Partly allowed

Santhosh Poojary v. Sathish

Karnataka HC19 Jan 2024MFA/1894/2022

Case brief

AI extract

What is this about?

Claimant-driver injured when a Bolero pickup rear-ended his autorickshaw sought enhancement of the Motor Accident Claims Tribunal award. The High Court upheld the Tribunal's findings on negligence, income, multiplier and 8% whole-body disability, enhanced only loss of amenities by Rs.20,000/-, raising total compensation to Rs.3,87,810/- with 6% interest.

What did the court decide?

Enhanced compensation by Rs.20,000/- under loss of amenities; total award modified to Rs.3,87,810/- with 6% interest, payable by insurer within four weeks.

Santhosh Poojary Vs Sathish — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:2753 MFA No. 1894 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF JANUARY, 2024 BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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MISCELLANEOUS FIRST APPEAL NO. 1894 OF 2022 (MV-I)

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BETWEEN:

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SANTHOSH POOJARY S/O PANDU POOJARY AGED ABOUT 42 YEARS R/AT CHOWOKODI MANE PADUKERE BRAHMAVARA TALUK UDUPI DISTRICT.

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…APPELLANT

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

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AND:

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Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA

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SATHISH S/O BASAVA MARKALA AGED ABOUT 41 YEARS R/AT JYOTHI NILAYA KOTA PADUKERE MANOOR VILLAGE UDUPI TALUK

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YOGISH

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S/O LATE NARASIMHA MARAKALA AGED ABOUT 40 YEARS R/AT MATAPADI MANE KOTHATTU VILLAGE KOTA POST UDUPI TALUK.

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UNIVERSAL SAMPO GENERAL INSURANCE CO LTD 3^RD FLOOR, KVV SAMRAT 217/A, 3^RD MAIN OUTER RING ROAD

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2 - NC: 2024:KHC:2753 MFA No. 1894 of 2022

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KASTURI NAGAR BENGALURU REP BY ITS BRANCH MANAGER

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…RESPONDENTS

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(NOTICE TO R-1 & R-2 IS DISPENSED WITH V.O.D 28.02.2022; SRI.B.C.SHIVANNE GOWDA .,ADVOCATE FOR R-3)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.11.2021 PASSED IN MVC NO. 297/2019 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.297/2019 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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NC: 2024:KHC:2753 MFA No. 1894 of 2022

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On 15.8.2018 at about 10.00 p.m., the claimant was driving his autorickshaw bearing Registration No.KA-20-A-8288 with three passengers from Saibrakatte towards Kota side. When the autorickshaw reached near Achaladi, Kota Saibrakatee road, Achaladi village, Udupi taluk, at that time, a Mahindra Bolero pick up vehicle bearing registration No.KA-20AA-1862 came in high speed and in a rash and negligent manner from Saibrakatte towards Kota side and dashed to the rear side of the autorickshaw, as a result the said autorickshaw dashed to the front side of the Hero Honda motorcycle bearing Registration No.KA-20-R-1331. Due to the impact of the accident, the claimant sustained grievous injuries and immediately shifted to Mahesh Hospital, where he was operated and treated by wound cleaning, mobilization, suturing, application of bandages etc., He was admitted as an inpatient from 15.8.2018 to 20.8.2018 and expended money to an extent of Rs.1,00,000/- towards medical expenses and hospitalization; Rs.10,000/towards food and extra nourishment; Rs.9,000/- towards conveyance charges.

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3.1 It is also pleaded that the claimant requires another sum of Rs.1,00,000/- towards future treatment and surgery. It

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4 - NC: 2024:KHC:2753 MFA No. 1894 of 2022

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is also stated that the claimant was aged 39 years at the time of the accident. He was working as a driver in his own autorickshaw and earning Rs.30,000/- per month. Due to the occurrence of the accident and injuries suffered, the claimant is permanently disabled and suffered mental agony and emotional stress. Hence, the claimant filed a claim petition seeking compensation.

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

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

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3.4 In order to substantiate the issues and establish the case and in view of another claim petition filed by the

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5 - NC: 2024:KHC:2753 MFA No. 1894 of 2022

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passenger of the autorickshaw, claimant in the connected claim petition has been examined as PW.1 and the claimant in the present claim petition got examined himself as PW.1; and doctors as PWs.3 and 4 and got marked Ex.P1 to P60 together as common evidence.

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3.5 Based on the material evidence, both oral and documentary, the Tribunal awarded total compensation of Rs.3,67,810/- alongwith interest at 6% per annum and directed Respondent No.3 - Insurance Company to pay compensation amount within 30 days.

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3.6 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.3 who assessed the disability to the

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6 - NC: 2024:KHC:2753 MFA No. 1894 of 2022

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larger extent than what was taken by the Tribunal. It is also contended by the learned counsel for the appellant - claimant that the Tribunal 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 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 since no proof of income is produced, the Tribunal has rightly taken the income of the claimant to be 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

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7 - NC: 2024:KHC:2753 MFA No. 1894 of 2022

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15.8.2018 between the autorickshaw in which the claimant was a driver 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 produced Ex.P1 to Ex.P60 alongwith the other claim petition relating to the same accident. The FIR registered and the charge sheet laid against the 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 rightly taken the age as 40 years and applied the correct multiplier of 15 and in the absence of proof of income, the Tribunal taken the notional income to be Rs.12,500/- per month as per Legal Services Authority chart and added 40% towards future prospects as per the guidelines issued by the Hon'ble Apex Court in the case of Pranay Sethi case, which does not call for interference.

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NC: 2024:KHC:2753 MFA No. 1894 of 2022

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The doctor/PW.3 assessed the disability with respect 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 rightly assessed the disability to be 8% to the whole body, which is not interfered by this Court.

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In view of the above, loss of income due to disability would be Rs.2,52,000/- {(Rs.12,500 + 40%) x 12 x 15 x 8 %}.

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Towards pain and suffering; medical expenses; conveyance, diet and attendant charges; and loss of income during the laid up period, the Tribunal rightly awarded compensation of Rs.40,000/-, Rs.13,310/-, Rs.10,000/- and Rs.37,500/- respectively, which does not call for interference.

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Towards loss of amenities, Rs.15,000/- is awarded by the Tribunal. In view of the fact that the claimant is stated to have worked as driver of an autorickshaw, 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

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9 - NC: 2024:KHC:2753 MFA No. 1894 of 2022

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Rs.3,87,810/- as against Rs.3,67,810/- awarded by the

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Tribunal, as mentioned in the table below:

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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 15 x 8%}	Rs. 2,52,000-00
2	Towards medical expenses	Rs. 13,310-00
3	Towards pain and suffering	Rs. 40,000-00
4	Towards conveyance, diet and attendant charges	Rs. 10,000-00
5	Towards loss of income during laid up period	Rs. 37,500-00
6	Loss of amenities	Rs. 35,000-00
	Total	Rs. 3,87,810-00

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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.3,87,810/- (Rupees three lakhs eighty-seven thousand eight hundred and ten only) as against Rs.3,67,810/awarded by the Tribunal along with interest at

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10 -

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NC: 2024:KHC:2753 MFA No. 1894 of 2022

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6% per annum from the date of petition till realization.

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iii) The impugned judgment & award passed by the Tribunal in MVC No.297/2019 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 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 List No.: 1 Sl No.: 61

Santhosh Poojary v. Sathish

Case brief

What is this about?

What did the court decide?

Santhosh Poojary v. Sathish

Case brief

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