Legal Manager Vs Vinaya Kumar

LEGAL MANAGER SHRIRAM GENERAL INS CO LTD E-8 EPIP, RIICO INDUSTRIAL AREA, SITAPURA JAIPURA RAJASTHAN, NOW REP BY THE LEGAL MANAGER SHRIRAM GENERAL INS CO LTD NO 5/4, 3RD FLOOR, S V ARCADE, BELEKALHALLI MAIN ROAD, OPP BANNERGHATTA ROAD, LIMB POST, BANGALORE - 76

¶15

…APPELLANT

¶16

(BY SRI. PRADEEP B, ADVOCATE)

¶17

AND:

¶18

VINAYA KUMAR

¶19

S/O RAJU ACHARI AGED ABOUT 25 YEARS R/O HULIDEVARA BANA VILLAGE SAGAR TALUK SHIVAMOGGA DISTRICT 577453

¶20

2 -

¶21

NC: 2025:KHC:952-DB MFA No. 5681/2018 C/W MFA No. 6247/2018

¶22

MANJUNATH M NAIK S/O MALLA NAIK AGED ABOUT 37 YEARS R/O KADAVINAKATTA VENKATAPURA BHATKAL

¶23

SACHIN KUMAR S S/O LATE B SHIVANANDA R/O H. NO 3-21/127, MANASA NILAYA, BATTARABETTU

¶24

ALAPE PADIL MANGALORE D K 574118

¶25

…RESPONDENTS

¶26

(BY SRI. NAGARAJA HEGDE, ADVOCATE FOR R1 R2 & R3 ARE SERVED)

¶27

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.05.2018 PASSED IN MVC NO.796/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA AND MEMBER, ADDITIONAL MACT, KUNDAPURA, AWARDING COMPENSATION OF RS.32,34,436/- WITH INTEREST AT 6% P.A. ON RS.25,69,036/- FROM THE DATE OF ACCIDENT TILL REALIZATION AND ETC.

¶28

IN MFA NO. 6247/2018

¶29

BETWEEN:

¶30

SRI. VINAYA KUMAR S/O RAJU ACHARI AGED ABOUT 25 YEARS R/O HULIDEVARA BANA VILLAGE SAGAR TALUK SHIVAMOGGA DISTRICT 577401

¶31

...APPELLANT

¶32

(BY SRI. NAGARAJA HEGDE, ADVOCATE)

¶33

AND:

¶34

3 - NC: 2025:KHC:952-DB MFA No. 5681/2018 C/W MFA No. 6247/2018

¶35

SRI. MANJUNATH M NAIK S/O MALLA NAIK, AGED ABOUT 37 YEARS R/O KADAVINAKATTA VENKATAPURA, BHATKAL 574211

¶36

SRI SACHIN KUMAR S S/O LATE B SHIVANANDA AGE MAJOR R/O H.NO.3-21/127, MANASA NILAYA, BATTARABETTU ALAPE, PADIL 575007 MANGALORE, D.K

¶37

SRI RAM GENERAL INSURANCE CO LTD BRANCH OFFICE, E-8, EPIP, RIICO INDUSTRIAL AREA, SITAPURA, JAIPURA RAJASTHAN 302022 REP BY ITS BRANCH MANAGER

¶38

...RESPONDENTS

¶39

(BY SRI.B PRADEEP., ADVOCATE FOR R3 R1 & R2 ARE SERVED)

¶40

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.05.2018 PASSED IN MVC NO.796/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, ADDITIONAL MACT, KUNDAPURA, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

¶41

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

¶42

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

¶43

HON'BLE MR JUSTICE C.M. POONACHA

¶44

4 - NC: 2025:KHC:952-DB MFA No. 5681/2018 C/W MFA No. 6247/2018

¶45

COMMON ORAL JUDGMENT

¶46

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

¶47

“Whether the compensation awarded to the claimant under the impugned award in MVC No.796/2016 on the file of Senior Civil Judge and Addl. MACT., Kundapura is just one ?” is the question in this case.

¶48

MFA No.6247/2018 is filed by the claimant seeking enhancement of compensation and MFA No.5681/2018 is filed by the Insurance Company seeking reduction of compensation. Appellant in MFA No.6247/2018 was the claimant and the respondents were the respondents No.1 to 3 before the Tribunal.

¶49

For the purpose of convenience, the parties are referred henceforth according to their ranking before the Tribunal.

¶50

On 21.12.2015, at 8.30 p.m. when the claimant was riding his motorcycle bearing No.KA-05-HA-8340 near Navunda Petrol Pump, Navunda Village, Kundapura Taluk, car bearing registration No.KA-19-D-5213 hit him. In the accident, the claimant suffered grievous injuries. He was treated as inpatient in Kasturba (KMC) Hospital, Manipal between 21.12.2015 and

¶51

5 - NC: 2025:KHC:952-DB MFA No. 5681/2018 C/W MFA No. 6247/2018

¶52

05.01.2016 and between 19.09.2016 and 29.09.2016. His left leg above the knee was amputated. Respondent Nos.1, 2 and 3 were the driver, registered owner and insurer of car bearing No.KA-19-D-5213.

¶53

The claimant filed MVC No.796/2016 against the respondents claiming compensation of `60 lakhs alleging that the accident and consequential injuries to him occurred solely due to the actionable negligence on the part of respondent No.1 in driving the car. He further claimed that due to accidental injuries and amputation of left leg above the knee, he has suffered permanent physical disability. He was working as a driver and is not able to continue the same, thereby there is loss of future earning. He claimed that he suffered lot of pain and loss of amenities etc., and respondents are liable to compensate the damages.

¶54

Respondent Nos.1 and 2 did not contest the petition. Respondent No.3 alone contested the petition denying all the contentions of the claimant and sought dismissal of the petition.

¶55

6 - NC: 2025:KHC:952-DB MFA No. 5681/2018 C/W MFA No. 6247/2018

¶56

Before the Tribunal, the claimant got himself examined as PW.1 and the doctor who treated him as PW.2. On behalf of the claimant Exs.P1 to P69 were marked. No evidence was adduced on behalf of respondents.

¶57

The Tribunal on hearing the parties, by the impugned award held that the accident and consequential injuries to the claimant occurred solely due to the actionable negligence on the part of respondent No.1 in driving the car bearing No.KA19-D-5213. Though PW.2 - Doctor assessed the claimants functional disability at 85%, the Tribunal considered the same at 100%. The Tribunal notionally assessed the income of the claimant at 10,000/- per month, considering the age of the claimant as 23 years applied multiplier of ‘18’ and awarded compensation of 21,60,000/- under the head of loss of future income. Tribunal in all awarded, compensation of `32,34,436/-

¶58

on different heads as follows:

¶59

Sl.No.	Heads	Amount awarded by the Tribunal (`)
1.	Future Loss of income	21,60,000/-
	(`10,000/- x 12 x 18)
2.	Pain and suffering	75,000/-
3.	Hospital and Medical Expenses	1,59,036/-

¶60

7 - NC: 2025:KHC:952-DB MFA No. 5681/2018 C/W MFA No. 6247/2018

¶61

4.	Loss of Amenities	75,000/-
5.	Food, attendant charges and transportation charges	1,00,000/-
6.	Future Medical treatment	6,65,400/-
	Total	32,34,436/-

¶62

Challenging the said award, the insurer has preferred MFA No.5681/2018 and the claimant has preferred MFA No.6247/2018.

¶63

Sri B. Pradeep, learned counsel for the insurer submits that the evidence of PW.2 itself shows that the claimant has suffered 85% disability to the left lower limb and he was fixed with an artificial limb. Therefore, there was no functional disability of 100%. He submits that the notional income considered by the Tribunal is on the higher side and the compensation awarded on the other heads are also on the higher side. Therefore, he seeks reduction of the compensation awarded.

¶64

Per contra, Sri Nagaraja Hegde, learned counsel appearing for the claimant submits that as per the evidence of PW.2, fixation of artificial limb would not have restored the functional ability of the claimant. He submits that as the

¶65

8 - NC: 2025:KHC:952-DB MFA No. 5681/2018 C/W MFA No. 6247/2018

¶66

claimant was the driver of the tipper lorry, the notional income considered by the Tribunal is on the lower side. He further submits that the Tribunal ought to have awarded future prospects on the income of the claimant. He submits that the compensation awarded on other heads is also on the lower side and no compensation is awarded on the head of marriage prospects.

¶67

ANALYSIS:

¶68

The parties have not disputed the occurrence of accident

¶69

in question due to the actionable negligence on the part of respondent No.1 in driving car bearing No.KA-19-D-5213. It is also not disputed that at the time of the accident, the claimant was aged 23 years and working as a driver of the lorry, he was treated as in patient between 21.12.2015 and 05.01.2016 and 19.09.2016 and 29.09.2016 totally for a period of 25 days in KMC Hospital, Manipal. It is not disputed that due to the injuries suffered in the accident, left leg of claimant above the knee was amputated and he was fixed with an artificial limb. The evidence of PW.2 shows that even after such fixation of artificial limb, the functional ability of the claimant was not

¶70

9 - NC: 2025:KHC:952-DB MFA No. 5681/2018 C/W MFA No. 6247/2018

¶71

restored. He denied that after fixation of the artificial limb, the claimant would be able to drive the lorry/vehicle. Therefore, the Tribunal was justified in considering that there is 100% functional disability to the claimant.

¶72

Though the claimant in his petition contended that he was working as a driver of tipper lorry on payment of 20,000/per month, he did not choose to examine his employer to prove the same. Considering the cost of living and wage rates during the relevant time, income of 10,000/- considered by the Tribunal notionally is slightly on the higher side. The just and reasonable notional wage for the said period is 9,000/- per month. As the claimant suffered 100% functional disability and having regard to his age and employment, 40% has to be superadded by way of future prospects and applicable multiplier is ‘18’. Therefore, the just compensation payable under the head of loss of future earning is 9,000/- +3,600/(40%) = 12,600/-x12x18 = 27,21,600/-.

¶73

Having regard to the nature of injuries suffered by the claimant, the compensation awarded by the Tribunal on the head of pain and suffering is on the lower side. Awarding

¶74

10 - NC: 2025:KHC:952-DB MFA No. 5681/2018 C/W MFA No. 6247/2018

¶75

compensation of `1,00,000/- on the head of pain and suffering would be just and proper.

¶76

Medical expenses of `1,59,036/- was considered based

¶77

on the medical records and that has to be rounded off to `1,60,000/-.

¶78

Tribunal has awarded 75,000/- on the head of loss of amenities. Learned counsel for the claimant relying on the judgment of the Hon’ble Supreme Court in the case of **_Jakir Hussein Vs. Sabir and Others_**<sup>1</sup> submits that the compensation on the head of loss of amenities ought to have been awarded at 1,50,000/-. Considering the evidence of PW.2 and other material on record, it would be just to award compensation of 1,00,000/- on the head of loss of amenities. 17. The Hon’ble Supreme Court in the case of **_Kajal Vs. Jagadish Chand and others_**<sup>2</sup> awarded compensation of 3,00,000/- on the head of ‘loss of marriage prospects’. The Tribunal has not awarded any compensation on the head of ‘loss of marriage prospects’. Therefore, it would be just to award sum of `3,00,000/- on the head of ‘loss of marriage prospects’.

¶79

1 (2015) 7 SCC 252

¶80

2 (2020) 4 SCC 413

¶81

11 -

¶82

NC: 2025:KHC:952-DB MFA No. 5681/2018 C/W MFA No. 6247/2018

¶83

The compensation awarded under the head food, nourishment and attendant charges is just and needs to be maintained.

¶84

Future medical expenses of `6,65,400/- is based on the

¶85

evidence of PW.1. That also needs to be retained. For the aforesaid reasons, the just compensation payable is as follows:

¶86

Sl. No	Heads	Amount awarded by this Court(`)
1.	Future Loss of income	27,21,600/-
2.	Pain & suffering	1,00,000/-
3.	Hospital and Medical Expenses	1,60,000/-
4.	Loss of Amenities	1,00,000/-
5.	Food, attendant charges and transportation charges	1,00,000/-
6.	Future Medical treatment	6,65,400/-
7.	Loss of marriage prospects	3,00,000/-
	Total	41,47,000/-
	Less: Awarded by Tribunal	32,34,436/-
	Enhanced compensation	9,12,564/-

¶87

12 -

¶88

NC: 2025:KHC:952-DB MFA No. 5681/2018 C/W MFA No. 6247/2018

¶89

The claimants are entitled to enhanced compensation of ( 41,47,000 – 32,34,436/-) `9,12,564/- with interest @ 6% per annum. Hence the following:

¶90

ORDER

¶91

a) MFA No.5681/2018 filed by the insurer is dismissed. b) MFA No.6247/2018 filed by the claimant is partly

¶92

allowed.

¶93

c) The impugned judgment and award dated

¶94

26.5.2018 passed by Senior Civil Judge and Additional MACT., Kundapura in MVC No.796/2016 is modified as follows:

¶95

i. The claimant in MVC No.796/2016 is entitled to enhanced compensation of ` 9,12,564/- with interest thereon at 6% p.a. from the date of petition till its realization;

¶96

ii. Respondent No.3 - insurer shall deposit the enhanced compensation before the Tribunal on adjusting amount already deposited, if any, within four weeks from the date of receipt of copy of this judgment;

¶97

iii. On such deposit, the Tribunal shall digitally release 60% of the deposited amount to the claimant and invest the balance amount in any

¶98