

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iii) No costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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SD/JUDGE

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LDC List No.: 1 Sl No.: 9 CT: BHK

Anthoni D Souza v. P M Narayana

Case brief

What is this about?

What did the court decide?

Anthoni D Souza v. P M Narayana

Case brief

What is this about?

What did the court decide?

What the court decided

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