Purushothama K N Vs Kalakesh @ Kalaka Mallesh K

KALAKESH @ KALAKA MALLESH K, S/O K. B. BASAVARAJAPPA, AGED ABOUT 38 YEARS, DRIVER CUM OWNER OF LORRY, BEARING NO.KA-53/A-1007, NEAR HARSHA LODGE, HAGARIBOMMANAHALLI VILLAGE, BELLARY DISTRICT – 583212.

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THE LEGAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD., ARCADE COMPUTERS, C. G. HOSPITAL ROAD, VIDYARTHI BHAVANA, DAVANAGERE – 577001.

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…RESPONDENTS

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(BY SRI. Y.K.SESHAGIRI RAO.,ADVOCATE FOR R2;

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NC: 2026:KHC:3520 MFA No. 4271 of 2020

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HC-KAR

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VIDE ORDER DATED 03.06.2022, NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 07.06.2019 PASSED IN MVC NO.557/2018 ON THE FILE OF THE ITINERARY SENIOR CIVIL JUDGE, JAGALUR AND TO ENHANCE THE COMPENSATION FROM RS.4,56,715/- TO RS.19,00,000/BY ALLOWING THIS APPEAL IN THE INTEREST OF EQUITY AND JUSTICE.

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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 MS. JUSTICE TARA VITASTA GANJU

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ORAL JUDGMENT

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Admit.

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The present Appeal has been filed under Section 173(1) of MV, Act, 1988 and seeks to challenge the award dated 07.06.2019 passed by learned Itinerary Senior Civil Judge Court at Jagalur in MVC No.557/2018 (hereinafter ‘Impugned Award’). By the Impugned Award, compensation in a sum of Rs.4,56,715/- has been granted together with interest at 8% per annum and the liability has been fastened on Respondents

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1 & 2 jointly and severally.

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The challenge in the present appeal is by the injured seeking enhancement. The brief facts are that on 20.02.2018

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NC: 2026:KHC:3520 MFA No. 4271 of 2020

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at about 7.00 p.m. the appellant and his brother were riding on

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a motorcycle bearing No.KA-17-ED-7469 and when they reached near Udagatta village cross on Jagalur Donnehalli road, a lorry bearing registration No.KA-53-A-1007 came from opposite direction stated to be driven in a rash and negligent manner, collided with the motorcycle. As a result of the accident the appellant fell down and sustained grevious injuries all over his body. The appellant took treatment at Jagalur Government Hospital and thereafter shifted to SSIMS hospital for treatment. During the period from 21.02.2018 to 24.02.2018 and thereafter from 25.02.2018 to 05.03.2018 he underwent surgery and stated that he that he spent Rs.5 lakhs towards his treatment.

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It is the case of the appellant that prior to the accident he was doing agricultural work and tailoring work and getting monthly income of Rs.20,000/-. However he is unable to perform his avocation after the accident.

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A case of rash and negligent driving was registered against Respondent No.1, owner of the lorry. Since the lorry

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NC: 2026:KHC:3520 MFA No. 4271 of 2020

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had a valid insurance policy, the Insurance Company was also

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held as liable.

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6 . On the basis of the pleadings of the parties, the following issues have been framed:

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“1.Whether the petitioner proves that on 20.02.2018 at about 7.00 p.m. when himself and his brother were proceeding in a TVS Excel Motor cycle bearing Registration No.KA-17/ED-7469 towards Linganahalli from Udagatta village, reached near Udagatta village Cross, JagalurDonnehalli road, the respondent No.1 being the driver of the Lorry bearing Registration No.KA53/A-1007 has drove the same in a rash and negligent manner and dashed against the Motor cycle, as a result he has sustained grievous injuries as alleged in the claim petition?

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2.Whether the petitioner is entitled for the relief as prayed? If so, from whom and what is the quantum?

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3.What order?”

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After examining the evidence, the learned Trial Court adjudicated the income of the petitioner at the rate of Rs.9,000/- per month and awarded amounts for pain and suffering, reimbursement of medical bills and loss of amenities including future medical expenses in the following amounts:

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NC: 2026:KHC:3520 MFA No. 4271 of 2020

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Heads	Amount (Rs.)
Pain and suffering	40,000-00
Medical bills	1,71,235-00
Loss of income during laid up period	27,000-00
Loss of future earning due to disability	1,68,480-00
Loss of amenities, conveyance,	35,000-00
food and nourishment and attendant charges
Future medical expenses	15,000-00
Total	4,56,715-00

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The disability was awarded at 12% by the learned Trial Court. Learned counsel for the appellant submits that he has challenged the award on two grounds. Firstly, he submits that since the accident took place in the year 2018, atleastthe notional income which was Rs.12,500/- at that time should have been awarded while calculating compensation. Secondly, he submits that the disability percentage awarded has been wrongly calculated.

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Learned counsel seeks to rely upon the evidence which has been produced by the appellant in this behalf. He submits

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HC-KAR

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that the doctor was examined as PW-2 as well as disability certificate was placed on record at Ex.P26 wherein the disability was stated at 38%. However the learned Trial Court has wrongly taken the disability at 12%.

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Learned counsel for the respondent on the other hand submits that, since the appellant was unable to prove the disability, the learned Trial Court has rightly calculated 1/3^rd of disability to the entire body. On the notional income to be awarded, however the learned counsel for the respondentInsurance Company fairly concedes that the notional income has to be taken at Rs.12,500/- p.m.

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Thus the issue that arises before this Court for consideration is whether functional disability awarded by the Court at 12% was correctly evaluated by the learned Trial Court?

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As stated above, since the accident took place on 22.02.2018 and the notional income for the year 2018 was at the rate of Rs.12,500/-p.m., the learned Trial Court erred in taking the notional income at Rs.9,000/- per month and to that

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extent the award needs to be enhanced taking notional income at Rs.12,500/- p.m.

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On the aspect of disability, the learned Trial Court gave a finding after considering the evidence of PW-1 and PW-2 and the duration of treatment, gave a finding that the physical disability be 12% instead of 38% as given by the doctor.

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The learned Trial Court also found that the petitioner had not produced any document to show his age. The record reflects that the age of the appellant as 49 years which was set out in discharge summary exhibited as Ex.P-11. Since the discharge summary is issued by the hospital showing the age as 49 years, the learned Trial Court as such has taken the age of the injured as 49 years and has applied the multiplier accordingly.

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The appellant examined himself as PW-1 and his doctor as PW-2. He has also placed on record Ex.P-26, the disability certificate dated 04.12.2018 issued by the doctor PW-2. The disability certificate also forms part of evidence of PW-2. PW-2 in his examination-in-chief has set out the details of disability and has stated that the patient is unable to sit cross legged and

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cannot squat on the floor.It is further stated that the knee

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flexion is also about 24%.The relevant extract of the

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examination-in-chief of PW-2 is set below:

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“The last follow-up visit by the patient was on 04.12.2018 and I had examined the patient and found the following.

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Right thigh healed surgical scars (+). Right knee range of movements. Flexion – 0-80 degree [N-0-135 degree] Upto = 2^nd Associated with moderate degree pain. Right lower limb is short by 1 ½” inch. On compared to left lower limb. Right LL Left LL 37 ½” 39”

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Patient unable to sit cross leg and cannot squat on the floor.

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Gets moderate degree pain in the right knee region on wasting for more than 50 meter.

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X-ray Malunited fracture of right femur with implant in situ.

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Disability assessment Guidelines : Gazette of India – extra – ordinance

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Sec.II – Jan.5.2018 Knee flexion Upto 1/3^rd 50 – 24%

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The above findings are true and correct with best of my knowledge and I opinion that this patient has got a permanent physical disability of about 38%.”

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[Emphasis supplied]

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Undisputedly the cross examination of PW-2 did not dispel the disability assessment. It is also not disputed by the parties that PW-1 has stated in his examination-in-chief that he was originally working as an agriculturist as well as a Tailor and that he was the owner of certain parcels of lands measuring more than 5 acres. The learned counsel for the respondent has however contended that the disability could not be taken at 38% since the appellant-claimant did not prove his avocation.

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This Court is unable to agree. The petitioner is stated to be an agriculturist and performing the work of Tailor.He has also produced evidence as reflected above qua his disability. The doctor has found physical disability of his knee to be 24%. There is nothing on record to dispute that the appellantclaimant was doing tailoring work. There is also no reason for the finding of the learned Trial Court that the whole body disability would be taken as 12% instead of 38%. When there is evidence produced by the Appellant with regard to his

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disability and given his avocation as an agriculturist and a tailor. Learned counsel for the appellant submits that the injuries were grievous and the appellant will not be able to perform his avocation as before. The evidence of PW-2 clearly sets out that the injured can no longer sit cross legged or squat, concededly, the claimant was not doing desk job, but as an agriculturist he would definitely be required to squat and thus he would not be able to perform his avocation in the same manner as before. However, the injury is to his right femur alone.In view of the aforegoing discussions, this Court deems it apposite to fix the functional disability at 25%.

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Accordingly the following amounts are calculated as loss of earnings in place of Rs.1,68,480-00 which has been awarded

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by the learned Trial Court. Thus the amount awarded is enhanced in the following manner:

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Heads of compensation	Amount (Rs.)
Pain and suffering	40,000-00
Medical bills	1,71,235-00
Loss of income during laid up period	27,000-00
Loss of future earning due to disability (Rs.12,500X12)X25%X13 25% Disability, 13 Multiplier	4,87,500-00

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Loss of amenities, conveyance, food and nourishment and attendant charges	35,000-00
Future medical expenses	15,000-00
Total	7,75,735-00
Less: Compensation awarded by the	4,56,715-00
Tribunal
Enhanced compensation	3,19,020-00

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Accordingly, the Court proceeds to pass the following directions:

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ORDER

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(i) The appeal is allowed.

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(ii) The Impugned Judgment and Award dated 07.06.2019 passed by learned Itinerary Senior Civil Judge Court at Jagalur in MVC No.557/2018 is modified to the extent that the appellant/petitioner is entitled to enhanced compensation of Rs.3,19,020/- along with interest at the rate of 6%per annum from the date of petition till the date of realization, in addition to Rs.4,56,715/- that has been awarded by the Tribunal.

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(iii) The remaining portion of the Impugned Award of the Tribunal remains undisturbed.

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(iv) The Insurance Company shall deposit the enhanced compensation with interest at 6% p.a. within a period of eight weeks from the date of receipt of the judgment.

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(v) The amount in deposit by the Insurance Company before this Court shall be transmitted to the Tribunal within a week.

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(vi) The Registry is directed to draw the modified Award accordingly.

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(vii) The Registry is directed transmit a copy of this judgment to the concerned Tribunal, along with its records.

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(viii) No order as to costs.

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Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKA (TARA VITASTA GANJU) JUDGE

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SNB List No.: 1 Sl No.16

Purushothama K N v. Kalakesh @ Kalaka Mallesh K

Case brief

What is this about?

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Purushothama K N v. Kalakesh @ Kalaka Mallesh K

Case brief

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What the court decided

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