Partly allowed

Sri Prem Kumar v. Mrs. Shashi Rekha v

Karnataka HC15 Oct 2024MFA/4706/2017

Case brief

AI extract

What is this about?

The High Court in a Motor Vehicles First Appeal held that the compensation awarded by the Tribunal for a motor accident injury case was inadequate. The Court enhanced the award considering higher disability, future medical costs, and updated income projections, allowing the appeal in part.

What did the court decide?

The appeal was allowed in part. Enhanced compensation of Rs. 7,19,500/- awarded with 6% interest.

Sri Prem Kumar Vs Mrs. Shashi Rekha v — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:41699-DB MFA No.4706/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF OCTOBER, 2024 PRESENT

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

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.4706/2017 (MV-I)

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BETWEEN:

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

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SRI. PREM KUMAR S/O YESUDAS AGED ABOUT 28 YEARS SINCE APPELLANT IS UNSOUND MIND HE IS REPRESENETD BY HIS BROTHER THE NATURAL GUARDIAN SRI. PRADEEP RAO S/O YESUDAS AGED ABOUT 38 YEARS

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BOTH R/AT NO.57 I MAIN ROAD, 5TH CROSS HEALTH LAYOUT, ANNAPURNEWARINAGAR BANGALORE - 560 091.

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…APPELLANT

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(BY SRI. N.M. PRUTHVIRAJ, ADV.,)

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AND:

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MRS. SHASHI REKHA V W/O YESUDAS AGED 35 YEARS R/AT NO.57, I FLOOR I MAIN ROAD, 5TH CROSS HEALTH LAYOUT, ANNAPURNESWARINAGAR BANGALORE - 560 091.

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BAJAJ ALLIANAZ GENERAL INSURANCE CO. LTD., NO.51, TBR TOVER, I CROSS NEW MISSION ROAD

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NC: 2024:KHC:41699-DB MFA No.4706/2017

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NEAR BANGALORE STOCK

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EXTENSION, BANGALORE - 560 027.

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…RESPONDENTS

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(BY SRI. B. PRADEEP, ADV., FOR R2 V/O/DTD:16.01.2024 NOTICE TO R1 IS D/W)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS. MODIFY THE JUDGMENT AND AWARD DATED 07/12/2016 PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL AT BANGALORE (ACMM-21) IN MVC NO.3211/2013, BY ALLOWING THE APPEAL THEREBY ENHANCE THE COMPENSATION & ETC.

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THIS APPEAL, COMING ON FOR FINAL 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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Challenging the adequacy of compensation awarded to him, the claimant in MVC No.3211/2013 on the file of the 21^st ACMM and 23^rd Addl. SCJ and MACT, Bengaluru has preferred this appeal.

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The appellant was the claimant and respondents were the respondents No.1 and 2 in MVC No.3211/2013. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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3 - NC: 2024:KHC:41699-DB MFA No.4706/2017

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Respondent Nos.1 and 2 were the registered owner and insurer of car No.KA-04 ML-3384.

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In the claim petition, claimant was represented through his next friend/brother on the ground that he was not able to defend himself due to his physical disability.

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On 24.12.2012 at about 12.10 p.m. when claimant, his mother and their family were proceeding from Bengaluru to Madurai in car No.KA-04 ML-3384 near Pappinayakanapathi, the said car met with an accident. In the accident, the claimant suffered grievous injuries. Claimant filed MVC No.3211/2013 claiming that the accident occurred due to actionable negligence on the part of the driver of the car. Due to the accident, claimant suffered grievous injuries, underwent surgeries leading to permanent physical disability and loss of future earnings. Therefore, he claimed compensation of Rs.40,00,000/- from the respondents.

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Respondent No.1 did not contest the petition. Respondent No.2, the insurer contested the petition denying occurrence of the accident, involvement of vehicle, actionable

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NC: 2024:KHC:41699-DB MFA No.4706/2017

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negligence on the part of the driver of the car, age, occupation and income of claimant and his permanent physical disability.

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Claimant was examined before the Tribunal as CW-

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It appears that the Court found him incapable of giving evidence due to his medical condition. Therefore, other witnesses were examined. The next friend of claimant was examined as PW-1, the doctors who treated him were examined as PWs-2 and 3. On behalf of claimant, Exs.P1 to P18 were marked. Respondents did not lead any evidence.

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The Tribunal, by the impugned judgment and award

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held that the accident occurred due to actionable negligence on the part of the driver of the car. Based on the evidence of PWs-2 to 4, Tribunal assessed the permanent disability of the claimant at 50% to the whole body, notionally considered his income at Rs.6000/- p.m., his age as 28 years, applied 17 multiplier and awarded compensation of Rs.6,93,426/- towards loss of future earnings. Tribunal awarded compensation of Rs.14,45,426/- on different heads as follows:

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Sl.	Particulars	Compensation
No.		in Rs.
1.	Pain and suffering	60,000/-
2.	Medical expenses	6,93,426/-

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NC: 2024:KHC:41699-DB MFA No.4706/2017

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3.	Loss of future income	6,12,000/-
4.	Loss of amenities and happiness	50,000/-
5.	Conveyance, food and nourishment	30,000/-
	TOTAL	14,45,426/- rounded to 14,45,500/-

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8. Claimants have challenged the said award on the

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ground that permanent physical disability assessed is on the lower side and the compensation awarded on all other heads is on the lower side.

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Sri.N.M.Pruthviraj, learned counsel for the appellants submits that having regard to the nature of injuries, period of hospitalization, evidence of PWs-2 to 4, compensation awarded on all heads is on the lower side. He further submits that the Tribunal ought to have awarded compensation for future medical expenses.

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Sri.B.Pradeep, learned counsel for respondent No.2 justifies the impugned award and the quantum of compensation granted.

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NC: 2024:KHC:41699-DB MFA No.4706/2017

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ANALYSIS

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As per the medical evidence, claimant had suffered the following injuries:

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i. head injury

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ii. fracture of left clavicle, iii. compound fracture of middle phalanx iv. fracture of left middle finger

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v. fracture of left second and third rib

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He had also suffered head injuries and his cognitive ability due to some extent had affected. He was treated as in patient for 51 days. PW-2 deposed that the inter-personal interaction of the claimant was slow. He had suffered bilateral postfrontal and temporal hemorrhagic contusion.

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Neurosurgeon PW-3 assessed the permanent physical disability of the claimant at 40% and Orthopedic surgeon PW-2 assessed his permanent physical disability at 14.5% to the whole body. In the absence of anything contrary, the Tribunal was not justified in restricting the disability to 50%. Disability assessed by both the doctors comes to 54.5% and that should have been rounded to 55%.

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Though claimant contented that he was working as Operator in Mitra Electrical and getting salary of Rs.7,500/-

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7 - NC: 2024:KHC:41699-DB MFA No.4706/2017

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p.m., he did not examine his employer to prove Ex.P10, salary certificate. Therefore, the income had to be assessed notionally. Having regard to the prevailing wage rates, cost of living during the relevant period and age of claimant, the Tribunal ought to have considered his monthly income at Rs.7,000/- p.m. instead of Rs.6,000/- p.m.

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Since the disability was more than 50%, having regard to the age of claimant and nature of his employment, 40% future prospects ought to have been added to the income in view of the judgment of the Hon'ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi¹ . Therefore, loss of monthly income comes to Rs.7,000/- + Rs.2,800/- = Rs.9,800/- x 55/100 = Rs.5,390/-. Applicable multiplier is 17. Therefore, the loss of future earnings comes to (Rs.5,390/- x 12 x 17) Rs.10,99,560/-.

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Claimant had suffered fracture of clavicle bone, two ribs and fracture of two fingers. He was hospitalized for 51 days. He had head injuries. Considering the same, the compensation of Rs.60,000/- awarded under the head pain and

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1 2017 (16) SCC 680

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8 - NC: 2024:KHC:41699-DB MFA No.4706/2017

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suffering is on the lower side. The Tribunal ought to have awarded Rs.1,00,000/- with regard to the same.

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Having regard to the nature of injuries, period of hospitalization and medical expenses, the compensation awarded on the head of loss of amenities is on the lower side. Awarding a sum of Rs.1,20,000/- in that head would meet the ends of justice. The medical expenses is awarded based on the evidence and that has to be maintained. The Tribunal ought to have awarded compensation towards loss of income during laid up period atleast for 6 months which comes to Rs.7,000/- x 6 = Rs.42,000/-.

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Having regard to the period of hospitalization, the compensation awarded on the head of food, nourishment and attendant charges is on the lower side and the same shall be considered at Rs.50,000/-. PW-4 deposed that the claimant had to undergo removal of implants and has to spend Rs.1,00,000/- for the said requirement in future. The Tribunal has not considered the same. The Tribunal ought to have awarded at least Rs.50,000/- under the said head.

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NC: 2024:KHC:41699-DB MFA No.4706/2017

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For the aforesaid reasons, just compensation

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payable is as follows:

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Sl. Particulars Compensation
No. awarded in
Rs.
1. Loss of future 10,99,560/-
earnings
2. Pain and suffering 1,00,000/-
3. Loss of amenities 1,20,000/-
4. Medical expenses 6,93,426/-
5. Loss of income during 42,000/-
laid up period
6. Food, nourishment, 60,000/-
attendant charges
and conveyance
6. Future medical 50,000/-
expenses
TOTAL 21,64,986/-
Compensation 14,45,500/-
awarded by the
Tribunal
Enhancement 7,19,486/-
Rounded off to 7,19,500/-

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Enhanced compensation shall carry interest at the rate of

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6% p.a.

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Hence, the following:

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ORDER

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i. Appeal is partly allowed.

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ii. Appellant - claimant is entitled to enhanced

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compensation of Rs.7,19,500/- with interest at 6% p.a. from the date of petition till its realization.

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10 -

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NC: 2024:KHC:41699-DB MFA No.4706/2017

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iii. Respondent No.2 - insurer shall deposit the enhanced compensation before the Tribunal within four weeks from the date of receipt of copy of this order. On such deposit, the Tribunal shall digitally release 50% of the deposited amount to the claimant / his next friend on assessing the present medical condition of the claimants. Balance 50% shall be invested in fixed deposit in the name of the claimant for a period of three years.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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List No.: 1 Sl No.: 43

Sri Prem Kumar v. Mrs. Shashi Rekha v

Case brief

What is this about?

What did the court decide?

Sri Prem Kumar v. Mrs. Shashi Rekha v

Case brief

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