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MFA No. 802 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MAY, 2023 BEFORE THE HON'BLE MR JUSTICE C M JOSHI MISCELLANEOUS FIRST APPEAL NO. 802 OF 2017 (MV-I)
BETWEEN:
MR. PUSHPA KUMAR K D, S/O DAMODHARAN, AGED ABOUT 48 YEARS, R/AT KAILAS, NEAR SOMESHWARA, ANANDASHRAMA SCHOOL, BEACH ROAD, KOTEKAR POST, SOMESHWARA, MANGALORE TALUK-575023.
…APPELLANT (BY SRI. GURUPRASAD B R, ADVOCATE) AND:
IFFCO TOKYO GENERAL INSURANCE CO. LTD., BRANCH OFFICE AT BHARATH AUTO CARRIER PVT LTD., KUNTIKAN JUNCTION, MANGALORE TALUK-575003, REPRESENTED BY ITS MANAGER.
MR. HARSHAVARDHANA, S/O NARAYANA BELCHADA, AGED 53 YEARS, R/AT SIDIPADPU,
Digitally signed by T S NAGARATHNA Location: High Court of Karnataka
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MFA No. 802 of 2017
BHAGAVATHI COMPOUND, ULLALA, MANGALORE TALUK-575020. …RESPONDENTS (BY SRI. E I SANMATHI, ADVOCATE FOR R1 NOTICE TO R-2 IS DISPENSED WITH V/O DATED 28-11-2017)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.08.2016 PASSED IN MVC NO.609/2012 ON THE FILE OF THE M.A.C.T AND II ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU, D.K, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
This appeal is directed against the judgment and award dated 20-08-2016 in MVC No.609/2012 by learned II Additional Senior Civil Judge and MACT, Mangaluru, whereby, the appellant was awarded compensation of Rs.2,27,000/- with interest at 9% p.a.
The factual matrix relevant for this appeal are as below:
The appellant/petitioner was proceeding on his motor cycle bearing No.KA.19.Y. 2298 on 15.1.2012 and while he was near Kolya Krishna Kalyana Mantapa of Kotekar
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MFA No. 802 of 2017
village on NH 66, at about 3.00 p.m. the driver of Maruthi Alto car bearing No.KA.19.MB-1413 came in rash and negligent manner and dashed to the motor cycle of the petitioner. As a result, he sustained injuries and he was shifted to Unity Health complex, at Mangalore after first aid given in a local hospital. He was inpatient from 15-1-2012 to 27-1-2012. Petitioner contended that he had spent Rs.1,00,000/- for medical expenses and need another Rs.30,000/- for the future medical expenses. He contended that he was aged 43 years, and was the owner of the restaurant by name Kerala House and earning Rs.15,000/- per month. Due to the accidental injuries, he is unable to earn his lively hood and has suffered monetary loss. The accident being on account of the actionalble negligence on the part of the Maruthi car driver, the petitioner is entitled for a compensation of Rs.15,00,000/-.
On receiving notice from the Tribunal, the owner of the Maruthi car as well as the insurer, who were arrayed
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MFA No. 802 of 2017
as respondent Nos. 1 and 2 appeared before the Tribunal and respondent No.2 alone filed the written statement.
Respondent No.2 Insurance Company apart from denying the contentions of the petitioner as baseless, arbitrary, exorbitant and speculative, contended that the petitioner be put to strict proof of his contentions and disputed the age, income and occupation of the petitioner.
On the basis of the pleadings, the Tribunal framed the necessary issues. The petitioner was examined as PW1 and two witnesses were examined on his behalf and Exs.P1 to P20 were marked. The respondent No.2- Insurance company did not lead any oral evidence, but the copy of the policy was marked as Ex.R1.
After hearing the arguments by both the sides, the Tribunal awarded a sum of Rs.2,27,000/- under different heads as below:
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MFA No. 802 of 2017
1 Pain and Sufferings Rs. 75,000-00 2 Medical Expenses Rs. 15,000-00 3 Attendant charges, food and extra nourishing and conveyance etc. Rs. 8,000-00 4 Loss of future income due to disability Rs. 84,000-00 5 Loss of income during treatment period Rs. 40,000-00 6 Future medical expenses Rs. 5,000-00
Total Rs.2,27,000-00
Aggrieved by the said judgment, the petitioner is before this Court contending that the Tribunal had not considered the nature of the injuries sustained by the petitioner and the resultant disability suffered by him. It is contended that the age, income and occupation of the petitioner has not been properly appreciated by the Tribunal and the disability suffered by the Tribunal as spoken by the PW3 has not been considered.
On issuance of notice by this Court, respondent Insurance company has appeared through its counsel. Notice to the respondent No.2 is dispensed with at the instance of the appellant.
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MFA No. 802 of 2017
The Tribunal records have been secured and the arguments by learned counsel appearing for both the sides are heard and perused the records.
The only aspect that needs to be considered in this appeal is regarding the quantum of the compensation. The fact that there was an accident involving the Maruthi alto car insured by the respondent No.2 Insurance company owned by the respondent No.1 is not in dispute.
The perusal of the records reveal that the petitioner had sustained two abrasions on his right forearm and the cheek; there was tenderness and swelling over the right shoulder joint with underlying dislocation of acromion clavicullar joint on right side; abraded contusion over the left side of the chest, involving fracture of 3rd, 4th,5th and 6th ribs. He had also suffered cerebral concussion with cerebral oedema and bilateral parietal lobe contusion and contusion of brain. The Tribunal on appreciation of the evidence available on record concluded that there is a disability of 5% even though the PW3, the
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MFA No. 802 of 2017
Medical Officer who had assessed the disability, had stated that there was 20% disability to the right upper limb. The reason assigned by the Tribunal for considering 5% disability was on account of the fact that the Doctor was not the treated Doctor. The evidence on record discloses that the petitioner was a Hotelier and was running the Hotel Kerala house by his personal exertion of the labour. The functional disability of the petitioner vis- a -vis the injuries suffered were not assessed by the Tribunal. But it simply jumped into the conclusion that 1/4th of the disability stated by PW3 has to be considered as the PW3 was not a treated Doctor. It is relevant to note that the functional disability should have been assessed by the Tribunal by considering the physical disability stated by PW3.
On a careful perusal of the records, it is evident that the petitioner has produced the income tax returns as well as the evidence of the PW2 to show that he was an income tax assessee and was running the business. Impairment in the upper limb definitely affect the day
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MFA No. 802 of 2017
today activity of the petitioner in pursuing his business of a hotel. Therefore, the disability of the petitioner is assessed by this Court at 7% instead of 5% as is assessed by the Tribunal.
The Tribunal has fixed the income of the petitioner at Rs.10,000/- per month, even though the claim was for Rs.15,000/- per month. It was noticed by the Tribunal that the documents at Exs.P13 to P16, which are income tax assessment particulars do not bear the signature of the petitioner or his Chartered Accountant and therefore, it cannot be believed. In doing so, it has also considered the evidence of the PW2. On a perusal of the documentary as well as the oral evidence in this regard, I do not find any reason to differ with the conclusions reached by the Tribunal. Thus, the future loss of income due to disability is calculated as, Rs.10,000/- x 12 x 14 x 7% = Rs.1,17,600/- by adopting the multiplier of 14.
Sofar as the compensation of Rs.75,000/- and Rs.15,000/- under the heads of pain and sufferings and
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MFA No. 802 of 2017
medical expenses are concerned, there is no need to enhance the same. However, sofar as future medical expenses is concerned, there is a clear evidence to show that the implants have to be removed. The Tribunal has awarded a sum of Rs.5,000/- towards the future medical expenses which appears to be not justifiable. Therefore, a sum of Rs.20,000/- has to be awarded under this head.
The petitioner has been awarded a sum of Rs.40,000/- under the head of loss of income during the laid up period and a sum of Rs.8,000/- for attendant charges, food conveyance etc., which do not require any enhancement.
It is relevant to note that the Tribunal has not awarded any amount under the head of loss of amenities in life, therefore, a sum of Rs.10,000/- is awarded to the petitioner under this head. Hence, the petitioner is entitled for the compensation under different heads as below:
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MFA No. 802 of 2017
1 Pain and Sufferings Rs. 75,000/- 2 Medical Expenses Rs. 15,000/- 3 Attendant charges, food and extra nourishing and conveyance etc. Rs. 8,000/- 4 Loss of future income due to disability Rs. 1,17,600/- 5 Loss of income during treatment period Rs. 40,000/- 6 Future medical expenses Rs. 20,000/- 7. Loss of amenities Rs. 10,000/-
Total Less: Awarded by the Tribunal Enhancement Rs. 2,85,600/- Rs. 2,27,000/- Rs. 58,600/-
Thus, in addition to what has been awarded by the Tribunal, there shall be an increase of Rs.58,600/- together with interest at 6% p.a. from the date of petition till its realization. Hence, the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award dated 20.08.2016 passed in MVC No.609/2012 by the Tribunal is modified awarding enhanced compensation of
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Rs.58,600/- with interest at 6% p.a. from the date of petition till its realization.
(iii) Rest of the order of the Tribunal remain unaltered.
(iv) Insurance Company is directed to deposit the compensation amount with interest within four weeks from the date of receipt of the copy of this order.
Sd/- JUDGE
tsn* List No.: 1 Sl No.: 32