Partly allowed

Sri Mahadeva v. Sri B M Girisha

Karnataka HC11 Jan 2024MFA/2469/2020

Case brief

AI extract

What is this about?

A claimant injured in a road traffic accident with a lorry sought enhancement of the Tribunal's award after his right leg was amputated above the knee. The court raised disability to 50%, income to Rs 11,000 per month, and added loss of amenities, enhancing total compensation to Rs 17,09,923.

What did the court decide?

Compensation enhanced by Rs 5,46,800 to Rs 17,09,923; joint and several liability on owner and insurer and deposit/interest terms retained and applied to the enhanced sum.

Sri Mahadeva Vs Sri B M Girisha — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:1608-DB MFA No. 2469 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF JANUARY, 2024

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PRESENT

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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MISCELLANEOUS FIRST APPEAL NO.2469 OF 2020(MV-I)

BETWEEN:

Sri Mahadeva

S/o Late Mahadeva

Age about 27 Years

Residing At Uppara Doddi

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Kasaba Hobli, Malagaranahalli, Maddur Taluk

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Mandya District

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Digitally signed by VEENA KUMARI B Location: High Court of Karnataka

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(By Sri. Rajanna, Advocate)

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…Appellant

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And:

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Sri. B. M. Girisha

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S/o Mallesha

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Major,

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R/At Bitagowdanahalli Village and Post

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Hassan Taluk Hassan District.

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Reliance General Insurance Company Ltd., Office at 5^th Floor, Centenary Building, M.G. Road, Bengaluru -560001 Rep. by its Manager

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…Respondents

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(By Sri. Lingaraj H. S., Advocate for R-2; R-1 - served and un-represented)

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This Miscellaneous First Appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988, praying to call for the records in M.V.C.No.1468/2017, order dated 07-09-2019 on the file of the IX Additional Small Causes Judge & Motor Accident Claims Tribunal (SCCH-7), at Bengalore; allow this appeal/enhance the compensation as claimed in the claim petition; pass such other order or orders as this Court may deems fit in the circumstances of the case, including the cost of this appeal and enhance the award as prayed for, in the interest of justice and equity.

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This Miscellaneous First Appeal coming on for Final Hearing, through Physical Hearing/Video Conferencing, this day, Dr.H.B.Prabhakara Sastry J. delivered the following:

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J U D G M E N T

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The present appeal is filed by the claimant under Section 173 (1) of the Motor Vehicles Act, 1988, (hereinafter for brevity referred to as "M.V. Act"), seeking enhancement of the compensation awarded by the Court of the learned IX Additional Small Causes and Additional MACT, Bangalore, (SCCH-7) (hereinafter for brevity referred to as "the Tribunal"), in its judgment and award dated 07-09-2019, in M.V.C.No.1468/2017.

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The summary of the case of the claimant before

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the Tribunal is that, on the date 19-01-2017, at about 2:30 a.m., while he was proceeding by riding his Motor Cycle bearing registration No.KA-02/JG-6679 near Bullappa Industrial Estate Gate, Magadi Road, in order to go to his residence, on the extreme left side of the road, at that time, a Lorry bearing Registration No.KA-20/A8738 being driven by its driver in a rash and negligent manner came and dashed against his vehicle and caused

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the accident, due to which road traffic accident, he sustained multiple grievous injuries all over his body and the vehicle was also damaged.

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The claimant has stated that, after the accident, he was shifted to Madhu Hospital, Bangalore, where, he was stated that he sustained Type III Compound fracture of right leg with exposed Tibia and injuries to other parts of the body. He further stated that he also underwent a surgery to fractured site with insertion of external fixators, skin grafting, which were treated conservatively and was advised to take follow-up treatment regularly.

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The claimant stated that he was getting pain in his leg constantly and again he was admitted to Chinmaya Hospital, where he took treatment as an in-patient from the date 26-01-2017 to 07-03-2017 and he underwent another surgery in the form of medial hemisoleus muscle flap transposition, skin grafting and insertion of fixators and was asked to take further follow-up treatment.

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The claimant has further stated that he has spent a sum of 2,00,000/towards medical, conveyance, nourishment and other incidental expenses. He also submitted that, prior to the accident, he was hale and healthy and doing loader work at Sri Siddappaji Papers and earning a sum of 12,000/- per month. Due to the injuries and the permanent disability sustained in the road traffic accident in question, he has become permanently disabled and sustained loss of income.

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With this, he has claimed a compensation of a sum of `30,00,000/- from the respondents No.1 and 2, arraigning them as the owner and insurer of the alleged offending Lorry bearing No.KA-20/A-8738, respectively.

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In response to the service of summons upon the respondents before the Tribunal, both respondent No.1 and respondent No.2 appeared through their respective counsels. Though respondent No.1 (owner) did not file his objections, however, respondent No.2 (insurer) filed its Statement of Objections. In the objection statement, it

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stated that the claim petition filed by the claimant was not maintainable either in law or on facts. It denied all the averments made in the claim petition except those which were specifically admitted therein. Without prejudice, it denied that the alleged offending Lorry was involved in the alleged accident and also denied the manner of occurrence of the accident.

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The respondent No.2 - Insurer also took a contention that as on the date of occurrence of the road traffic accident, the rider of the Motor Cycle bearing Registration No.KA-02/JG-6679 was not having a valid and effective driving licence to ride the said vehicle. It took a contention that the road traffic accident in question was caused solely due to the rash and negligent riding of the Motor Cycle by the claimant, whereas the driver of the Lorry was driving the same carefully and cautiously and on the correct side of the road.

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The respondent No.2 (Insurer) though admitted that they had issued a policy of insurance in respect of the

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Lorry bearing registration No.KA-20/A-8738 in favour of the first respondent - owner, however, stated that the liability to indemnify the insured in respect of the said policy was as per the statute, terms, limitation and the conditions of the policy and that the insured was required to prove before the Court the vehicular documents and also that as on the date of the road traffic accident, the person who was driving the said Lorry had a valid and effective driving licence to drive the same. It further took a specific contention that the owner of the Lorry willfully

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entrusted the vehicle to a person who did not have a valid and effective driving licence to drive the same on the date of occurrence of the accident.

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The respondent No.2 Insurer also sought for protection under Sections 147, 149 and 170 of the M.V. Act and stated that the liability, if any, should be considerably reduced and mitigated by taking into consideration the higher degree of negligence on the part of the rider of the Motor Cycle bearing registration No.KA-

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NC: 2024:KHC:1608-DB MFA No. 2469 of 2020

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02/JG-6679. Thus, it prayed for dismissal of the claim petition filed by the claimant.

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Before the Tribunal, the claimant got himself examined as PW-1 and also examined four more witnesses as PW-2, PW-3, PW-4 and PW-5 and got marked documents from Exs.P-1 to P-26. On behalf of the respondents, one Sri. Lokesh, driver of the Lorry was examined as RW-1 and no document was marked as an exhibit.

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After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:

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Sl.No.	Particulars	Amount in`
1	Pain and sufferings, mental agony	80,000-00
2	Actual Medical expenses	2,81,923-00
3	For special diet and conveyance	10,000-00
4	Permanent disability	6,91,200-00
5	Future medical expenses	1,00,000-00
	Total	11,63,123-00

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The Tribunal has awarded a compensation of a

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sum of 11,63,123/- with interest at the rate of 6% per annum (excluding interest on a sum of `1,00,000/awarded towards future medical expenses) from the date of the claim petition till the date of realisation, holding the owner and Insurer jointly and severally liable to pay the said compensation and directed the respondent No.2 Insurer to deposit the award amount. It is against the said judgment and award passed by the Tribunal, the claimant has filed this appeal, seeking enhancement of compensation.

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Records were called for from the Tribunal and the same are placed before the Court.

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The learned counsel for the appellant (claimant)

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and the learned counsel for respondent No.2 (insurer) before this Court are physically appearing before the Court. Though notice was served upon the respondent

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No.1 (owner), he has remained absent and un-

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represented.

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Heard the arguments from both side. Perused the materials placed before this Court including the memorandum of appeal, impugned judgment and also the Tribunal records.

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The present appeal being the claimant’s appeal and the respondent No.2 - Insurer having not preferred either cross-objection or a counter appeal, the question of occurrence of the road traffic accident on the date, time and place as alleged by the claimant in his claim petition and also the alleged rash and negligent driving on the part of the driver of the offending vehicle are not in dispute.

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The claimant, who got himself examined as PW-1, has reiterated the contentions taken up by him in his claim petition even in his examination-in-chief also. He got produced and marked copies of First Information

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Report (FIR), complaint, spot mahazar, rough sketch of the spot of the accident, IMV report, Wound Certificate, copy of the charge sheet, discharge summary, nineteen (19) lab reports and sixty eight (68) prescriptions from Exs.P-1 to P-10 respectively. He also got marked eight photographs with a CD at Ex.P-13, two X-ray films at Ex.P-14, out-patient record at Ex.P-15, one more X-ray film at Ex.P-16. With this, he contended that the road traffic accident, as contended by him in his claim petition has occurred on the date, place and time mentioned in the claim petition and that the same was solely due to the rash and negligent driving of the Lorry bearing registration No. KA-20/A-8738, by its driver.

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Relying upon the discharge summary at Ex.P-8, lab reports at Ex.P-9, prescriptions at Ex.P-10, out-patient record at Ex.P-15, PW-1 (claimant) contended that in the said road traffic accident, he sustained multiple grievous injuries including Type III Compound fracture of right leg with exposed Tibia.

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In support of his contention, the claimant got examined one Smt. Devaki J., the Medical Record incharge of Chinmaya Hospital, as PW-3. The said witness produced an authorisation letter in her favour at Ex.P-17 and OP MLC record and case sheet at Ex.P-18 and Ex.P-19 respectively. Thus, her role was limited for the production of the medical records maintained by their Hospital.

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The claimant also got examined one more witness by name Smt. Lakshmidevi, the Medical Record Officer, as PW-5. The said witness produced an authorisation letter in her favour at Ex.P-25 and the case sheet at Ex.P-26.

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The respondent No.2 (insurer) got examined the

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driver of the Lorry, as RW-1, who, though admitted that he was the driver of the alleged offending vehicle, but contended that it was the Motor Cycle being ridden by the claimant which tried to overtake the Lorry from the left side and dashed against the edge of the footpath and on

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his own, fell in front of the Lorry along with the Motor Cycle. Though he tried to avoid the accident by taking the Lorry towards the right side of the road, in the meanwhile, the Lorry dashed against the median. Thus the accident has occurred solely due to the rash and negligent act of the claimant himself.

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However, the investigation conducted by the concerned Police ended in they filing a charge sheet as per Ex.P-7 against the driver of the Lorry accusing him of committing the offences punishable under Sections 279, 337 and 338 of the IPC and under Sections 134-A and 187 of the M.V. Act. Even the scene of offence panchanama at Ex.P-3 and the rough sketch at Ex.P-4 also shows that the fault was on the part of the driver of the Lorry but not on the part of the rider of the Motor Cycle. According to the IMV report at Ex.P-5, the occurrence of the accident was not due to any mechanical defect with either of the vehicles. Thus, the evidence of PW-1 corroborated by the documentary evidence at Exs.P-1 to P-20 would go to

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show that, the road traffic accident in question has occurred on the date, time and place as contended by the claimant in his claim petition solely due to the rash and negligent driving by the driver of the offending Lorry bearing registration No. KA-20/A-8738, wherein the claimant sustained grievous injuries.

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This finding gains support also by the fact that, disputing the finding of the Tribunal that the occurrence of the accident was solely due to the rash and negligent driving of the Lorry by its driver, the respondent No.2 insurer has not preferred any appeal against the impugned judgment.

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The claimant, as PW-1, has stated that in the accident, he sustained Type III compound fracture to right leg with exposed Tibia and injuries to other parts of the body. He has stated that immediately after the accident, he was shifted to Madhu Hospital, where he has taken

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treatment as an in-patient from 19-01-2017 to 26-01-2017 and underwent a surgery. External fixators

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and skin grafting was also done in the said Hospital. However, since he was getting constant pain and was not completely cured, he once again got admitted to the Chinmaya Hospital on the date 26-01-2017 where he underwent a skin surgery in the form of medial hemisoleus muscle flap transposition, split skin grafting and application of external fixators and was discharged on

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the date 07-03-2017. Since he was totally immobile, he had to hire a taxi and avail the services of a driver for commuting to the Hospital. For his further treatment, he was admitted to Victoria Hospital on the date 04-02-2019 where he had to undergo amputation of his right leg above the knee and was discharged on the date 18-02-2019.

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Thus, it shows that he has suffered lot of pain and suffering due to the injuries suffered by him in the road traffic accident. It is considering these aspects, since the Tribunal has awarded a compensation of a sum of `80,000/-, which is a reasonable amount under the facts and circumstances of the case, we do not find any reason to interfere in it.

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Though PW-1 stated that he has spent a sum of 5,00,000/towards his medical, conveyance, nourishment and other incidental charges, however, the medical prescriptions and bills produced by him at Exs.P-10, P-11, P-12 would go to show that the actual medical expenses incurred by him was only a sum of 2,81,923/-. Since the said amount has been awarded as a part of compensation by the Tribunal, we do not find any reason to modify the same.

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The claimant got examined one Dr. S. Ramachandra, as PW-4, who deposed that the claimant had taken treatment at Madhu Hospital, Chinmaya Hospital and at Victoria Hospital. At Victoria Hospital, the amputation of the right leg above the knee was done. After verifying the medical records from Exs.P-23 to P-26, PW-4 has stated that he opined that the claimant was suffering permanent disability of 50% to the whole body. Even in his cross-examination, he adhered to the same version. However, the Tribunal took the percentage of

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total permanent disability at 40% and the notional income of the claimant at a sum of `8,000/- per month, which is erroneous. Under the circumstances of the case, the Tribunal ought to have taken the percentage of permanent disability at 50% to the whole body.

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The learned counsel for the claimant vehemently contended that, the notional income of the claimant for the relevant year 2017, as recommended by the Karnataka State Legal Services Authority (KSLSA) is to be taken at a sum of `11,000/- per month, as such, taking the notional monthly income at a lower end by the Tribunal is erroneous.

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Per contra, learned counsel for the respondent Insurance Company submitted that the notional income taken by the Tribunal being reasonable, need not be interfered with.

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Admittedly, the road traffic accident in question has occurred on the date 19-01-2017. The notional income

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recommended by the Karnataka State Legal Services Authority (KSLSA) for the relevant year is a sum of 11,000/- per month, which majority of the Motor Accident claims Tribunals in the State have been following. However, the Tribunal, without attributing any cogent reason, has taken the income of the claimant at only a sum of 8,000/- per month, as such, the same deserves to be taken at a sum of `11,000/- per month.

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The undisputed age of the claimant as on the date of the accident was 24 years, for which, the proper multiplier applicable would be '18'.

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As such, towards future loss of income and permanent disability, the compensation for which the claimant is entitled to would be a sum of 11,88,000/- (i.e. 11,000/-x12x'18'x50/100). Since the Tribunal has awarded only a sum of `6,91,200/- under the said head, the same requires to be modified.

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Towards special diet and conveyance, the Tribunal has awarded a compensation of a sum of

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`10,000/-. Under the circumstances of the case, we find no reason to alter the same, as such, the same remains to be retained.

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Due to amputation of right leg above the knee, the claimant has suffered discomforts and loss of amenities in his life. However, the Tribunal has not awarded any compensation under the said head. Under the circumstances of the case, considering the nature of injuries and also permanent physical disability, we are of the view that the claimant is entitled for a compensation of a sum of `50,000/- towards loss of amenities.

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It is after considering the evidence of PW-4

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Doctor, regarding the future medical expenses which the claimant may incur, the Tribunal has awarded a compensation of a sum of `1,00,000/- towards future medical expenses. The same being a reasonable amount, under the facts and circumstances of the case, we do not find any reason to modify the same.

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Thus, as analysed above, the claimant is entitled

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for a modified compensation as tabulated below:

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Sl. No.	Particulars	Compensation awarded by Tribunal in`	Compensation awarded in this Court in`
1	Pain and sufferings, mental agony	80,000-00	80,000-00
2	Actual Medical expenses	2,81,923-00	2,81,923-00
3	For special diet and conveyance	10,000-00	10,000-00
4	Permanent disability	6,91,200-00	11,88,000-00
5	Future medical expenses	1,00,000-00	1,00,000-00
6	Loss of amenities in life	Nil	50,000-00
	Total	11,63,123-00	17,09,923-00

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Since the quantum of compensation awarded by

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the Tribunal at a sum of 11,63,123/- is in short by a sum of 5,46,800/-, for the said enhancement of a sum of `5,46,800/- only, the impugned judgment and award deserves to be interfered with.

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Accordingly, we proceed to pass the following :

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NC: 2024:KHC:1608-DB MFA No. 2469 of 2020

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O R D E R

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[i] The appeal filed by the claimant stands

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allowed in part;

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[ii] The impugned judgment and award passed by the learned IX Additional Small Causes and Additional MACT, Bangalore (SCCH-7) dated 07-09-2019, in M.V.C.No.1468/2017, is hereby modified to the extent that the compensation awarded at 11,63,123/- is enhanced by a sum of 5,46,800/- (Rupees Five Lakhs Forty Six Thousand Eight Hundred only), thus fixing the total compensation at `17,09,923/- (Rupees Seventeen Lakhs Nine Thousand Nine Hundred and Twenty Three only).

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[iii] The liability fixed by the Tribunal upon R-1 and R-2 jointly and severally and directing respondent No.2 Insurer to deposit the amount, period of deposit, rate of interest at `6% per

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annum and the terms regarding release of the amount shall all remain unaltered, as such,

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stands applicable to the enhanced sum also.

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Draw the modified award accordingly.

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Registry to transmit a copy of this judgment to the concerned Tribunal along with its records, without delay.

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Sd/JUDGE

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Sd/JUDGE

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BMV* List No.: 1 Sl No.: 56

Sri Mahadeva v. Sri B M Girisha

Case brief

What is this about?

What did the court decide?

Sri Mahadeva v. Sri B M Girisha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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