Partly allowed

Mr Suryakantha Poojary v. Mr Narayana Poojary

Karnataka HC23 Aug 2024MFA/3332/2019

Case brief

AI extract

What is this about?

Appeal filed by a claimant seeking enhancement of motor accident compensation awarded by the Tribunal. The High Court partially allowed the appeal, increasing the compensation amount from Rs. 5,30,436 to Rs. 7,98,036/- based on revised income and disability assessment.

What did the court decide?

Compensation enhanced to Rs. 7,98,036/- payable by the insurer with interest at 6% per annum.

Mr Suryakantha Poojary Vs Mr Narayana Poojary — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:33970 MFA No. 3332 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI

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MISCELLANEOUS FIRST APPEAL NO.3332/2019 (MV-I)

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BETWEEN:

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MR. SURYAKANTHA POOJARY, S/O LATE LAXMANA POOJARY, AGED ABOUT 58 YEARS, THAVAREKERE, MATTUKOPPA, MATTU, UDUPI TALUK - 576 329.

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…APPELLANT

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(BY SRI K. SHASHIKANTH PRASAD, ADVOCATE)

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AND:

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MR. NARAYANA POOJARY, S/O MR. KUDKA POOJARY, THEKALTHOTA,

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ENEGUDDE VILLAGE, UDUPI TALUK-576 329.

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Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka

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ORIENTAL INSURANCE CO. LTD., REP THE BRANCH MANAGER, 2^ND FLOOR, VISHNU PRAKASH BUILDING, COURT ROAD, UDUPI TALUK-576 329.

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(BY SRI S.Y. SHIVALLI, ADVOCATE FOR R2;

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R1 - SERVED)

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…RESPONDENTS

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.09.2018 PASSED IN MVC NO.360/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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NC: 2024:KHC:33970 MFA No. 3332 of 2019

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

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CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and award dated 20.09.2018 passed by Principal Senior Civil Judge and Additional Motor Accident Claims Tribunal, Udupi (for short 'Tribunal') in MVC.no.360/2014, this appeal is filed.

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Sri K. Shashikanth Prasad, learned counsel for appellant submitted that appeal was by claimant for enhancement of compensation. It was submitted, on 21.12.2013, when claimant was standing in front of Mahakali Garage near Katterkere of Pangala on NH-66 at about 7:30 p.m., an Auto-rickshaw bearing Registration no.KA-20-C-8320 driven by its driver in rash and negligent manner dashed against him. In said accident, claimant sustained grievous injuries and admitted to hospital for treatment. Despite treatment and spending money, he did not recover fully. There was amputation of left leg below knee resulting in permanent physical disability. Claiming compensation for same, he filed claim petition under Section

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NC: 2024:KHC:33970 MFA No. 3332 of 2019

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166 of Motor Vehicles Act, 1988, against owner and insurer of offending vehicle.

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On service of notice, owner did not appear and was placed ex-parte . Insurer filed written statement and opposed claim petition on all counts. Based on pleadings, Tribunal framed issues and recorded evidence. Claimant examined himself as PW-1 and Dr.Ashwath Acharya as PW-2. Exhibits P1 to P12 were marked. Respondent examined four witnesses as RW-1 to RW-4 and got marked Exs.R1 to R3.

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On consideration, Tribunal answered issue no.1 in affirmative, issue no.2 partly in affirmative and issue no.3 by allowing claim petition in part, determining compensation of Rs.5,30,436/- holding respondents jointly and severally liable to pay same with interest at rate of 6% per annum.

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Not satisfied with quantum, claimant is in appeal.

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It was submitted, as on date of accident claimant was 58 years of age and earning Rs.10,000/- per month by driving Auto-rickshaw. However, Tribunal was not justified in taking his monthly income at Rs.5,000/-. It was submitted, due to accidental injuries, there was amputation of his left leg below knee. However, Tribunal granted only Rs.75,000/-

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NC: 2024:KHC:33970 MFA No. 3332 of 2019

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towards pain and suffering. It was submitted, though amputation of left leg below knee had resulted in total loss of earning capacity, Tribunal erred in assessing it at 40% only. It was submitted, even compensation awarded towards loss of amenities, loss of income during laid-up period and other heads were on lower side and sought enhancement.

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On other hand, Sri S.Y. Shivalli, learned counsel for respondent no.2 - insurer sought to oppose appeal. It was submitted, in absence of substantial evidence, Tribunal rightly considered notional income. It was submitted, as amputation was below knee, assessment of functional disability at 40% was in tune with Employees Compensation Act. It was submitted, considering material on record, assessment of compensation on overall consideration was just and proper and no interference was warranted.

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judgment and award.

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From above, since claimant is in appeal only for enhancement, point that would arise for consideration is:

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"Whether claimant is entitled for enhancement of compensation as sought for?"

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NC: 2024:KHC:33970 MFA No. 3332 of 2019

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From above, occurrence of accident due to rash and negligent driving of insured vehicle and claimant sustaining grievous injuries in said accident are not in dispute. Tribunal assessed compensation and held insurer liable to pay same. Insurer has not filed appeal. Hence, liability of insurer to pay compensation is not in dispute.

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Insofar as monthly income, though claimant stated that he was earning Rs.10,000/- by driving Auto-rickshaw, same was not substantiated. Therefore, Tribunal was justified in assessing it notionally. But, notional income for year 2013 being Rs.8,000/-, which should have been considered, instead of Rs.5,000/-.

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Insofar as disability, PW.2-Doctor deposed that claimant sustained fracture of right femur, bilateral lower limb vascular injury, open dislocation of left great toe MP joint, fracture of proximal phalanx of second toe, left navicular bone fracture etc. As noted by Tribunal, during treatment IM nailing was done on 28.12.2013, wound debridement was done on 05.01.2024, amputation of left great toe on 09.01.2014, second left toe on 18.01.2014 and below knee amputation on 23.01.2014. PW-2 further deposed that claimant would not

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NC: 2024:KHC:33970 MFA No. 3332 of 2019

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be able to run, walk, carry heavy objects etc. and was required

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to use crutches or prosthesis due to which he had sustained 60% disability of left lower limb. While assessing functional disability, Tribunal has noted that claimant suffering from diabetes aggravated extent of disability. Despite said reasoning, Tribunal has assessed functional disability at 40%. Considering fact that claimant would be able to perform normal activities with prosthetic leg albeit with some difficulty, said assessment would not be either grossly inadequate or contrary to material on record. Hence, it is held there is no scope for enhancement of extent of disability. In view of above, compensation towards loss of future income would be:

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Rs.8,000/- X 40% X 12 X 9 = Rs.3,45,600/- .

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Tribunal has awarded Rs.75,000/- towards pain and suffering. Taking note of fact that there is amputation of leg below knee and referring to ratio in Raj Kumar v. Ajay Kumar reported in (2011) 1 SCC 343 , said amount would be grossly inadequate. Taking note of fact that claimant had suffered fracture of right femur also, it would be appropriate to enhance it to Rs.1,50,000/- .

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Tribunal considered period of six months as layoff. As per re-assessed income, it would require to be enhanced to

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NC: 2024:KHC:33970 MFA No. 3332 of 2019

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Rs.48,000/- . Tribunal has awarded Rs.1,49,436/- against

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medical bills, in complete reimbursement of medical expenses, leaving no scope for enhancement. Tribunal has noted that claimant was in-patient for a period of nearly one month. Therefore, award of Rs.10,000/- towards food, nourishment, attendance and conveyance would not be commensurate. It would be appropriate to enhance it to Rs.30,000/- . Likewise, award of Rs.50,000/- towards loss of amenities would also be on lower side and requires enhancement to Rs.75,000/- . Thus, total compensation would be:

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Heads of Compensation	Amount
Pain and suffering	Rs.1,50,000/-
Loss of future income	Rs.3,45,600/-
Loss of income during laid up period	Rs.48,000/-
Medical Expenses	Rs.1,49,436/-
Conveyance, food, nourishment, attendant charges	Rs.30,000/-
Loss of amenities	Rs.75,000/-
TOTAL	Rs.7,98,036/-

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Point for consideration is answered partly in affirmative

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as above. Consequently, following:

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ORDER

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i. Appeal is allowed in part;

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8 - NC: 2024:KHC:33970 MFA No. 3332 of 2019

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ii. Claimant is held entitled for enhanced

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compensation of Rs.7,98,036/- as against Rs.5,30,436/awarded by Tribunal.

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Same shall carry interest at rate of 6% per annum from date of claim petition till deposit.

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iii. Respondent no.2 - insurer is directed to deposit same within six weeks from date of receipt of certified copy of this order.

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iv. On deposit, compensation is ordered to be released to claimant.

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Sd/(RAVI V HOSMANI) JUDGE

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GRD

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List No.: 1 Sl No.: 25

Mr Suryakantha Poojary v. Mr Narayana Poojary

Case brief

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What did the court decide?

Mr Suryakantha Poojary v. Mr Narayana Poojary

Case brief

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