Partly allowed

P B Nagaraj @ Pujara Nagaraja v. the Partner

Karnataka HC22 Oct 2024MFA/6175/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed both appeals partly. The court upheld the finding of actionable negligence but modified the compensation award, enhancing it to Rs. 24,24,703/- based on revised disability assessment, income calculations, and heads of loss.

What did the court decide?

Compensation awarded to appellant as total Rs. 24,24,703/- subject to enhancement and interest at 6% p.a.

P B Nagaraj @ Pujara Nagaraja Vs the Partner — Medical Negligence | Karnataka HC (2024)

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1 - NC: 2024:KHC:42330-DB MFA No.6175/2021 C/W MFA No.4856/2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND 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.6175/2021 (MV-I)

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C/W

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MISCELLANEOUS FIRST APPEAL NO.4856/2020 (MV-I)

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IN M.F.A. NO. 6175/2021

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BETWEEN:

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P B NAGARAJ @ PUJARA NAGARAJA S/O BENALAPPA AGED ABOUT 47 YEARS R/AT BANNIKALLU POST AGARI BOMMANAHALLI TALUK BALLARY DISTRICT – 583 212 …APPELLANT

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(BY SRI.GANESHA R, ADVOCATE)

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AND:

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

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THE PARTNER M/S SOUTHERN TRANSLINKS 1^ST FLOOR, ABCO TRADE CENTRE KOTTARA CHOWKI MANGALORE – 575 006

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THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO. LTD., MANGALORE CITY BRANCH RAM BHAVAN COMPLEX 2^ND FLOOR, KODIALBAIL MANGALORE

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REPRESENTED BY NEAREST D.M.D.O. SRI RAM BUILDING OPP.HEAD POST OFFICE

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UDUPI – 576 101 … RESPONDENTS

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(BY SRI.C.R.RAVISHANKAR, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH V/O DTD:08.11.2022)

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NC: 2024:KHC:42330-DB MFA No.6175/2021 C/W MFA No.4856/2020

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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 05.02.2020 PASSED IN MVC NO.6/2019 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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IN M.F.A. NO.4856/2020

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BETWEEN:

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THE NEW INDIA ASSURANCE CO. LTD., MANGALORE CITY BRANCH RAM BHAVAN COMPLEX, 2^ND FLOOR, KODIALBAIL, MANGALORE

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REP. BY THE NEW INDIA ASSURANCE CO. LTD. MOTOR THIRD PARTY CLAIMS HUB MAHALAKSHMI CHAMBERS NO.9, 2^ND FLOOR, M G ROAD BANGALORE - 560 001 REP. BY MANAGER ...APPELLANT

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(BY SRI. C R RAVISHANKAR, ADVOCATE)

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AND:

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SRI P B NAGARAJ @ PUJARA NAGARAJA AGED ABOUT 47 YEARS S/O SRI BENALAPPA R/AT BANNIKALLU POST AND VILLAGE AGARI BOMMANAHALLI TALUK BELLARY District

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THE PARTNER

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M/S SOUTHERN TRANSLINKS 1^ST FLOOR, ABCO TRADE CENTRE KOTTARA CHOWKIO MANGALORE – 575 006 … RESPONDENTS

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(BY SRI.GANESHA R, ADVOCATE FOR R1; R2 IS SERVED)

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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 05.02.2020 PASSED IN MVC NO.6/2019 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, AWARDING COMPENSATION OF RS.19,04,703/- WITH

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3 - NC: 2024:KHC:42330-DB MFA No.6175/2021 C/W MFA No.4856/2020

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INTEREST AT 6 PERCENT P.A FROM THE DATE OF PETITION TILL FULL AND FINAL REALIZATION.

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THESE APPEALS, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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

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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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These appeals are filed challenging the judgment and award in MVC No.6/2019 passed by Principal Senior Civil Judge and Additional Motor Accidents Claims Tribunal, Udupi.

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The appellant in MFA No.6175/2021 was the sole claimant, respondent Nos.1 and 2 in the said appeal were respondent Nos.1 and 2 in MVC No.6/2019. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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According to the claimant, on 16.07.2018 at about 1:00 p.m., when he was standing on the pavement of N.H-66, Karavali bypass road, lorry bearing registration No.K.A.19-AB6086 hit him and caused him grievous injuries. The claimant was shifted to the District hospital, Udupi and thereafter he was treated in Wenlock hospital, Mangalore. He underwent certain surgeries and his right leg below the knee was amputated. At

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NC: 2024:KHC:42330-DB MFA No.6175/2021 C/W MFA No.4856/2020

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the time of accident, respondent Nos.1 and 2 were the registered owner and insurer of lorry bearing registration No.K.A.19-AB-6086 respectively. Claimant filed MVC No.6/2019 before the Tribunal claiming compensation of Rs.36,09,000/alleging that the accident and consequent permanent physical disability to him occurred due to actionable negligence on the part of the driver of the lorry. He claimed that he was working as coolie, earning Rs.700/- per day and due to permanent physical disability, he suffered loss of future earnings, amenities, etc. He claimed that respondents are jointly and severally liable to pay the said compensation.

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Before the Tribunal, respondent No.1 did not contest the matter. Respondent No.2 – insurer contested the petition denying actionable negligence on the part of the driver of the lorry, age, occupation, income of the deceased, his permanent physical disability and its liability to pay the compensation. Respondent No.2 further contended that accident occurred solely due to the negligence on the part of the claimant himself.

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To substantiate his case, claimant got himself examined as PW.1, doctor as PW.2 and got marked Exs.P1 to P19. On behalf of respondent No.2 – insurer, driver of the lorry

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bearing registration No.K.A.-19-AB-6086 was examined as RW.1

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and insurance policy was marked as Ex.R1.

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The Tribunal on hearing the parties by the impugned

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award held that the accident occurred solely due to the actionable negligence on the part of the driver of the lorry. The Tribunal relying on the evidence of PW.2, assessed permanent physical disability of claimant at 100%. The income of the claimant was notionally considered at Rs.10,000/- per month, applied 13 multiplier and awarded compensation of Rs.15,60,000/- on the head of loss of future earnings.

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The Tribunal in all awarded compensation of

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Rs.19,04,703/- on different heads as follows:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Pain and suffering	1,00,000/-
2.	Loss of future income	15,60,000/-
3.	Medical expenses	94,703/-
4.	Conveyance, food, nourishment, attendant charges (including future medical expenses)	50,000/-
5.	Loss of amenities in life	1,00,000/-
	Total	19,04,703/-

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Questioning adequacy of compensation, claimant has preferred MFA No.6175/2021. Questioning findings of the Tribunal regarding negligence, permanent physical disability and quantum of compensation, insurer has preferred MFA No.4856/2020.

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Sri Ganesha R, learned Counsel for the claimant challenges the award on the ground that notional income of the claimant considered by the Tribunal is on the lower side. He submits that the Tribunal ought to have added future prospects to the income of the claimant and awarded compensation on the head of loss of income during laid up period. He further submits that compensation awarded on the other heads is also on the lower side.

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Per contra, Sri C R Ravishankar, learned Counsel for

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the insurer submits that the evidence of RW.1 and other materials on record show that claimant himself was negligently crossing the road and that has led to the accident. Therefore, finding of the Tribunal regarding negligence is unsustainable. He further submits that despite PW.2 assessing disability at 76%, the Tribunal has taken the same at 100%, which is erroneous.

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He questions the compensation awarded on the other heads also.

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Considering the submissions of both sides and on examining the materials on record, the questions that arise for determination of this Court are:

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i. Whether the finding of the Tribunal that the accident occurred due to actionable negligence of driver of the lorry bearing registration No.K.A.19-AB-6086 is sustainable?

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ii. Whether compensation awarded to the claimant is just one?

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Analysis :

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Reg. Liability:

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The insurer does not dispute that on 16.07.2018 at 1:00 p.m. by the side of Karavali bypass road, within the limits of Udupi Traffic Police station, the claimant was hit by lorry bearing registration No.K.A-19-AB-6086 and the said lorry was insured with respondent No.2. However, the only contention is that claimant himself abruptly crossed the road without exercising due diligence, therefore he himself is responsible for the accident. The evidence of PW.1 and Exs.P1 to P6 show that soon after the accident, on receiving the information, SHO of

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Udupi Traffic Police visited the District hospital, Udupi where the claimant was first treated and recorded his statement. Based on

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the said submission, he registered FIR as per Ex.P1 against RW.1, the driver of the lorry in Crime No.70/2018 of their police station.

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The aforesaid records further show that on investigation, Udupi Traffic Police filed chargesheet as per Ex.P6 against RW.1 alleging that when claimant was standing on the foot path, RW.1 drove the lorry in rash and negligent manner, hit the claimant causing him grievous injuries and laid the chargesheet for the offences punishable under Sections 279 and 338 IPC. RW.1 in his chief-examination contended that when his lorry was in motion, there was a bus parked in front of him and claimant suddenly crossed the service road, which led to the accident and he was acquitted in the criminal case. But in the cross-examination, he himself admits that the accident took place on the edge of the foot path. Respondents did not produce any records to show that respondent No.1 was acquitted on trial in the criminal case. He admits filing of chargesheet against him. If really, RW.1 was acquitted, there was no reason for respondent to suppress such judgment.

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9 - NC: 2024:KHC:42330-DB MFA No.6175/2021 C/W MFA No.4856/2020

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PW.1/claimant is the injured eyewitness, his evidence stands on higher pedestal. That was further corroborated by Ex.P6 chargesheet and Ex.P2 spot mahazar which is annexed with spot sketch. Sketch of scene of occurrence shows that the accident has taken place on the edge of the foot path. The driver of the lorry had no reason to hit the foot path, therefore such evidence falsified the contention of respondent No.2 and RW.1 that claimant abruptly crossed the road and he was responsible for the accident. The Tribunal on sound appreciation of the evidence has arrived at the conclusion that the accident occurred solely due to actionable negligence on the part of driver of the lorry. Therefore, there are no grounds to interfere with the same.

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Reg. Quantum:

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The evidence of PWs.1, 2 and medical records show that at the time of accident, claimant was aged 46 years. The evidence of PW.2, Exs.P11 to P13, P17 and P19 i.e., discharge summary, medical certificate, disability certificate, case-sheet and OPD receipts respectively, show that soon after the accident, claimant was admitted into the District hospital, Udupi and he was treated in the said hospital. Thereafter, he was

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NC: 2024:KHC:42330-DB MFA No.6175/2021 C/W MFA No.4856/2020

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treated in Kasturba hospital, Manipal between 04.08.2018 and 03.09.2018.

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The above evidence further shows that initially claimant had suffered degloving injury of right ankle and crush injuries. The medical evidence further shows the claimant developed some complication due to infection of the injuries and ultimately, on 07.08.2018 his right leg below knee was amputated and on 10.08.2018 there was revision of amputation. In all, he was treated 30 days as inpatient in Kasturba hospital, Manipal. Though it was alleged that he was treated as inpatient in Wenlock hospital, Mangalore and District hospital, Udupi for 15 days, no evidence was adduced regarding such period of hospitalization.

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The evidence of PW.2 shows that claimant had

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suffered below knee amputation at the level of upper third of right tibia. PW.2 assessed disability at 76%. Learned Counsel for the insurer contends that PW.2 was not the treating doctor, therefore, his evidence regarding disability cannot be taken. However, the fact that claimant was treated in Kasturba hospital, Manipal and PW.2 was working in the said hospital as Asst. Professor of Orthopaedics during that time, was not

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disputed. PW.2’s competence to assess the disability was also not disputed. Therefore, we do not find any merits in the contention that the evidence of PW.2 regarding assessment of disability cannot be accepted. The evidence on record shows that the claimant was a labourer, which involves physical work. The evidence of PW.2 itself shows that claimant has undergone amputation of below knee at the level of upper third right tibia, therefore, it cannot be said that there was total functional disability. At the most, the Tribunal should have assessed his permanent physical disability at 80%, not at 100%.

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There was no proof of actual income of the claimant. Considering the prevailing wage rates and cost of living at the time of accident, the Tribunal should have fairly considered his monthly income at Rs.12,500/-. Since disability was more than 50%, 25% of the income by way of future prospects has to be added to the same. Therefore, his monthly income comes to Rs.15,625/- (12,500 + 3125). Applicable multiplier is 13. Thus, his total income comes to Rs.24,37,500/- (15,625x12x13). Therefore, loss of future earnings due to 80% permanent disability comes to Rs.19,50,000/- (24,37,500 x 80/100).

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It could be fairly held that the claimant was not able to attend to his routine works for about six months. The compensation ought to have been awarded for loss of earnings during laid up period, which comes to Rs.75,000/- (12,500 x 6).

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Having regard to the nature of the injuries and period of hospitalization, compensation awarded on the head of pain and suffering has to be enhanced to Rs.1,25,000/-. The medical expenses awarded was based on the documents produced, therefore, that needs to be maintained.

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Considering the period of hospitalization, injuries and nature of treatment undergone, awarding compensation of Rs.30,000/- on the head of food, nourishment, attendant charges and conveyance meets the ends of justice. Claimant has lost his right leg below knee, thereby he has suffered loss of amenities. Therefore, reasonable compensation on the said head can be assessed at Rs.1,00,000/-. PW.2 deposed that the claimant needs below knee prosthesis to walk and that may require periodic replacement due to wear and tear. Therefore, awarding compensation of Rs.50,000/- on the head of future medical expenses is just and proper. Hence, the just compensation payable is as follows:

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Particulars	Amount (Rs.)
Loss of future earning	19,50,000/-
Loss of income during laid up	75,000/-
period
Pain and suffering	1,25,000/-
Medical expenses	94,703/-
Food, nourishment, attendance	30,000/-
charges and conveyance
during the hospitalization
Loss of amenities	1,00,000/-
Future medical expenses	50,000/-
Total	24,24,703/-
Awarded by Tribunal	19,04,703/-
Enhanced compensation	5,20,000/-

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For the aforesaid reasons, both appeals deserve to be allowed in part. Hence, the following:

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ORDER

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i. MFA No.6175/2021 and MFA No.4850/2020 are partly allowed.

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ii. The impugned award is modified as follows:

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a) The claimant is entitled to compensation of Rs.24,24,703/- with interest thereon at 6% p.a. from the date of petition till its realization.

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b) Respondent No.2 - insurer shall deposit the said amount before the Tribunal, on adjusting amount

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already deposited, if any, within four weeks from the

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date of receipt of copy of this order.

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c) The order of the Tribunal with regard to release of

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the amount and investment is maintained.

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d) Registry shall transmit the amount in deposit, if

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any, and TCRs to the Tribunal forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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PKN

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List No.: 1 Sl No.: 41

P B Nagaraj @ Pujara Nagaraja v. the Partner

Case brief

What is this about?

What did the court decide?

P B Nagaraj @ Pujara Nagaraja v. the Partner

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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