Partly allowed

Bhaskar Devadiga v. Sathish

Karnataka HC18 Jan 2024MFA/1888/2022

Case brief

AI extract

What is this about?

Claimant injured as autorickshaw passenger in collision with Mahindra Bolero sought enhancement of compensation. Court upheld Tribunal's assessment of income, multiplier and disability, but enhanced compensation under loss of amenities, awarding Rs.16,60,816 with 6% interest.

What did the court decide?

Enhanced compensation of Rs.20,000 under loss of amenities; total Rs.16,60,816 with 6% interest, payable by insurer within four weeks; impugned award modified accordingly.

Bhaskar Devadiga Vs Sathish — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:2506 MFA No. 1888 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^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. 1888 OF 2022 (MV-I)

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BETWEEN:

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BHASKAR DEVADIGA, S/O RAMA DEVADIGA, AGED ABOUT 38 YEARS, R/O SRI KRISHNA, KALMADI ROAD, KOTHATHATTU VILLAGE, KOTA POST, UDUPI DISTRICT.

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…APPELLANT

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(BY SRI. H. PAVANA CHANDRA SHETTY, ADVOCATE)

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AND:

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Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

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SATHISH S/O BASAVA MARKALA AGED ABOUT 41 YERS R/O JYOTHI NILAYA KOTA PADUKERE MANOOR VILLAGE

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UDUPI TALUK.

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YOGISH

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S/O LATE NARSIMHA MARKALA AGED ABOUT 40 YEARS R/O MATAPADI MANE KOTATHATTU VILLAGE KOTA POST UDUPI TALUK.

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UNIVERSITY SAMPO GENERAL INSURANCE CO. LTD 3^RD FLOOR

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2 - NC: 2024:KHC:2506 MFA No. 1888 of 2022

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KVV SAMRAT 217/A, 3^RD MAIN, OUTER RING ROAD KASTURI NAGR BENGALURU REPRESENTED BY ITS BRANCH MANAGER.

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…RESPONDENTS

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(VIDE ORDER DATED 28.02.2022 NOTICE TO R1 AND R2 IS DISPENSED WITH;

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SRI. B.C. SHIVANNAE GOWDA, ADVOCATE FOR R3)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 30.11.2021 PASSED IN MVC NO.40/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, KUNDAPURA, 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 appellant-claimant challenging the judgment and award dated 30^th November, 2021 passed in MVC.No.40/2019 by the Court of Senior Civil Judge & Addl. MACT, Kundapura ( 'Tribunal' for short). This appeal is founded on the premise of inadequate and meager compensation awarded by the Tribunal.

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Parties to the appeal shall be referred to as per their status before the Tribunal.

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Brief facts of the case are as under:

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3 - NC: 2024:KHC:2506 MFA No. 1888 of 2022

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The claimant was traveling as a passenger in an autorickshaw alongwith two other passengers. When the autorickshaw reached near Achaladi, Kota Saibrakatee road, Achaladi village, Udupi taluk, at that time, a Mahindra Bolero vehicle bearing registration No.KA-20-AA-1862 came in high speed and in a rash and negligent manner and dashed against the autorickshaw in which the claimant was a passenger. Due to the impact of the accident, the claimant sustained grievous injuries and immediately shifted to K.M.C. hospital, Manipal where he was operated and treated by wound cleaning, mobilization, suturing, application of bandages etc., He was in-patient for 33 days and underwent several surgeries and expended money to an extent of Rs.4,00,000/- towards medical expenses and hospitalization. It is stated that the claimant was 35 years at the time of the accident. He was working as an Electrician earning Rs.35,000/- per month. Due to the occurrence of the accident and injuries suffered, the claimant was permanently disabled and suffered mental agony and emotional stress. Hence, the claimant filed a claim petition seeking compensation.

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NC: 2024:KHC:2506 MFA No. 1888 of 2022

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3.1 Respondent Nos.1 and 2 though served remained unrepresented and they were placed exparte before the Tribunal. The 3^rd respondent - Insurance Company filed written statement denying the claim of the claimant including age, avocation and the negligence attributed to the offending vehicle and pleaded for dismissal of the claim petition. It is also pleaded that the accident occurred due to the contributory negligence of driver of the autorickshaw in which the claimant was a passenger and sought for dismissal of the claim petition.

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3.2 On the basis of the pleadings, the Tribunal framed relevant issues for consideration.

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3.3 In order to substantiate the issues and establish the case, and in view of another claim petition filed by the copassenger, the claimant got examined himself as PW.1; claimant in the connected claim petition as PW.2; and doctors as PWs.3 and 4 and got marked Ex.P1 to P60 together as common evidence.

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3.4 Based on the material evidence, both oral and documentary, the Tribunal awarded total compensation of

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NC: 2024:KHC:2506 MFA No. 1888 of 2022

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Rs.16,40,816/- alongwith interest at 6% per annum and directed Respondent No.3 - Insurance Company to pay compensation amount within 30 days.

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3.5 Being aggrieved by the meager compensation awarded by the Tribunal, the appellant - claimant is before this Court seeking enhancement of compensation.

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It is the vehement contention of learned counsel for the appellant that the Tribunal erred in awarding meager compensation under the head of 'loss of income due to disability' without taking into consideration age, avocation and magnitude of the injuries suffered including the evidence adduced by the doctor/PW.4 who assessed the disability to the larger extent than what was taken by the Tribunal. It is also contended by the learned counsel for the appellant - claimant that the Tribunal has committed an error in awarding meager compensation under the other heads. Hence, he seeks for enhancement of compensation.

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Per contra, learned counsel representing the Insurance Company contends that there is no error, illegality or

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NC: 2024:KHC:2506 MFA No. 1888 of 2022

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perversity in the judgment & award passed by the Tribunal. He further contends that the Tribunal awarded just and reasonable compensation under all the heads, in accordance with the material evidence, both oral and documentary and the same does not call for interference. Learned counsel further contends that no material is placed before the Court to show that the claimant was an Electrician and since no proof of income is produced, the Tribunal has rightly taken the income of the claimant at Rs.12,500/- per month in accordance with the Legal Services Authority chart. On these grounds, learned counsel seeks for dismissal of the appeal.

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Having heard learned counsel for the parties and having perused the impugned judgment & award and the Trial Court Records, it is not in dispute that the accident occurred on 15.8.2018 between the autorickshaw in which the claimant was travelling and the Mahindra Bolero pickup vehicle, the offending vehicle. The accident occurred due to the rash and negligent driving of the Mahindra Bolero pickup vehicle. To establish this fact before the Tribunal, the claimant has produced Ex.P1 to Ex.P60 alongwith the other claim petition relating to the same accident. The FIR and the charge sheet are laid against the

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NC: 2024:KHC:2506 MFA No. 1888 of 2022

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driver of the offending vehicle, which have not been questioned. Therefore, the negligence is rightly attributed against the driver of the offending vehicle.

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Now coming to the aspect of age, avocation and income of the claimant as on the date of occurrence of the accident, the Tribunal has rightly taken the age as 34 years and applied the correct multiplier of 16 and in the absence of proof of income, the Tribunal has taken the notional income to be Rs.12,500/- per month as per Legal Services Authority chart

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and added 40% towards future prospects as per the guidelines issued by the Hon'ble Apex Court in Pranay Sethi's case, which does not call for interference.

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The doctor/PW.4 assessed the disability with respect

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to the particular limb and not mentioned the total disability. Considering the nature of injuries suffered by the claimant, disability certificate and the medical records, the Tribunal has rightly assessed the disability to be 30% cumulatively, which cannot be interfered by this Court.

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NC: 2024:KHC:2506 MFA No. 1888 of 2022

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In view of the above, loss of income due to disability would be Rs.10,08,000/- {(Rs.12,500 + 40%) x 12 x 16 x 30%}

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Towards medical expenses; pain and suffering; conveyance, diet and attendant charges; loss of income during the laid up period; and future medical expenses, the Tribunal rightly awarded Rs.3,27,816/-, Rs.1,20,000/-, Rs.20,000/-, Rs.75,000/and Rs.60,000/-, which does not call for interference.

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Towards loss of amenities, Rs.30,000/- is awarded by the Tribunal. In view of the fact that the claimant is stated to have worked as an Electrician, though there is no record, accepting the version and the oral evidence, I deem it appropriate to award additional Rs.20,000/- under this head.

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In view of the above discussion, the appellant - claimant would be entitled to total compensation of Rs.16,60,816/ - as against Rs.16,40,816/- awarded by the Tribunal, as mentioned in the table below:

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9 - NC: 2024:KHC:2506 MFA No. 1888 of 2022

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Sl. No.	Head of compensation	Amount of compensation awarded
1	Loss of income due to disability {(12,500 +40%) x 12 x 16 x 30%}	Rs. 10,08,000-00
2	Towards medical expenses	Rs. 3,27,816-00
3	Towards pain and suffering	Rs. 1,20,000-00
4	Towards conveyance, diet and attendant charges	Rs. 20,000-00
5	Towards loss of income during laid up period	Rs. 75,000-00
6	Loss of amenities	Rs. 50,000-00
7	Future medical expenses	Rs. 60,000-00
	Total	Rs.16,60,816-00

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Accordingly, I pass the following:

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O R D E R

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i) The appeal is allowed in part ;

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ii) The appellant/claimant is entitled to total compensation of Rs.16,60,816/- (Rupees sixteen lakhs sixty thousand eight hundred and sixteen only) as against Rs.16,40,816/awarded by the Tribunal along with interest at 6% per annum from the date of petition till realization.

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10 -

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NC: 2024:KHC:2506 MFA No. 1888 of 2022

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iii) The impugned judgment & award passed by the Tribunal in MVC No.40/2019 is modified accordingly.

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iv) The enhanced compensation amount shall be paid by the 3^rd respondent/Insurance Company with interest at 6% per annum, within a period of four weeks from the date of receipt of copy of this judgment.

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v) The compensation amount shall be released in favour of the appellant/claimant upon proper verification;

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vi) All other terms and conditions stipulated by the

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Tribunal shall stand intact.

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vi) Registry is directed to transmit the original records to the jurisdictional Tribunal forthwith.

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Sd/JUDGE

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GSS

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List No.: 1 Sl No.: 52

Bhaskar Devadiga v. Sathish

Case brief

What is this about?

What did the court decide?

Bhaskar Devadiga v. Sathish

Case brief

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