Partly allowed

Murthy @ Narasimhamurthy v. Nelson Allexander D

Karnataka HC13 Dec 2024MFA/8654/2019

Case brief

AI extract

What is this about?

The High Court allowed the Motor Accidents Appeal in part, enhancing the compensation awarded to the claimant by 1,52,200/- by correcting the disability percentage and recalculating future earning loss and laid-up period income.

What did the court decide?

Enhanced compensation of Rs.1,52,200/- with interest at 6% per annum granted to the claimant.

Murthy @ Narasimhamurthy Vs Nelson Allexander D — Medical Negligence | Karnataka HC (2024)

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NC: 2024:KHC:51493-DB MFA No.8654/2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF DECEMBER, 2024

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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.8654/2019 (MV-I)

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BETWEEN:

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MURTHY @ NARASIMHAMURTHY S/O. GIDDAPPA AGED ABOUT 49 YEARS R/AT NO.9, YAPALAHALLI VILLAGE POSETTIHALLI POST - 561 211 NANDI HOBLI CHIKKABALLAPURA TALUK & DISTRICT …APPELLANT

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(BY SRI D.NAGARAJA REDDY, 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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NELSON ALLEXANDER D S/O. DOMINIC AMLA DAS S MAJOR R/AT LAKSHMIPURA MANCHENAHALLI VILLAGE & POST GOWRIBIDANUR TALUK CHIKKABALLAPURA DISTRICT - 561 208

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VINAY KUMAR. G. S. MAJOR

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R/AT NO.183, 23^RD CROSS 6^TH MAIN, JAYANAGAR BENGALURU - 560 011

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M/S. UNITED INDIA INSURANCE CO. LTD. REGIONAL OFFICE, T.P. HUB REP. BY ITS MANAGER 5^TH AND 6^TH FLOORS, KRISHI BHAVAN HUDSON CIRCLE OPP. TO BBMP HEAD QUARTER

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NC: 2024:KHC:51493-DB MFA No.8654/2019

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NRUPATHUNGA ROAD

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BENGALURU - 560 001 …RESPONDENTS

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(BY SRI Y.P.VENKATAPATHI, ADVOCATE FOR R3; NOTICE TO R2 DISPENSED WITH V/O DATED 04.07.2024; NOTICE TO R1 HELD SUFFICIENT V/D DATED 20.08.2024)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD DATED 26.07.2019 PASSED IN MVC NO.1632/2018 ON THE FILE OF THE XIV ADDITIONAL SMALL CAUSES JUDGE AND XXXIX ACMM AND MEMBER, MACT, BENGALURU (SCCH-10) PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION.

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THIS MISCELLANEOUS FIRST 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 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 adequacy of compensation awarded to him,

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the claimant in M.V.C.No.1632/2018 on the file of III Additional Senior Civil Judge and MACT, Bengaluru (SCCH-10) has preferred this appeal.

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Appellant was the claimant and the respondents were the respondents No. 1 to 3 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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NC: 2024:KHC:51493-DB MFA No.8654/2019

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On 12.03.2018 at 2.45 p.m. when the claimant was travelling on his motorcycle bearing Registration No.KA-53-V4232 near Bayalu Basaveshwara Temple within the limits of Manchenahalli police station, Gowribidanur Taluk, Chikkaballapura District, car bearing Registration No.KA-53-MA9663 hit the claimant’s vehicle. In the accident, claimant suffered grievous injuries. At the relevant time, respondent Nos.1 and 2 were the registered owner and insured of the said vehicle and respondent No.3 was the insurer of the said vehicle.

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Claimant filed M.V.C.No.1632/2018 before the Tribunal against the respondents claiming compensation of Rs.25,00,000/- alleging that the accident and consequent injuries occurred solely due to actionable negligence on the part of the driver of the car bearing Registration No.KA-53-MA-9663. He further contended that due to such injuries, he has suffered permanent physical disability. He was working as agriculturist and coconut vendor. Due to the injuries he was not able to carry on his avocation. He claimed that he spent huge amount on medical expenses. Therefore the respondents are liable to pay compensation of Rs.25,00,000/-.

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NC: 2024:KHC:51493-DB MFA No.8654/2019

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Respondent Nos.1 and 2 did not contest the petition. Respondent No.3 alone contested the petition denying occurrence of accident due to actionable negligence on the part of the driver of the car. Respondent No.3 further denied age, occupation, income, injuries suffered by the claimant, his permanent physical disability and its liability to pay the compensation.

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In support of the claim petition, claimant examined himself as PW.1 and other two witnesses as PWs.2 and 3. On his behalf, Exs.P1 to P20 were marked. Respondent No.3 neither lead any oral evidence nor got marked any documents.

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The Tribunal on hearing the parties by the impugned judgment and award held that the accident occurred due to actionable negligence on the part of the driver of the car. The Tribunal on evaluating the evidence of PW.3/the doctor and other materials on record considered permanent physical disability of the claimant to the whole body at 15%, notionally assessed his monthly income at Rs.7,000/-, age at 50 years, applied 13 multiplier and awarded compensation of Rs.1,63,800/- on the head of loss of future earnings. The

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NC: 2024:KHC:51493-DB MFA No.8654/2019

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Tribunal in all awarded compensation of Rs.5,53,236/- on

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different heads as per the table below:

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Sl. No.	Particulars	Compensation amount in Rs.
1	Pain and Suffering	60,000/-
2	Loss of amenities & happiness	40,000/-
3	Attendant, nourishment and conveyance charges	20,000/-
4	Medical expenses	2,15,436/-
5	Loss ofearning capacity	1,63,800/-
6	Future medical expenses	40,000/-
7	Loss of income during treatment period and rest period	14,000/-
	Total	5,53,236/-

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The Tribunal awarded interest at 9% per annum on

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the compensation awarded. Claimant has challenged the adequacy of compensation awarded to him.

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Sri D.Nagaraja Reddy, learned Counsel for the claimant submits that the Tribunal without assigning any justifiable reason has reduced permanent physical disability from 31% to 15% which is erroneous. He further submits that the notional income assessed by the Tribunal is unjustifiable and the compensation awarded on other heads is also on the lower side.

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Sri Y.P.Venkatapathi, learned Counsel for respondent No.3/Insurer justifies the impugned award on the ground that PW.3 was not the doctor who treated the claimant

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6 - NC: 2024:KHC:51493-DB MFA No.8654/2019

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and there was no evidence to justify functional disability of the claimant at 31%. He submits that the compensation awarded on other heads is also just one.

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Considering the submissions of both side and the material on record, the question that arises for consideration is “Whether the compensation awarded to the claimant by the Tribunal is just one?”

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Analysis

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None of the respondents have challenged the findings of the Tribunal that the accident in question occurred due to actionable negligence on the part of the driver of the car bearing No.KA-53-MA-9663. They have also not disputed the age of the claimant or the finding of the Tribunal regarding his avocation.

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PW.3 admittedly is not the doctor who treated the claimant. The evidence on record shows that soon after the accident, the claimant was first taken to Primary Health Centre, Manchenahalli, Gowribidanur Taluk, Chikkaballapur District. As per the wound certificate/Ex.P7, he had suffered the following injuries:

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(i) fracture – right tibia and fibula (ii) fracture- left tibia.

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Both the injuries were certified as grievous injuries.

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NC: 2024:KHC:51493-DB MFA No.8654/2019

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The claimant was later treated in Navachethana Hospital, Bangalore between 12.03.2018 to 16.03.2018 as inpatient. However, the doctor who treated the claimant in the said hospital was not examined. No acceptable reasons were assigned for such non-examination. As per Ex.P9 the discharge summary issued by Navachethana Hospital, the claimant underwent following procedure:

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(i) Closed interlock nailing with interlocking screws for right leg fracture;

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(ii) ORIF with condylar locking plate and screws for left leg under S.A. and Epidural anesthesia on 12.03.2018.

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The finding in Ex.P9 the discharge summary

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regarding his condition at the time of discharge states that he was hemodynamically stable and his vitals were stable. PW.3 in his chief examination itself states that he examined the claimant on 31.03.2019, (after more than one year of the date of the accident) for assessment of disability. PW.3 in his crossexamination admits that he has not produced radiological report with regard to Ex.P20. He further admits that as per Ex.P20/ X-ray, the fracture of the claimant was united. Considering the aforesaid facts and circumstances, the Tribunal was justified in assessing permanent physical disability at 15% to the whole body.

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NC: 2024:KHC:51493-DB MFA No.8654/2019

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At the time of the accident, the claimant was aged 50 years. Considering the age, income, avocation, prevailing wage rates and cost of living during the relevant period, the Tribunal ought to have considered his notional income at Rs.12,500/- per month instead of Rs.7,000/- p.m. The applicable multiplier is 13. Therefore loss of future earnings of the claimant comes to Rs.12,500/- x 12 x 13 x 15% = Rs.2,92,500/-.

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The compensation awarded on the heads of pain and suffering, attendant charges, nourishment and conveyance charges, loss of amenities, future medical expenses is just one. The medical expenses were awarded on the basis of the documents produced by the claimant. Therefore that also has to be maintained.

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Considering the nature of the injuries and the medical records produced, the Tribunal was in error in considering his income for the laid up period for only two months. At least, for three months the claimant could not have been able to attend to his duties. Thus the compensation payable on the head of loss of income during laid up period is

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NC: 2024:KHC:51493-DB MFA No.8654/2019

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Rs.12,500/- x 3= Rs.37,500/-. Therefore the just compensation

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payable is as follows:

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Sl. No.	Particulars	Compensation amount in Rs.
1	Pain and suffering	60,000/-
2	Attendant, nourishment, diet and conveyance charges	20,000/-
3	Loss of amenities	40,000/-
4	Medical expenses	2,15,436/-
5	Future medical expenses	40,000/-
6	Loss of income during laid up period	37,500/-
7	Loss of future earnings	2,92,500/-
	Total	7,05,436/-
	Less awarded by the Tribunal	5,53,236/-
	Enhanced compensation	1,52,200/-

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For the aforesaid reasons, the 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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ii. The claimant is entitled to enhanced compensation

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of Rs.1,52,200/- with interest thereon at 6% per annum from the date of the petition till its realization.

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iii. Respondent No.3/Insurer shall deposit the enhanced compensation after adjusting the amount already deposited, if any, before the Tribunal within four weeks from the date of receipt of copy of this order.

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iv. On such deposit, the Tribunal shall digitally release the amount to the claimant.

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10 -

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NC: 2024:KHC:51493-DB MFA No.8654/2019

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v. Registry shall transmit the trial Court records to the

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Tribunal forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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KSR List No.: 1 Sl No.: 42

Murthy @ Narasimhamurthy v. Nelson Allexander D

Case brief

What is this about?

What did the court decide?

Murthy @ Narasimhamurthy v. Nelson Allexander D

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Parties & counsel

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