Devaraj H S Vs Manjunatha K

MANJUNATHA K., S/O KOLLAPPA SHET, AGED ABOUT 45 YEARS, R/O KONANDURU VILLAGE, THIRTHAHALLI TALUK, SHIMOGGA DISTRICT 577431, (OWNER CUM RIDER OF VEHICLE HERO HONDA SPLENDOR)

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HC-KAR

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THE NATIONAL INSURANCE CO. LTD., SHIMOGGA, B. H. ROAD, SHIMOGGA 577201, BY ITS MANAGER.

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…RESPONDENTS

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(BY SMT. MANJULA NEMICHANDRA TEJASWI, ADVOCATE FOR R2; R1 SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.10.2022 PASSED IN MVC No.284/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ADDITIONAL MACT, HOSANAGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA No. 1434/2023

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BETWEEN:

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NATIONAL INSURANCE CO. LTD., SHIVAMOGGA, (INSURER OF HERO HONDA SPLENDER PRO BIKE BEARING No.KA-14/EF-3795, POLICY No.39010231166204765905, VALID FROM 21/2/2017 TO 20/2/2018) REPRESENTED BY THE REGIONAL MANAGER NATIONAL INSURANCE CO. LTD., No.144, II FLOOR, SHUBHARAM COMPLEX, M. G. ROAD, BANGALORE-560001.

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...APPELLANT

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(BY SMT. MANJULA NEMICHANDRA TEJASWI, ADVOCATE)

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AND:

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DEVARAJ H. S., S/O SHANTHAVEERAPPA GOWDA, AGED ABOUT 62 YEARS,

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HC-KAR

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OCC-AGRICULTURIST, R/O HAROHITHLUR VILLAGE, HOSANAGARA TALUK, SHIVAMOGGA DISTRICT-577201.

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MANJUNATHA K., S/O KOLLAPPA SHET, AGED ABOUT 49 YEARS, OCC-GOLDSMITH, R/O KONANDURU VILLAGE, THIRTHAHALLI TALUK, SHIVAMOGGA DISTRICT-577201, OWNER CUM RIDER OF HERO HONDA SPLENDER BEARING No.KA-14-EF-3795)

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...RESPONDENTS

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(BY SRI GANAPATHI, ADVOCATE FOR R1; V/O DATED 07.12.2023 SERVICE OF NOTICE ON R2 IS HELD SUFFICIENT)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 28.10.2022 PASSED IN MVC No.284/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HOSANAGARA, AWARDING COMPENSATION OF RS.18,50,000/WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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

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CORAM: HON'BLE MR. JUSTICE S.G.PANDIT and HON'BLE MR. JUSTICE K. V. ARAVIND

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HC-KAR

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE K.V. ARAVIND)

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Heard Sri Ganapathi, learned counsel for the appellantclaimant and Smt. Manjula Nemichandra Tejaswi, learned counsel for the respondent-Insurance company.

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The respondent-Manjunath.K in both appeals remains served.

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These appeals are filed by the claimant and the insurer, calling in question the judgment and award dated 28.10.2022 passed in MVC No.284/2018 by the Senior Civil Judge and Additional Motor Accidents Claims Tribunal, Hosanagara (for short, 'the Tribunal').

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3.1 These appeals arise out of a common judgment and award and are accordingly disposed of by this common judgment.

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3.2 MFA No.1863/2023 is filed by the claimant seeking enhancement of compensation. MFA No.1434/2023 is filed by the insurer challenging the quantum of compensation and attributing contributory negligence.

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HC-KAR

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The brief facts of the case are that the claimant met with an accident involving a Hero Honda Splendour motorcycle bearing Registration No. KA-14/EF-3795, while he was riding his motorcycle bearing Registration No. KA-15/U-4620, on 21.02.2017 at about 9.15 p.m. It is pleaded that the accident occurred due to the rash and negligent riding of the motorcycle by respondent No.1. It is further submitted that the claimant sustained grievous injuries, incurred medical expenses to the tune of Rs.20,00,000/-, and was an inpatient for a period of 20 days. It is also pleaded that the claimant was an agriculturist earning Rs.6,00,000/- per annum and, on account of the injuries sustained, has suffered loss of earning capacity.

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4.1 Notice was duly served on the insurer and the owner of the offending vehicle, namely respondent No.1.

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4.2 The insurer filed its objections denying the averments made in the claim petition and contending that the accident occurred due to the negligence of the claimant himself. It was further contended that the offending motorcycle was not involved in the accident and that the injuries sustained were on account of the claimant’s own fault.

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HC-KAR

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4.3 The claimant examined himself as PW.1 and

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examined the doctor as PW.2. Exs.P1 to P29 were marked in support of the claim. No evidence was led on behalf of the respondents.

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4.4 The Tribunal, upon consideration of the evidence on record, recorded a finding that the accident occurred due to the rash and negligent riding of the offending motorcycle bearing Registration No. KA-14/EF-3795. Taking into account the fracture injuries, surgeries undergone, other injuries sustained, and the period of treatment, the Tribunal awarded a sum of Rs.5,00,000/towards pain, shock, discomfort, and inconvenience. The Tribunal also directed reimbursement of the medical expenses incurred.

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4.5 Apart from the above, compensation was awarded towards future medical expenses, food, nourishment, attendant and conveyance charges, loss of amenities, and under other permissible heads. The Tribunal assessed the monthly income of the claimant at Rs.11,000/- and applied a multiplier of ‘7’, considering that the claimant was aged 65 years as on the date of the accident. Based on the medical evidence, the whole-body

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HC-KAR

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disability was assessed at 29.23%. In all, the Tribunal awarded a total compensation of Rs.18,50,000/-.

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Sri Ganapathi, learned counsel appearing for the appellant–claimant, submits that the claimant has sustained multiple injuries. It is contended that, having regard to the fracture and crush injuries suffered, which have disabled the claimant from carrying on agricultural activities in the manner he was engaged in prior to the accident, the compensation awarded is on the lower side. Learned counsel further submits that the claimant was earning Rs.6,00,000/- per annum from agriculture and that the Tribunal committed an error in assessing the monthly income at Rs.11,000/-. On these grounds, learned counsel seeks enhancement of the compensation.

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Per contra , Smt. Manjula Nemichandra Tejaswi, learned counsel appearing for the insurer, submits that the assessment of monthly income at Rs.11,000/- is justified in the absence of any cogent evidence to establish a higher income. Learned counsel further submits that the compensation awarded under certain heads is excessive and unsupported by evidence.

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HC-KAR

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It is contended that there is no material on record to show that

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the claimant underwent any further treatment.

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6.1 Learned counsel submits that the award of Rs.5,00,000/- towards pain, shock, and suffering is on the higher side. It is also contended that, in the absence of evidence indicating the necessity, nature, and estimated cost of future treatment, the compensation awarded towards future medical expenses is excessive. Learned counsel further submits that, having regard to the fact that the claimant was an inpatient only for a period of 20 days, the compensation awarded towards food, nourishment, attendant, and conveyance charges is on the higher side.

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We have considered the submissions of the learned counsel appearing for the parties and have perused the record.

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The Tribunal, while awarding compensation under the

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head of pain, agony, discomfort, and inconvenience, has referred to the medical evidence and described the nature of the injuries sustained and the treatment undergone by the claimant. The claimant was an inpatient for a period of 20 days and had

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HC-KAR

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sustained Type III-B and Type III-A fracture injuries. The Tribunal recorded a finding that the claimant was not in a position to walk, was dependent on a wheelchair, and was unable to continue his daily routine activities as well as his profession. However, these findings are not supported by the evidence on record.

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The evidence placed on record only indicates that the claimant underwent six surgeries for seven fractures and was an inpatient for 20 days. There is no material to indicate the nature of post-discharge treatment or the period during which the claimant was advised rest or continued treatment thereafter. Having regard to the evidence available on record, this Court is of the considered opinion that the compensation of Rs.5,00,000/- awarded under this head is on the higher side and warrants modification. Accordingly, the claimant is entitled to a sum of Rs.3,00,000/- under this head.

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The Tribunal has awarded a sum of Rs.4,75,000/towards medical expenses based on the bills produced. As the said compensation is supported by the evidence on record, no interference is called for.

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HC-KAR

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Insofar as future medical expenses are concerned,

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the Tribunal has awarded a sum of Rs.2,50,000/-. PW.2 has stated that the claimant would require Rs.2,50,000/- for future treatment. However, the nature of the treatment required and the basis for estimation of such expenses are not forthcoming from the evidence on record. In the absence of specific details regarding the further medical treatment required, the award of Rs.2,50,000/- lacks adequate foundation.

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11.1 Nevertheless, having regard to the number of injuries sustained and the treatment already undergone, it cannot be said that the claimant would not require any future medical treatment at all. In that view of the matter, we hold that the claimant would be entitled to a sum of Rs.1,50,000/- towards future medical expenses.

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The Tribunal has awarded a sum of Rs.2,35,500/towards food, nourishment, attendant, and conveyance charges. While doing so, the Tribunal, having regard to the period of 20 days during which the claimant was hospitalized, awarded Rs.500/- per day towards special diet. The Tribunal further held that, on account of the injuries sustained, the claimant was not

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HC-KAR

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in a position to carry out his daily routine activities and was dependent on an attendant, and accordingly awarded a sum of Rs.2,00,000/- towards attendant charges. A further sum of Rs.25,000/- was awarded towards conveyance expenses.

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12.1 However, the evidence on record is not sufficient to establish that the claimant was wheelchair-bound or required continuous assistance of an attendant due to the injuries sustained. Even assuming that some assistance was required, the award Rs.2,00,000/- towards attendant charges is on the higher side in the absence of specific and cogent evidence. Having regard to the evidence available on record, this Court is of the considered view that a sum of Rs.75,000/- towards food, nourishment, attendant, and conveyance charges would be just and appropriate.

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The claimant was deprived of his earning capacity for a certain period during hospitalization and the subsequent period of recovery. The claimant would be entitled to compensation towards loss of earnings for a period of three months. Having regard to the monthly income assessed at Rs.11,000/-, we

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HC-KAR

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consider it appropriate to award a sum of Rs.35,000/- under this head.

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The compensation awarded under the other heads is

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justified and does not call for interference. Accordingly, the award passed by the Tribunal is modified as under:

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Sl. No.	Heads	Compensation (in Rs.)	Modified compensation (in Rs.)
1	Towards pain, shock and sufferings along with discomfort and inconvenience	5,00,000/-	3,00,000/-
2	Towards medical expenses	4,75,000/-	4,75,000/-
3	Towards future medical expenses	2,50,000/-	1,50,000/-
4	Towards food, nourishment, attendant, conveyance	2,35,500/-	75,000/-
5	Loss of earning during convalescent period	11,000/-	35,000/-
6	Towards loss of amenities	1,00,000/-	1,00,000/-
7	Towards permanent disability	2,78,000/-	2,78,000/-
	Total	18,49,500/-	14,13,000/-
	Rounded off	18,50,000/-	14,13,000/-
	Reduced compensation	4,37,0	00/-