Mr. Chandrakanth Pai Vs Smt. Shakunthala

MR. CHANDRAKANTH PAI S/O LATE SHANTHARAM PAI AGED ABOUT 43 YEARS REP BY HIS WIFE SMT SUMANGALA PAI R/O DAMODAR NIVAS, KODI ROAD OPP: MANGAL STORE, HANGLUR KUNDAPURA TALUK UDUPI DISTRICT-576201

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...APPELLANT

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(BY SRI. MAHESH KIRAN SHETTY, ADVOCATE)

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AND

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Digitally signed by NIRMALA DEVI

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Location: HIGH COURT OF KARNATAKA

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1 . SMT. SHAKUNTHALA W/O VIDYANANDA S SUVARNA AGED ABOUT 28 YEARS R/O THENKA NIDYURU VILLAGE KODAVURU UDUPI-576201

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2 . THE NEW INDIA INSURANCE CO LTD BRANCH OFFICE: IIND FLOOR, SRI RA, ARCADE UDUPI-576201

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…RESPONDENTS

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(BY SRI. C.R. RAVISHANKAR, ADVOCATE FOR R2 NOTICE TO R1 IS DISPENSED WITH V/O DTD 7.1.2025)

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NC: 2025:KHC:5386-DB MFA No. 6536/2013

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.07.2012, PASSED IN MVC NO.594/2008 ON THE FILE OF THE RESIDING OFFICER, FAST TRACK COURT, MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 23.01.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, POONACHA. J., DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL and HON'BLE MR JUSTICE C.M. POONACHA

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CAV JUDGMENT

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(PER: HON'BLE MR JUSTICE C.M. POONACHA)

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The present appeal is filed by the claimant challenging the judgment and award dated 28.07.2012 passed in MVC.No.594/2008 by the Fast Track and Motor Vehicle Accidents Claims Tribunal, Kundapura¹ , seeking for enhancement of quantum of compensation.

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Parties are referred to as per their ranks before the Tribunal for the sake of convenience.

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The relevant facts leading to the present appeal are that the claimant filed claim petition in MVC No.594/2008 against respondent Nos.1 and 2 contending, inter-alia, that on

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1 Hereinafter referred as to ‘Tribunal’

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19.02.2007 when he was proceeding from Kundapura towards Udupi along with his family members by driving Maruthi car bearing No. KA-20-A-4523, Mahindra tempo bearing No. KA-20A-7219 came in a rash and negligent manner from the opposite side and hit the Maruthi car being driven by the claimant causing the accident in question, as a result of which, he sustained grievous injuries. He claimed compensation for the injuries sustained in the said accident from respondent Nos.1 and 2, the owner and insurer of the Mahindra tempo.

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The claim petition was contested by respondent No.2/ insurer by filing statement of objections. Respondent No.1/ owner remained ex-parte before the Tribunal. The claimant examined himself as PW.1, a witness as PW.2 and two Doctors as PW.3 and PW.4. Ex.P.1 to Ex.P.1154 were marked in evidence. The respondents did not adduce any oral evidence. The policy of insurance is marked as Ex.R.1.

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The claimant claimed that he was a business man and owner of the Damodar Emission Testing Centre, Kundapura and earning `40,000/- per month. To prove his income, the claimant produced income tax returns as Exs.P.1143(A), 1144(A), 1145 and 1146. The Tribunal assessed the income of

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NC: 2025:KHC:5386-DB MFA No. 6536/2013

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the deceased as 1,00,000/- per year. The Tribunal has assessed the disability at 60% and awarded a total compensation of 29,50,000/- together with interest at 6% per annum on `28,50,000/- (by excluding the interest on future medical expenses). The Tribunal held the respondents jointly and severally liable to pay the compensation and directed respondent No.2 / insurer to pay the compensation. Being aggrieved the claimant has filed the above appeal seeking enhancement of compensation.

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The finding of the Tribunal on negligence and liability has attained finality and the only question that is being considered in the present appeal is, the adequacy of the quantum of compensation.

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Heard submissions of learned counsel Sri. Mahesh Kiran Shetty for the appellant and learned counsel Sri. C.R.Ravishankar for the respondent No.2 / insurer.

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It is the contention of the learned counsel for the appellant / claimant that having regard to the nature of injuries sustained and the medical evidence adduced, the Tribunal ought to have assessed a higher percentage of disability. It is further

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contended that income of 1,00,000/- per annum assessed by the Tribunal is on the lower side and having regard to the fact that the claimant has produced his income tax returns, the gross income of 2,16,338/- as per Ex.P.1141 ought to have been taken into consideration by the Tribunal. It is further contended that the compensation awarded on various other heads is inadequate and the same requires to be enhanced.

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Per contra , learned counsel for respondent No.2 / insurer vehemently opposed any enhancement and contends that the Tribunal has rightly awarded compensation on various heads and in fact awarded excess compensation on certain heads. Hence, learned counsel for respondent No.2/ insurer seeks for dismissal of the above appeal.

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The submissions of both the learned counsels have been considered and the material on record have been perused including records of the Tribunal.

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The question that arises for consideration is, “Whether the quantum of compensation awarded by the Tribunal requires to be enhanced?”

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The age of the claimant has been assessed as 38 years by the Tribunal which is just and proper and not under challenge.

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It is forthcoming from the wound certificate (Ex.P.4) issued by the Hitech Hospital, Udupi, that the claimant has sustained lacerated wound over the scalp and head injury. Both the said injuries are grievous in nature.

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The claimant has produced inpatient bill (Ex.P.6) from the Hitech Hospital, Udupi, wherein he was treated as an inpatient on 19.12.2012 for one day. Thereafter, the claimant has produced various discharge bills from Kasturba Hospital, Mangalore i.e., Exs.P.7 to 13, 1143 and 1151 as also inpatient bills from Adarsha Hospital, Udupi, as Exs.P.1147 and 1148. The said discharge bills indicate that the claimant was treated as an inpatient for a total period of 485 days. The Tribunal has noticed the medical bills produced as Exs.P.6 to 1139 and Exs.P.1147 to 1150 and assessed the medical expenses incurred as `13,47,711/-.

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The claimant has adduced the testimony of two Doctors PWs.2 and 3. Dr. Surendra Kamath (PW.3) an

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Orthopaedic surgeon has issued disability certificate on 31.03.2010 (Ex.P.1140), which discloses that there is shortening of right lower limb by 2.5 cm., stiffness of right hip, loss of flexion, abduction and rotation by 30%, wasting of right gluteal and thigh muscles and instability of right hip. It is further stated that the claimant has partial permanent disability of 20% of right lower limb function. PW.3 has also deposed that he has operated on the claimant three times for controlling infection, that the claimant requires hip replacement surgery and that said surgery was not performed since the clamant was not fit. PW.3 has been elaborately cross-examined and he has stated that as per the discharge summary there is slight improvement in sensorium in the form of fixing gaze of claimant. He has also been cross-examined about old dislocation of right limb. He has further stated that if hip replacement surgery is performed the percentage of disability may come down.

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Dr. Ravish Thunga is a Psychiatrist who has been examined as PW.4 and the disability certificates issued by him have been marked as Exs.P.1152 and 1152(A). PW.4 has deposed that the claimant has long standing deficits in behavioural and cognitive areas, because of which, he has got

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difficulty in taking care of his personal needs like daily activities on daily living. That the claimant has problem in interaction, gets irritated easily, shouting and screaming for no reason and he also has memory problem. That he has treated the claimant along with Dr. Murulidhar Pai at KMC. Hospital, Mangalore, as inpatient and in the outpatient department about eight times. He has deposed regarding the sequence of behaviour and cognitive deficits. The disability is assessed as 65%. PW.4 has been elaborately cross-examined and he has stated that for other consequences, due to head injury, neurosurgeon is competent to speak. PW.4 admits that the claimant has not lost memory power. That he has learnt that claimant was doing business earlier and is not doing business after the accident.

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The Neuro-Psychological report issued by Dr. Chandrakanth Pai has been marked as Ex.P.1153, wherein it is stated that the claimant has deficits in lobar function especially bilateral fronto-temporal deficits. That the tests of intellectual functioning, falls in the range of Mild Mental Retardation, that patient has gross personality changes, he has become non cooperative, does not communicate freely and is violent and

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temper tantrums. However, in the said report there has not been any assessment of disability.

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The claimant has not examined any neurologist to speak about the report - Ex.P.1153 and other aspects. The Tribunal has assessed the permanent disability at 60% to whole body.

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Having regard to the medical documents and testimony of PW.3 and PW.4, it is clear that in the disability certificate issued by PW.3 (Ex.P.1140) the partial permanent disability is mentioned as 20% to the right lower limb and in the disability certificate issued by PW.4 (Ex.P.1152) the disability is mentioned as 65%. It is clear that present case is not one of paraplegia and the functions of the lower body of the claimant have been affected apart from certain neurological functions as noticed above. Keeping in mind the totality of the facts and circumstances of the case, it is just and proper that the disability of the claimant be re-assessed as 65%.

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With regard to income of the claimant, the acknowledgement for having filed the income-tax return for the Assessment Year 2007-2008 has been marked as Ex.P1143(A).

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The basis of the said income-tax return containing the detailed statement of accounts has been marked as Exs.P1144(A), 1145 and 1146. The said exhibits disclose that the return has been filed on 26.12.2007 i.e., after the date of the accident. The said documents are of the claimant who has been described as the Proprietor of M/s Damodar Engineering Works. However, no other documents apart from Exs.P.1143(A), 1144(A), 1145 and 1146 have been produced to demonstrate that the claimant was carrying on business. No documents like statutory registrations like the one under the Karnataka Shops and Commercial Establishments Act, 1961, regarding the proprietorship concern of M/s Damodar Engineering Works to indicate the nature of business carried out by the said proprietorship concern have been produced. The documents produced cannot form the sole basis for the assessment of income as contended by the claimant. The Tribunal has, upon noticing various material on record assessed the annual income of claimant at `1,00,000/per annum. The appellant/ claimant has failed to demonstrate that the said assessment is in any manner erroneous and contrary to any specific material on record and required to be enhanced.

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Having regard to the aforementioned, the

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compensation is re-assessed as follows:

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i.The Tribunal, noticing the various injuries sustained by the claimant and the material on record has awarded compensation of `1,50,000/- towards pain and suffering which is just and proper.

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ii.The Tribunal has noticed the medical bills and recorded a finding that the claimant has produced total medical bills amounting to 13,47,711/-. Hence, it is just and proper that a sum of 13,50,000/- be awarded towards medical expenses.

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iii.The Tribunal has awarded compensation towards conveyance, special diet, nourishment and attendant charges along with medical expenses. However, having regard to the fact that the claimant was treated as inpatient for a period of 485 days and as outpatient on several times and keeping in mind the nature of injuries sustained, it is clear that the claimant required the assistance of an attendant as well as incurred expenses towards diet and other charges. Hence, to award just and fair compensation on the said head, same is reassessed at `1,25,000/-.

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iv.The Tribunal has awarded a sum of 75,000/- towards loss of amenities. However, having regard to the nature of injuries sustained and extent of disability, it is just and proper the said compensation be re-assessed as 1,25,000/-.

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v.Having regard to the fact that the disability of the claimant is re-assessed at 65%, future prospects requires to be added at 40%. Hence, the compensation towards disability is re-assessed as (1,00,000/- + 40% =1,40,000/- X 65% =91,000/- X 15) 13,65,000/-.

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vi.PW.3 has deposed that hip replacement surgery is required to be performed and that costs between 2 to 2.5 lakhs and in such event, there is possibility of some improvement in his condition. PW.4 has deposed that the claimant has long standing behavioural and cognitive deficit areas. Hence, it is clear that the claimant has to incur future medical expenses. Keeping in mind the same, it is just and proper that future medical expenses be re-assessed at 2,00,000/- as against 1,00,000/- awarded by the Tribunal.

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Accordingly, the total compensation under various heads is re-assessed as follows:

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Sl.No.	Heads	Amount awarded by the Tribunal (`)	Amount awarded by this Court(`)
1.	Towards pain and agony	150000.00	150000.00
2.	Towards medical expenses, conveyance, special diet, nourishment and attendant charges	1525000.00	1350000.00 125000.00
3.	Compensation towards loss of income during treatment period	200000.00	00.00
4.	Towards future loss of income	900000.00	1365000.00
5.	Loss of amenities	75000.00	125000.00
6.	Future medical expenses	100000.00	200000.00
	Total	2950000.00	3315000.00