K C Nithyananda Vs K O Naveen

K C NITHYANANDA S/O CHOWDESHWARA SHETTY AGED ABOUT 40 YEARS BUSINESSMAN AND AGRICULTURIST R/O MARUTHI COMPLEX, OPP: WATER TANK BYPASS ROAD, KALYANAGAR CHIKMAGALUR 577101

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…APPELLANT

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(BY SRI. SHIVASHANKAR S K, 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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K O NAVEEN

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S/O ONKARAPPA

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AGED ABOUT 24 YEARS R/O KARTHIKEE VILLAGE & POST CHIKMAGALUR TALUK 577101

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RIDER OF MOTOR

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CYCLE NO KA 18-Q-9039

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S NAGARAJA S/O SHASHIDHAR SINDHAGI PARTNER, RELIABLE AGRO TRADING SGS COMPLEX, K M ROAD CHICKMAGALUR 577101 OWNER OF MOTORCYCLE NO KA-18-Q-9039

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THE BRANCH MANAGER

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UNITED INDIA INS. CO LTD

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CRESCENT COURT

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K ROAD, CHICKMAGALUR 577101

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…RESPONDENTS

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(BY SRI. MOHAN K.N, ADVOCATE FOR

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SRI. S VISHWESHWARAIAIH., ADVOCATE FOR R1 & R2 SRI. RAVISH BENNI, ADVOCATE FOR R3)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 2.4.2014 PASSED IN MVC NO.564/2011 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, MEMBER, MACT, CHIKMAGALUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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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 MRS JUSTICE K.S.MUDAGAL and

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HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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

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“Whether the compensation awarded to the

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appellant/claimant under the impugned award is just and proper?” is the question involved in this case.

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The appellant was the petitioner and the respondents in this appeal were the respondents in MVC No.564/2011 on the file of the I Additional District Judge and MACT, Chikkamagaluru (for short the ‘Tribunal’). For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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On 25.5.2011 at about 11.30 a.m., when the claimant was proceeding on motor cycle bearing No.KA18/K.6500 near Chikkamagaluru Coffee Curing Works, respondent No.1 who was riding the motor cycle bearing No.KA-18/Q.9039 hit the claimant’s bike. In the accident, the claimant suffered injuries. He was shifted to Holy Cross Hospital, Chikkamagaluru. After initial treatment, he was shifted to Nanjappa Hospital, Shivamogga. At the relevant time, respondent Nos.2 and 3 were the registered owner and insurer of motor cycle bearing No.KA-18/Q.9039.

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The claimant filed MVC No.564/2011 against the respondents alleging that due to the accidental injuries, he has suffered permanent physical disability and loss of future earnings. He further contended that the accident and the consequential injuries occurred, solely due to the actionable negligence on the part of respondent No.1 in riding the motor cycle bearing No.KA-18/Q.9039. The claimant contended that he had spent huge amount towards medical expenses and he has lost lot of amenities etc., therefore, the respondents are liable to pay a compensation of `30.00 lakhs.

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Respondent Nos.2 and 3 filed their statement of

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objections and contested the claim proceedings denying the occurrence of the accident due to the actionable negligence on the part of respondent No.1. They further denied the age of the claimant, avocation, income and permanent physical disability suffered by him and sought for dismissal of the claim petition. Respondent No.1 adopted the objections of respondent No.2.

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Before the Tribunal, the claimant was examined as PW.1 and his wife was examined as PW.3. The doctor, who treated the claimant was examined as PW.2. On behalf of the claimant, Exs.P1 to P169 and Exs.C1 to C7 were marked. The respondents did not lead any oral evidence. However, the driving licence of respondent No.1 and the insurance policy of motor cycle bearing No.KA-18/Q.9039 were marked as Exs.R1 and R2 respectively.

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The Tribunal on hearing the parties and examining the evidence, by the impugned award held that the accident occurred due to the actionable negligence on the part of respondent No.1 in riding the motor cycle bearing No.KA18/Q.9039. The Tribunal assessed the permanent disability of

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the claimant at 15%, considered his income at 19,000/- pm., applied 15 multiplier and awarded compensation of 5,13,000/under the head of loss of future income. The Tribunal, in all awarded compensation of `7,61,000/- under different heads as follows:

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Sl. No	Particulars	Amount in (`)
1	Pain and Agony	40,000.00
2	Medical expenses, special diet, attendant charges and conveyance	1,70,000.00
3	Future loss of income on account of loss of earning capacity	5,13,000.00
4	Loss of income during laid up period	38,000.00
	Total	7,61,000.00

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The claimant has challenged the said award on the ground that the permanent physical disability assessed by the Tribunal is contrary to the evidence on record and compensation awarded on the other heads is also on the lower side.

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Reiterating the grounds of appeal Sri Shivashankar S.K, learned counsel for the appellant referring to the evidence on record seeks reassessment of the compensation. Whereas,

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Sri Ravish Benni, learned counsel for respondent No.3 and Sri Mohan K.N, Sri S.Visweswaraiah, learned counsel for respondent No.2 justify the impugned award.

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Analysis

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The respondents have not challenged the finding of the Tribunal that due to the actionable negligence on the part of respondent No.1 in riding the motor cycle bearing No.KA18/Q.9039 the accident occurred and the claimant suffered injuries as deposed by PW.2/doctor. The insurer has also not disputed its liability to pay the compensation by virtue of the contractual liability under Ex.R2. Therefore, the only question is whether the compensation awarded is just and proper.

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As per Ex.P105- driving licence, the date of birth of

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the claimant is 15.11.1974. Therefore, as on the date of the accident i.e., 25.5.2011, he had completed 36 years of age. It was also not disputed that the claimant was initially treated in Holy Cross Hospital, Chikkamagaluru and after preliminary treatment, he was shifted to Nanjappa Hospital, Shivamogga. The evidence of PW.2 and Ex.C1 – wound certificate available on record show that the claimant had suffered the following injuries:

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“1) A lacerated wound over the occipital region;

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2) Right ear bleeding;

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3) CT scan – Brain – Plain – dt. 25.5.2011 – impressions:

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i) Acute Extra Axial Hematoma (EDH) in Right Temporo – parietal convexity;

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ii) Acute Extra Axial Hematoma (SDH) in left Fronto – Temporal Regions;

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iii) Hemorrhagic Contusions in left Frontal and Temporal Lobes;

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iv) Acute Subarachnoid Hemorrhage in left Cerebral Hemisphere;

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v) 4 MM Mid Line Shift towards right side;

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vi) Fractures of Squamous and Mastoid parts of right Temporal bone;

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vii) Undisplaced fracture of right parietal bone.

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4) Mild (R) Hemiparesis

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5) Mild memory deficits

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6) urinary incontinence

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7) claudication difficulty”

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It was opined that injury No.1 was simple in nature and injury Nos.2 to 7 being internal injuries, were grievous in nature.

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The claimant was treated as an inpatient in Nanjappa Hospital between 25.5.2011 and 6.6.2011. The evidence of PW.2 further shows that during that time, the

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claimant was surgically operated to stop bleeding in the brain and he was on artificial respiratory support. PW.2 deposed that the claimant was on follow up treatment in Nanjappa Hospital and examined on the following dates:

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12.6.2011, 27.6.2011, 25.7.2011, 6.9.2012, 6.9.2013

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31.12.2011 and 15.3.2013.

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PW.2 further deposed that the claimant was complaining of head ache, loss of memory, mental stress, impairment of cognitive power, hence, he was sent to Psychiatrist. The Psychiatrist assessed the disability at 47%. PW.2 further deposed that on 6.4.2013 he examined the claimant and found him suffering with 50% permanent physical disability to the whole body. The Tribunal reduced the same to 15% saying that 50% disability is not assessed by PW.2 and

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that he relied on the assessment made by the Psychiatrist. Such reading of the evidence by the Tribunal is erroneous. PW.2 clearly stated that he examined the claimant on 6.4.2013 and assessed the disability at 50%. In the cross-examination of PW.2, his competence to assess the disability was not at all questioned. He denied the suggestion that 50% disability does not relate to the whole body. Under the circumstances, the

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Tribunal was not justified in reducing the permanent physical disability to 15%.

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The claimant contended that he was carrying on poultry farming business and agriculture and earning 30,000/pm. To prove his income, he relied on the income tax returns – Exs.P102 to 104. Out of them, Exs.P103 and 104 were submitted subsequent to the accident. Therefore, it is safe to rely on Ex.P102, which was submitted prior to the accident. As per the said income tax returns acknowledgement for the assessment year 2010-11, the gross income of the claimant was 2,19,735/-. Out of that, the tax assessed was 9,288/-. Therefore, his annual income would be (2,19,735-9,288/- =) 2,10,447/-. The applicable multiplier is 15. Therefore, loss of future earning would be 2,10,447/x15x50/100=15,78,352.50/- rounded off to `15,78,360/-.

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Having regard to the nature of injuries and the other evidence on record, the compensation awarded under the heads of pain and agony, attendant charges, diet and travel expenses need to be enhanced. Awarding a compensation of 75,000/- under the head of pain and suffering and 25,000/-

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under the head of attendant charges, diet and travel expenses would meet the ends of justice.

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The Tribunal awarded 1,56,300/- under the head of medical expenses by rejecting certain bills. However, having regard to the nature of injuries, treatment and period of hospitalization, awarding 1,60,000/- under the head of medical expenses would meet the ends of justice.

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The Tribunal has not awarded any compensation under the head of loss of amenities. Considering the nature of injuries and the evidence on record, it would be just and proper to award `50,000/- under the head of loss of amenities.

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Considering the medical evidence on record and the nature of employment of the claimant, it is clear that the claimant would not have attended his work at least for three months. Therefore, three months income has to be considered for loss of income for laid up period, which comes to 52,600/-, rounded off to 50,000/-.

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Therefore, the just compensation payable is as follows:

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Sl.	Head of compensation	Amount in
No.		(` )
1	Loss of future earnings	15,78,360.00
2	Medical expenses	1,60,000.00
3	Pain and suffering	75,000.00
4	Attendant charges, diet and travel expenses	25,000.00
5	Loss of income during laid up period	50,000.00
6	Loss of amenities	50,000.00
	Total	19,38,360.00
	Awarded byTribunal	7,61,000.00
	Enhancement	11,77,360.00

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Accordingly, the appellant/claimant is entitled to enhanced compensation of `11,77,360/-. The enhanced compensation shall carry interest at 6% pa., and the appeal deserves to be allowed in part.

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Hence, the following:

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ORDER

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i) The appeal is partly allowed;

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ii) The appellant/claimant is entitled to enhanced compensation of `11,77,360/- with interest at 6% pa., from the date of petition till its realization;

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