Allowed

Sri M Mani v. Sri a Gulsar

Karnataka HC19 Jan 2024MFA/1318/2021

Case brief

AI extract

What is this about?

The High Court allowed the first appeal against a motor accident compensation award. The Court found the Tribunal erred in assessing disability at 20% instead of 80% based on medical evidence. Consequently, the compensation for future earning capacity and loss of amenities was enhanced. Total award raised to Rs. 38.83 Lakhs.

What did the court decide?

The impugned judgment is modified. Total compensation enhanced to Rs. 38,83,000/- to be paid by the Insurance Company with 6% interest within six weeks.

Sri M Mani Vs Sri a Gulsar — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:2619 MFA No. 1318 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO.1318 OF 2021(MV-I)

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BETWEEN:

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SRI. M. MANI, S/O M. SUBRAMANYAM, NOW AGED ABOUT 31 YEARS, PERMANENT RESIDENT AT NO.2-6, MADDILEDU VILLAGE AND POST, SRIKALAHASTI MANDAL, CHITTOR DISTRICT, ANDHRA PRADESH.

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…APPELLANT

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(BY SRI. JAGADISH G KUMBAR, ADVOCATE FOR SRI. GOPALA KRISHNA N., ADVOCATE)

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AND:

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Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

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SRI. A. GULSAR, S/O ABDUL SATHAR, MAJOR BY AGE, RESIDING AT NO.26, 2ND MAIN ROAD, K P N EXTENSION, BENGALURU - 560 002.

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UNITED INDIA INSURANCE CO. LTD., REGIONAL OFFICE, NO.18, KRISHI BHAVAN, 5TH FLOR, OPP HUDSON CIRCLE NRUPATHUNGA ROAD BENGALURU - 560 001, REP BY ITS MANAGER.

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NC: 2024:KHC:2619 MFA No. 1318 of 2021

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…RESPONDENTS

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(BY SRI. CHANDRASHEKARA REDDY M.V., ADVOCATE FOR R2; VIDE ORDER DATED 10.04.2023, NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED. 30.11.2019, PASSED IN MVC NO.2174/2018, ON THE FILE OF THE VI-ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND ACMM., BENGALURU (SCCH-2), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal is preferred by the claimant against the judgment and award dated 30.11.2019 passed in MVC No.2174/2018 by the Motor Vehicles Accident Claims Tribunal (for short 'the MACT'), Bengaluru (SCCH.2). This appeal is founded on the premise of inadequate meager compensation awarded to the claimant. Hence, the appellant seeks enhancement of compensation.

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NC: 2024:KHC:2619 MFA No. 1318 of 2021

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Brief facts of the case are that :

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This is an unfortunate case of amputation of claimant's left leg above the knee due to the accident, while he was proceeding on his Honda Unicorn Motor Cycle bearing Registration No.AP-03-AY-4278 on 01.01.2018. While the claimant was riding his Motor cycle on Renugunta-Srikalahasti Main Road (NH-71 Road), when he reached Ayyappaswamy Temple, near Iskathageli Village, Yerpedu Mandal, Tirupathi Urban District, at that time, a Lorry bearing Registration No.KA-01 AD-8247 driven by its driver in a rash and negligent manner so as to endanger human life and safety, dashed against the Motor Cycle ridden by the claimant and knocked him down and ran over his left leg causing serious crush injuries to his left leg. Immediately he was shifted to nearby hospital at Srikalahasti and after administering first aid treatment,

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he was referred to SVRRG Hospital, after 3 days of inpatient treatment, he was referred to DBR Hospital, Tirupathi and then to Gleneagles Global Health City

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NC: 2024:KHC:2619 MFA No. 1318 of 2021

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Hospital, Chennai, where he took treatment as inpatient from 05.01.2018 to 10.01.2018. Despite the above said treatment, he was further admitted to Bird Hospital, Tirupathi and underwent amputation of left leg above knee. During the course of treatment the claimant expended about Rs.6,00,000/towards medicine, treatment, conveyance, nourishment and other incidental charges.

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Due to the injuries sustained in the accident the claimant had to undergo amputation of left leg above the knee, due to which he has encountered permanent physical disability, sustaining enormous financial loss, irreparable emotional and mental trauma and pain having undergone during the period of treatment. It is stated that the claimant was hale and healthy prior to the occurrence of the accident and he was working as a contract labour in Lanco Industries, Srikalahasti, Andhra Pradesh and earning income of Rs.15,000/- per month. Due to the amputation of his left leg above the knee, the claimant has lost his future earning capacity due to

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NC: 2024:KHC:2619 MFA No. 1318 of 2021

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permanent physical disability. In view of the same, for having incurred severe financial expenditures, mental and emotional distress, pain and trauma, the claimant has filed claim petition seeking compensation against the 2nd respondent/Insurance Company.

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Respondent No.1 remained absent despite service of notice. Respondent No.2/Insurance Company filed statement of objections admitting the policy of Insurance with the Lorry. However, denied the negligence attributed against the driver of the lorry and pleaded that the accident occurred due to the negligence on the part of the claimant himself as he was riding the motor cycle by consuming alcohol. It is also pleaded that there is a delay of 20 days in lodging the FIR and on this basis, he sought for dismissal of the claim petition.

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Based on the pleadings, the Tribunal framed the relevant issues for consideration in order to establish the case and prove the same. Claimant examined himself as PW.1, and got marked the documents Exs.P1 to P14, the Doctor was examined as PW.2 and through the Doctor got

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marked two documents Exs.P15 to P16, whereas respondent No.2/Insurance Company examined its Official as RW.1 and got marked the Policy as Ex.R1. On the basis of material evidence both oral and documentary and on hearing the submissions of learned counsel for both the parties, the Tribunal awarded total compensation of Rs.9,48,000/- and fastened the liability against the 2nd respondent/Insurance Company and directed to pay the same within a period of 60 days.

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The claimant being dissatisfied with the inadequate meager compensation awarded by the Tribunal is before this Court seeking enhancement.

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It is the vehement contention of the learned counsel for the appellant/claimant that the Tribunal has committed a gross error in not taking into consideration the materials placed on record and has also not assessed the proper income for awarding suitable compensation. It is also contended that the Tribunal has committed gross miscarriage of justice by not appreciating the materials on record and considering the present facts of the case,

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NC: 2024:KHC:2619 MFA No. 1318 of 2021

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whereas the claimant has lost his left leg above the knee due to amputation and has not taken the disability as 100% despite the Doctor PW.2 opining the disability to an extent of 80%, the Tribunal assessing the whole body disability at 20% is grossly erroneous, the same requires to be modified and 100% disability is required to be taken in the present case on hand. It is further contended by the learned counsel that the Tribunal has not awarded suitable compensation under other heads, whereby the Tribunal has committed an error in awarding total compensation to the claimant. Hence he seeks to allow the appeal and consequently enhance the compensation.

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Per contra, learned counsel representing the 2nd respondent/Insurance Company vehemently contends that the Tribunal has awarded just and reasonable compensation based on the materials placed on record and he contends that no interference is called for at the hands of this Court. He further contends that the assessment of income is made by the Tribunal, as no proof of income is produced so also the multiplier is correctly taken by the

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NC: 2024:KHC:2619 MFA No. 1318 of 2021

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Tribunal, which does not call for interference. He also contends that under other heads like prosthesis and future medical expenses, pain and suffering, loss of amenities, Tribunal has awarded just and reasonable compensation, thereby the award of compensation does not call for interference and enhancement is not called for in the present case, on these grounds he seeks to dismiss the appeal preferred by the claimant.

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I have heard the learned counsel for the appellant/claimant and learned counsel for the

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respondent/Insurance Company.

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It is not in dispute that on 01.01.2018 when the claimant was proceeding on his Honda Unicorn Motor Cycle, he met with an accident, wherein the lorry dashed against the Motor Cycle of the claimant leading to the crush injuries to the left leg of the claimant and due to injuries the left leg above the knee came to be amputated and enormous amounts were spent towards medical treatment. The fact remains that the claimant's left leg above the knee has been amputated.

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NC: 2024:KHC:2619 MFA No. 1318 of 2021

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Though the claimant has stated that he was earning monthly income of Rs.15,000/- working as Contract Labour in Lanco Industries at Srikalahasti, Andhra Pradesh, no documentary evidence has been placed in proof of the income. Under such circumstances, when there is no proof of income, the Tribunal ought to have relied on the chart of the High Court Legal Services Committee for computation of the income. The chart prescribes the income of Rs.12,500/- for the accident year 2018, whereas the Tribunal has assessed the monthly income of Rs.9,000/-. The same requires to be enhanced to Rs.12,500/-. The claimant was aged 25 years as on the

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date of occurrence of accident and the appropriate multiplier being '18' it was correctly taken by the Tribunal, which does not call for interference. The Doctor PW.2 has

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adduced evidence, who has treated the claimant. The Doctor has assessed the permanent disability to an extent

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of 80% to the whole body. However, the Tribunal on examining the evidence adduced by the Doctor, despite the evidence of the expert has reduced the disability to an extent of 20% to the whole body. I am in agreement with

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NC: 2024:KHC:2619 MFA No. 1318 of 2021

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the learned counsel for the appellant/claimant that reduction of the disability to 20% by the Tribunal ignoring

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the evidence of the expert Doctor PW.2, who assessed the permanent disability at 80% to the whole body is grossly erroneous, as the Tribunal cannot sit over the judgment and opinion expressed by the Doctor, who is an expert in the field of medicine. It is a different matter that if the Doctor, who has adduced the evidence is not the treated Doctor, however, once he is an Orthopedic Surgeon, the fact remains that there is an amputation of the left leg

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above the knee, that itself is sufficient to prove the fact that the claimant has lost his left leg above the knee, which would clearly depict that it is a permanent disability to an extent of 80%, hence I deem it appropriate to take the permanent disability at 80% for the purpose of functional disability. In the circumstances, the Tribunal is left with no other alternative, but to award future prospects in such cases.

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In the present case on hand, the Tribunal has awarded future prospects, considering the disability to be

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20%. Hence the 'loss of future earning capacity' due to disability would be by adding 40% towards future prospects i.e, Rs.5,000/- would come to Rs.12,500/- + 5000 = Rs.17,500/- x 12 x 18 x 80% = Rs.30,24,000/- as against Rs.3,89,000/- awarded by the Tribunal.

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The Tribunal has awarded Rs.1,43,000/- towards medical expenses, treatment and transportation on the basis of the bills produced, which does not call for interference. So also during the period of treatment, the

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Tribunal has awarded Rs.30,000/- towards food, nourishment and miscellaneous expenditure, the same does not call for interference. Towards loss of earning during laid up period, the Tribunal has awarded Rs.36,000/-, the same also does not call for interference. Towards Prosthesis, the Tribunal has awarded Rs.2,00,000/- which does not call for interference. Towards pain and suffering and trauma as a consequence of the injuries, the Tribunal has awarded Rs.1,00,000/-, I deem it appropriate to award Rs.1,50,000/- under this head. Towards loss of amenities and future marriage

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NC: 2024:KHC:2619 MFA No. 1318 of 2021

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prospects, the Tribunal has awarded Rs.50,000/-, I deem it appropriate to award Rs.3,00,000/- as the learned counsel for the appellant/claimant has relied on the judgment of the Hon'ble Apex Court in the case of KAJAL Vs. JAGDISH CHAND reported in AIR 2020 SC 776, wherein paragraph 28 reads as under:-

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"28. The Tribunal has awarded Rs.3,00,000/ for loss of marriage prospects. We see no reason to interfere with this finding."

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Learned counsel for the appellant/claimant relies on the judgment of the Hon'ble Apex Court in the case of ERUDHAYA PRIYA Vs. STATE EXPRESS TRANSPORT CORPORATION LIMITED., reported in AIR 2020 SC 4284 wherein in similar circumstances of amputation, the Hon'ble Apex Court has awarded compensation towards future prospects and loss of marriage prospects, which is applicable to the present case.

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In view of the above discussion the claimant would

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be entitled to total compensation of Rs.38,83,000/- as against Rs.9,40,000/- as mentioned in the table below:-

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1.	Towards Medical Expenses	Rs.1,43,000-00
2.	Food, nourishment and miscellaneous expenditure	30,000-00
3.	Loss of earning during treatment period	36,000-00
4.	Prosthesis and Future Medical expenses	2,00,000-00
5.	Damages for pain, suffering and trauma	1,50,000-00
6.	Loss of amenities / loss of marriage prospects	3,00,000-00
7.	Loss of future earning on account of permanent disability (Rs.12,500 + 40% = Rs.17,500/-) Rs.17,500 x 12 x 18 x 80%	30,24,000-00
	TOTAL	Rs.38,83,000/-

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Accordingly I pass the following :-

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ORDER

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a. The appeal is allowed .

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b. The impugned judgment and award dated 30.11.2019 passed in MVC No.2174/2018 by the

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NC: 2024:KHC:2619 MFA No. 1318 of 2021

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Motor Vehicles Accident Claims Tribunal, Bengaluru, is modified.

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c. The claimant is awarded total compensation of Rs.38,83,000/- as against Rs.9,48,000/- along with interest as stipulated by the MACT, Bengaluru.

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d. The enhanced compensation shall be paid by the 2nd respondent/Insurance Company with interest at 6% p.a. which shall be paid within a period of six weeks.

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e. All other terms stipulated by the Tribunal stands intact.

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Sd/JUDGE

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NG List No.: 1 Sl No.: 51 CT:SNN

Sri M Mani v. Sri a Gulsar

Case brief

What is this about?

What did the court decide?

Sri M Mani v. Sri a Gulsar

Case brief

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