Partly allowed

Sri Pramod v. Sujay Kamath

Karnataka HC24 Oct 2024MFA/285/2023

Case brief

AI extract

What is this about?

In a motor vehicle accident compensation appeal, the High Court increased the awarded compensation from Rs.20.13 lakhs to Rs.69.44 lakhs. The court enhanced disability to 100%, corrected the multiplier, and granted additional amounts for future medical care and marriage prospects.

What did the court decide?

Compensation enhanced by Rs.49,31,723/- with 6% interest; total awarded compensation raised to Rs.69,44,723/-. Insurer to deposit the amount.

Sri Pramod Vs Sujay Kamath — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:42821-DB MFA No.285/2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF OCTOBER, 2024

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.285/2023 (MV-I)

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BETWEEN:

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SRI PRAMOD S/O RAVEENDRA AGED ABOUT 27 YEARS R/O VIJAYA NAGARA 1^ST MAIN, 2^ND CROSS SAGAR TOWN - 577 401 SHIVAMOGGA DISTRICT …APPELLANT

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(BY SMT.VIJAYA M N, ADVOCATE)

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AND:

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SUJAY KAMATH

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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S/O PUNDALIKA KAMATH AGED ABOUT 40 YEARS R/AT 1^ST CROSS, AZAD ROAD SAGAR TOWN - 577 401 SHIVAMOGGA DISTRICT DRIVER OF MARUTHI OMNI CAR BEARING REG. NO.KA-15/M-8429

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SRI SUHAS L SHANBHAG S/O LAKSHMINARAYANA SHANBHAG AGED ABOUT 40 YEARS R/AT SRIRAMPURA EXTENSION SAGAR TOWN - 577 401 SHIVAMOGGA DISTRICT OWNER OF MARUTHI OMNI CAR

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BEARING REG.NO.KA.-15/M-8429

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THE BRANCH MANAGER IFFCO TOKIO GENERAL INSURANCE COMPANY LTD

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2 - NC: 2024:KHC:42821-DB MFA No.285/2023

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SHIVAMOGGA … RESPONDENTS

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(BY SRI.B.PRADEEP, ADVOCATE FOR R3; NOTICE TO R1 AND R2 ARE DISPENSED WITH V/O DTD:20.09.2023)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 19.08.2022 PASSED IN MVC NO.809/2019 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, ADDITIONAL MACT, SHIVAMOGGA, SITTING AT SAGAR, PARTLY ALLOWING THE CLAIM PETITION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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“Whether the compensation awarded to the

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appellant/claimant under the impugned award is just one?” is the question involved in this case.

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Appellant was the claimant and respondent Nos.1 to 3 were respondent Nos.1 to 3 in MVC No.809/2019 before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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On 01.03.2019 at about 5:15 p.m. when the

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claimant was traveling on motor bike bearing registration

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NC: 2024:KHC:42821-DB MFA No.285/2023

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No.K.A-66-E-1426 as pillion rider near Prajwal showroom, B.H road, Sagara, Maruti Omni car bearing registration No.KA-15M-8429 hit the said motorcycle and caused the accident. In the accident, claimant suffered grievous injuries. He was shifted to Government hospital, Sagara. After treating on emergency basis treatment in the said hospital, he was shifted to Mc.Gann hospital, Shivamogga for higher treatment. From there, he was shifted to Manipal hospital, Udupi. He was treated in Manipal hospital initially between 02.03.2019 and 25.03.2019. Due to post accident complication, he was admitted in the said hospital for second time on 27.04.2019 and treated as inpatient upto 08.05.2019. At the time of accident, respondent No.1 was the driver and respondent Nos.2 and 3 were the registered owner and insurer of the said vehicle respectively.

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Claimant filed MVC No.809/2019 before the Tribunal claiming compensation of Rs.1,80,00,000/- from the respondents contending that the accident occurred due to actionable negligence on the part of respondent No.1 and consequently he has suffered 100% permanent physical disability and loss of future earning. He claimed that he was earning Rs.40,000/- per month from operating car and a

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NC: 2024:KHC:42821-DB MFA No.285/2023

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Hitachi vehicle owned by his mother and respondent Nos.1 to 3 being driver, owner and insurer of the Maruti Omni car are liable to pay the damages.

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Respondent Nos.1 to 3 contested the petition

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denying actionable negligence on the part of respondent No.1, injuries, disability of claimant, his age, occupation, income and their liability to pay the compensation.

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In support of his case, claimant got himself examined as PW.1, the doctor who treated him as PW.2 and PWs.3 and 4 were examined to prove his income. On his behalf Exs.P1 to P36 were marked. Respondents did not lead any oral evidence. However, on their behalf, registration certificate, driving licence of respondent No.1 and insurance policy were marked as Exs.R.1 to R.3.

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The Tribunal on hearing the parties by the impugned award relying on the evidence of PW.1 and police records held that the accident occurred due to actionable negligence on the part of respondent No.1. The Tribunal referring to the evidence of PW.2, assessed permanent physical disability of the claimant at 25%, considered his age as 26 years and the income at Rs.20,000/- per month, applied 18

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5 - NC: 2024:KHC:42821-DB MFA No.285/2023

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multiplier and awarded compensation of Rs.10,80,000/- on the

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head of loss of future earnings. The Tribunal in all awarded

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compensation of Rs.20,13,000/- on different heads as follows:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of future income	10,80,000/-
2.	Pain and suffering	2,00,000/-
3.	Loss of income during laid off period	1,00,000/-
4.	Medical bills	4,32,723/-
5.	Food, nutrition and attendant charges	1,00,000/-
6.	Loss of amenities	1,00,000/-
	Total	20,12,723/-
	Rounded off	20,13,000/-

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Respondents have not challenged the findings of

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the Tribunal regarding actionable negligence or any other grounds. In the above appeal, claimant has questioned the adequacy of the compensation awarded to him.

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Smt.Vijaya M.N, learned Counsel for the claimant referring to the evidence of PW.2 and other materials on record submits that claimant was driver by profession and even according to PW.2, claimant has suffered 100% functional disability. Therefore, the finding of the Tribunal that he had suffered 25% permanent physical disability is erroneous. She

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further submits that having regard to the materials on records and evidence of PWs.1,3 and 4, the Tribunal ought to have taken income of the claimant at Rs.40,000/- per month and compensation awarded on the other heads is also on the lower side.

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Sri B Pradeep, learned Counsel for respondent No.3 – insurer submits that as per the evidence of PW.2, claimant had suffered 75% physical disability. Therefore, 100% physical disability cannot be taken. He further submits that absolutely there was no material to show that the claimant was earning Rs.40,000/- per month and the Tribunal ought to have applied 17 multiplier for the age of the claimant. He submits that the compensation awarded on the other heads is just one.

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Though the claimant contended that he had hired his car to Uber company and earning Rs.40,000/-, he himself in the cross-examination admitted that he did not own the car which was allegedly hired to Uber. Further he did not examine anybody from Uber company to show that he was being paid Rs.40,000/- as driver of the car or towards hiring of the said car. So far as the alleged income from the business of Hitachi vehicle, claimant himself admitted that the said vehicle was

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owned by his mother. His mother was not examined to state that the claimant was operating the said vehicle and he was deriving income from the said vehicle. Absolutely there was no material to show that he had control over the alleged income of the said vehicle. Further, if really claimant was earning Rs.40,000/- per month as alleged, he should have submitted income tax returns. But no such income tax returns were produced. Therefore, the Tribunal was justified in rejecting the claim that he was earning Rs.40,000/- per month. However, the Tribunal has considered his income at Rs.20,000/- per month, which cannot be said to be perverse or illogical.

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So far as the evidence of PW.2 the doctor who treated the claimant, it shows that at the time of admission claimant was found to have the following injuries:

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i. T8 burst fracture with paraplegia

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ii. Right femur shaft fracture

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The evidence of PW.2 further shows that on 03.03.2019 claimant underwent posterior spinal stabilization, decompression for T8 burst fracture and right femur interlock nailing. His evidence further shows that claimant developed urinary tract infection and after discharge, he was re-admitted

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on 27.04.2019 with bed sores and urinary tract infection. The evidence of PW.2 further shows that claimant had no bowel and bladder control and he was on wheel chair. Because of his immobility, the claimant was examined under a commission. PW.2 states that as per Government of India’s norms, under Gazette notification dated 05.01.2018, claimant’s permanent physical disability has to be assessed at 75%. However, he has 100% functional disability. The evidence on record shows that the claimant was treated as inpatient for a total period of 65 days intermittently between 01.03.2019 and 23.11.2020. Claimant was driver by profession. Having regard to such condition of the claimant, the Tribunal had no reason to reduce the disability, deviating from the evidence of PW.2 the doctor who is an expert. In our considered opinion, the functional disability has to be assessed at 100%.

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Based on the driving licence, the Tribunal was justified in assessing age of the claimant at 26 years. However, the Tribunal was in error in applying 18 multiplier since as per the judgment of the Hon’ble Supreme Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and

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NC: 2024:KHC:42821-DB MFA No.285/2023

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another¹ for the age of 26 years, applicable multiplier is 17. As claimant had suffered 100% disability, in view of the judgment of Hon'ble Supreme Court in the case of National Insurance Company Limited vs . Pranay Sethi and Others² , 40% has to be added to the income of the claimant by way of future prospects. Therefore, his monthly income comes to Rs.28,000/(20,000 + 8,000) and compensation payable on the head of loss of future earning is Rs.57,12,000/- (28,000 x 12 x 17).

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Having regard to the nature of the injuries and medical evidence on record, compensation awarded on the head of pain and suffering, loss of amenities, diet and conveyance charges need to be maintained. Medical expenses awarded is also needs to be maintained, as the same is based on the evidence produced by the claimant.

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Having regard to evidence of PW.2 that in future also claimant needs medical treatment for medical condition and an attendant, the Tribunal ought to have awarded compensation on those heads and also for loss of marriage prospects. Awarding compensation of Rs.2,00,000/- on the head of future medical expenses and attendant charges and

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1(2009) 6 SCC 121

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2(2017) 16 SCC 680

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10 -

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NC: 2024:KHC:42821-DB MFA No.285/2023

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Rs.2,00,000/- on the head of loss of marriage prospects meets the ends of justice.

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Since 100% disability is considered and

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compensation for loss of future earnings is awarded from the date of accident, compensation on the head of loss of income during laid up period, need not be paid. Therefore, the just compensation payable is as follows:

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Particulars	Amount (Rs.)
Loss of future earning	57,12,000/-
Pain and suffering	2,00,000/-
Medical expenses	4,32,723/-
Diet, and conveyance during	1,00,000/-
the hospitalization
Loss of amenities	1,00,000/-
Future medical expenses	2,00,000/-
and attendant charges
Marriage prospects	2,00,000/-
Total	69,44,723/-
Less award by Tribunal	20,13,000/-
Enhanced compensation	49,31,723/-

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For the aforesaid reasons, appeal deserves to be

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allowed in part. Hence, the following:

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ORDER

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i. The appeal is allowed in part.

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11 -

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NC: 2024:KHC:42821-DB MFA No.285/2023

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ii. The impugned award is modified as follows:

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a. The compensation awarded to the appellant - claimant under the impugned award is enhanced by Rs.49,31,723/- with interest thereon at 6% p.a. from the date of petition till its realization.

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b. Respondent No.3 - insurer shall deposit the said amount before the Tribunal within four weeks from the date of receipt of copy of this order.

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c. Out of the enhanced compensation, 50% shall be digitally released to the claimant and balance 50% shall be invested in Fixed Deposit in any Nationalized/Scheduled Bank of the choice of the claimant for a period of five years.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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PKN List No.: 1 Sl No.: 32

Sri Pramod v. Sujay Kamath

Case brief

What is this about?

What did the court decide?

Sri Pramod v. Sujay Kamath

Case brief

What is this about?

What did the court decide?

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