Partly allowed

Shivakumar M v. Munirathnamma

Karnataka HC9 Nov 2023MFA/981/2023

Case brief

AI extract

What is this about?

In a motor vehicle accident appeal, the High Court of Karnataka criticized the Claims Tribunal for understating disability at 15% and notional income. The court enhanced loss of future income and awarded Rs.25,000 for future medical expenses, totaling Rs.949,980.

What did the court decide?

Total compensation enhanced to Rs.949,980 including an increase in future income loss and award of Rs.25,000 for future medical expenses.

Shivakumar M Vs Munirathnamma — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC:40097 MFA No. 981 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 981 OF 2023 (MV)

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BETWEEN:

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SHIVAKUMAR M S/O MARALASIDDAPPA AGED ABOUT 49 YEARS R/AT NO 17. 1ST MAIN 1ST CROSS, SRI SAI BABA LAYOUT OPP ASHWINI HOSPITAL ANDRAHALLI MAIN ROAD PEENYA IIND STAGE, BENGALURU 560091

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…APPELLANT

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(BY SRI. RANGEGOWDA N R., ADVOCATE)

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AND:

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MUNIRATHNAMMA W/O LATE MURTHY AGED MAJOR R/AT NO 383, B K NAGAR Digitally signed OPP ANANDA SCHOOL by DHANALAKSHMI YESHWANTHPURA, BANGALORE-560022. MURTHY Location: High 2. THE MANAGER Court of Karnataka CHOLAMANDALM M S

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THE MANAGER CHOLAMANDALM M S GENERAL INSURANCE CO LTD GOLDEN HEIGHTS 5TH FLOOR, 59TH CROSS 4TH M BLOCK, RAJAJINAGAR BANGALORE 560010.

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…RESPONDENTS

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(BY SRI. MALLIKARJUNA REDDY N.A., ADVOCATE: SRI. PRADEEP B., ADVOCATE FOR R2 NOTICE TO R1 IS DISPENSED V/O DATED:09.11.2023)

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2 - NC: 2023:KHC:40097 MFA No. 981 of 2023

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:18.10.2022 PASSED IN MVC NO.1419/2021 ON THE FILE OF THE MACT, BENGALURU CITY, (SCCH-14), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant being aggrieved by the judgment dated 18.10.2022 passed by MACT, Bangalore in MVC No.1419/2021.

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Facts giving rise to the filing of the appeal briefly stated are that on 15.11.2020 when the claimant was proceeding on Honda Activa Moped bearing registration No.KA-41-EJ-6871 on NH-49, Tumkur-Bangalore Service road, near Jindal bus stop, Dasanapura Hobli, at that time, a goods auto bearing registration No.KA-04-B-4632 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant.

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NC: 2023:KHC:40097 MFA No. 981 of 2023

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As a result of the aforesaid accident, the claimant

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sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance charges, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.

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On service of notice, the respondent No.2 appeared through counsel and filed written statement in which the averments made in the petition were denied. The respondent No.1 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.Nagaraj.B.N. was examined as PW-2 and another

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4 - NC: 2023:KHC:40097 MFA No. 981 of 2023

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witness was examined as PW-3 and got exhibited documents namely Ex.P1 to Ex.P24. On behalf of the respondents, neither any witness was examined nor any document was produced. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.721,400/along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, the present appeal has been filed.

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The learned counsel for the claimant has raised the following contentions:

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a) Firstly, even though the claimant claims that he was doing coolie work and earning Rs.20,000/- per month, but the Tribunal has taken the notional income as merely as Rs.14,500/- p.m.

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5 - NC: 2023:KHC:40097 MFA No. 981 of 2023

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b) Secondly, the claimant has examined the doctor as PW-2. The doctor in his evidence has stated that the claimant has suffered disability of 72% to particular limb and 24% to whole body. But the Tribunal has taken the whole body disability at 15%, which is on the lower side.

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c) Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 10 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment. Considering the same, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are on the lower side.

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d) Lastly, even though the doctor has deposed that the claimant needs to undergo one more surgery for removal of implants and it would costs Rs.400,000/-, but the Tribunal has not awarded any compensation towards 'future medical expenses'. Hence, he sought for allowing the appeal.

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6 - NC: 2023:KHC:40097 MFA No. 981 of 2023

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On the other hand, the learned counsel for the Insurance Company has raised following counter contentions:

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a) Firstly, even though the claimant claims that he was earning Rs.20,000/- per month, he has not produced any documents to establish his income. In the absence of proof of income, the Tribunal has rightly assessed the income of the claimant notionally.

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b) Secondly, the Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 15%.

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c) Thirdly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are just and reasonable and it does not call for interference.

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d) Lastly, even though the doctor has deposed that the claimant requires Rs.4,00,000/- for removal of implants, he has not given any explanation regarding the cost

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7 - NC: 2023:KHC:40097 MFA No. 981 of 2023

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neither the claimant has also produced any bills or estimation for the surgery. Therefore, the Tribunal has rightly not granted any compensation for 'future medical expenses'. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.

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It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 15.11.2020 due to rash and negligent driving of the offending vehicle by its driver.

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The claimant claims that he was earning Rs.20,000/per month. Considering the age and avocation of the claimant and also considering the guidelines issued by the Karnataka State Legal Services Authority for assessing notional income, the Tribunal has rightly take the notional income of the claimant at Rs.14,500/- p.m..

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8 - NC: 2023:KHC:40097 MFA No. 981 of 2023

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As per wound certificate, the claimant has sustained post traumatic acetabular fracture of left hip, fracture of left leg, abrasion wound left elbow. The doctor in his evidence has stated that the claimant has suffered disability of 72% to particular limb and 24% to whole body. Therefore, taking into consideration the deposition

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of the doctor and injuries mentioned in the wound certificate, the whole body disability can be taken at 24%. The claimant is aged about 47 years at the time of the accident and multiplier applicable to his age group is ‘13’. Thus, the claimant is entitled for compensation of Rs.542,880/- (Rs.14,5001213*24%) on account of 'loss of future income'.

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In respect of 'future medical expenses' is concerned, even though the doctor has deposed that the claimant has to undergo one more surgery for removal of implants and requires Rs.4,00,000/-, he has not given any explanation regarding the cost neither the claimant has also produced any bills or estimation for the surgery. However,

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9 - NC: 2023:KHC:40097 MFA No. 981 of 2023

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considering the nature of injuries and evidence of doctor, I am inclined to award a sum of Rs.25,000/- towards 'future

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medical expenses'.

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13. Considering the nature of injuries, the compensation

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awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the following compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	80,000	80,000
Medical expenses	201,600	201,600
Food, nourishment, conveyance and attendant charges	27,000	27,000
Loss of income during laid up period	43,500	43,500
Loss of amenities	30,000	30,000
Loss of future income	339,300	542,880

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10 -

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NC: 2023:KHC:40097 MFA No. 981 of 2023

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Future medical expenses	0	25,000
Total	721,400	949,980

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In the result, the following order is passed:

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ORDER

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a) The appeal is allowed in part .

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b) The judgment of the Claims Tribunal is modified. c) The claimant is entitled to a total compensation of Rs.949,980/-.

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d) The Insurance Company is directed to deposit the

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compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of

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six weeks from the date of receipt of copy of this

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judgment.

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Sd/JUDGE

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List No.: 2 Sl No.: 13

Shivakumar M v. Munirathnamma

Case brief

What is this about?

What did the court decide?

Shivakumar M v. Munirathnamma

Case brief

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