Karnataka High Court
Ashok Kumar S/O Sharnappa Kadwad vs Shivasharnappa And Anr on 20 October, 2022
1 MFA No.201389/2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF OCTOBER, 2022
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MRS. JUSTICE ANIL B.KATTI
MISCELLANEOUS FIRST APPEAL No.201389/2018(MV)
BETWEEN:
Ashok Kumar
S/o Sharnappa Kadwad
Aged about 43 Years
Occ: Private Service in
Sahara Computer Institution, Bidar
and Agriculture
R/o Karpakpalli, Tq. Humnabad
Now residing at Adarsh Colony
Bidar, Now being bed ridden
Represented by Smt. Siddamma
W/o Ashok Kumar
as his Next Friend
... Appellant
(By Smt. Veerani V. Nandi, Advocate for
Sri Ravi B. Patil, Advocate)
AND:
1. Shivasharnappa
S/o Prabhushetty Nashi
2 MFA No.201389/2018
Aged about 42 Years
Occ: Agriculture & Business
R/o Karpakpalli
Tq. Humnabad, Dist. Bidar-585 401
(Owner of Car bearing No.KA-39/M-1338)
2. M/s. New Indian Assurance Company
Ltd., Represented by its Branch Manager
No.8-9-265/313, 1st Floor, Padma
Kunj Complex Above IDBI Bank
Udgir Road, Bidar
... Respondents
(By Sri Smt. Shashikala Jahagirdar, Advocate for R2;
Notice to R1 dispensed with V.O.D. 26.06.2019)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicle Act, 1988, praying to set aside
the judgment and award dated 17.04.2018 passed by the
Court of Addl. MACT-II and Prl. Senior Civil Judge & CJM at
Bidar and consequently allow the present appeal thereby
enhance the compensation from Rs.38,30,100/- to
Rs.85,00,000/- as claimed in the present appeal, in the
interest of justice and equity.
This appeal having been heard and reserved on
10.10.2022, coming on for pronouncement of judgment
this day, K.S.Mudagal J. delivered the following:
3 MFA No.201389/2018
JUDGMENT
Challenging the adequacy of the compensation awarded to him, the claimant in MVC No.707/2015 on the file of Principal Senior Civil Judge and Addl. MACT-II, Bidar has preferred this appeal.
2. On 21.08.2015 at 2.00 a.m. when the appellant/claimant was traveling in the Car bearing Registration No.KA-39-M-1338 driven by the first respondent, the said Car met with an accident near Bhavani Dhaba on Humnabad-Bidar. Respondent No.1 was the registered owner and respondent No.2 was the insurer of the said Car. In the accident, the appellant suffered grievous injuries. He filed MVC No.707/2015 before the Tribunal claiming compensation of Rs.85,00,000/- on the ground that the accident took place due to rash and negligent driving of the vehicle by the first respondent.
3. Respondent No.1 admitted the accident but denied the other aspects. Respondent No.2 contested the petition denying the accident, rashness and negligence on 4 MFA No.201389/2018 the part of respondent No.1, the injuries, age, disability of the claimant, his avocation, income and its liability. .
4. The appellant adduced his evidence. The Tribunal on hearing the parties, by the impugned award granted compensation of Rs.38,30,100/- together with interest @ 6% per annum. The Tribunal held that the petitioner has suffered 100% functional disability, assessed his monthly income at Rs.12,000/- per month, added Rs.3,000/- towards future prospects.
5. The Tribunal awarded the compensation on different heads, as follows:
Sl.
Heads Amount
No.
1. Loss of future income Rs.25,20,000/-
2. Pain and suffering Rs.60,000/-
3. Loss of income during laid up Rs.72,000/-
period
4. Medical expenses Rs.8,07,500/-
5. Conveyance charges Rs.41,600/-
6. Towards Food, extra Rs.13,860/-
nourishment and miscellaneous charges
7. Towards lodging charges for Rs.749/-
visiting NIMHANS Hospital
8. Towards loss of amenities Rs.50,000/-
9. Towards Attender's charges Rs.2,40,000/-
10. Towards future medical Rs.25,000/-
expenses Total Rs.38,30,100/-
Rs.38,30,100 5 MFA No.201389/2018
6. Smt. Veerani V. Nandi, learned counsel appearing for Sri Ravi B. Patil, learned counsel for the appellant submits that the Tribunal was not justified in disbelieving the salary certificate and taking monthly income of the appellant at Rs.12,000/- per month. It is further submitted that the compensation awarded on the heads of future medical expenses, pain and suffering, loss of amenities, attendant charges, food and nourishment are on the lower side. It is also submitted that interest awarded is also on the lower side.
7. In support of her submission, she relied upon the judgment of Hon'ble Supreme Court in Master Ayush Vs. Branch Manager, Reliance General Insurance Company Limited and another reported in (2022) 7 SCC 738.
8. Per contra, Smt. Shashikala Jahagirdar, learned counsel for respondent No.2 - Insurance company justifies the impugned award on the ground that the claimant did not examine the employer to prove the Salary 6 MFA No.201389/2018 Certificate - Ex.P.15. Still the Tribunal has taken reasonable amount of Rs.12,000/- per month as the income of the claimant. The compensation awarded on the other heads as per the evidence adduced before the Tribunal is just compensation. She further submits that the judgment of Master Ayush is not applicable.
9. Respondent No.2 has accepted the findings of the Tribunal with regard to claimant's age, percentage of disability and also his employment as Computer Instructor. The age of the claimant at the time of accident was 42 years. As per the claimant's evidence and Salary Certificate - Ex.P.15 his monthly income as computer instructor was Rs.14,000/-. His qualification was degree in Bachelor of Science with Mathematics, Electronics and Computer Science. Thus he was technically qualified person. Therefore the Tribunal was not justified in disbelieving the Salary Certificate and taking the income only at Rs.12,000/- per month. Therefore the income of the claimant has to be taken at Rs.14,000/- per month. 7 MFA No.201389/2018
10. As per decision of Hon'ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi & others reported in (2017) 16 SCC 680, future prospects at 40% to be added to the income of the claimant. As per decision of Hon'ble Supreme Court in Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 the multiplier applicable to the person aged 42 years is '14'. Therefore loss of future income comes to Rs.32,92,800/- (Rs.14,000 + Rs.5600 (40%) = Rs.19,600 x 12 x 14). The loss of income during the laid up period also has to be enhanced accordingly.
11. Ex.P.9, the Neuropsychological Assessment Report shows that the claimant was treated for a Diffuse Axonal injury in the following RTA. He required support for walking, standing and sitting down. He could not maintain eye-to-eye contact. His hearing and vision were severely impaired. He was not able to produce any expressive speech and minimal ability to comprehend and 8 MFA No.201389/2018 communicate. His psychomotor activity was decreased. The findings with regard to his cognitive disability function is as follows:
Sl.No. Domain Level
Functioning
1 Self-Help General 7 months
2 Self Help Eating 1 years, 2 months
3 Self Help Dressing Not present
4 Self-Direction Not present
5 Occupation Not present
6 Communication 10 months
7 Locomotion Below 2 years
8 Socialization Not present
12. The above findings go to show that the claimant was in complete vegetative state. Having regard to such condition the compensation awarded on the heads of pain and suffering, loss of future amenities, future medical expenses, conveyance and accommodation charges, food and nourishment are on the lower side. The compensation awarded on attendant charges is also on the lower side.
13. The judgment of the Hon'ble Supreme Court in Master Ayus's case referred to supra shows that in that 9 MFA No.201389/2018 case the victim was aged 5 years and had suffered similar injuries. Therefore applying '18' multiplier held that the following was the just compensation:
Head Amount
A Loss of future earnings due to
the permanent disability for life Rs.11,18,880/-
(3700 + 1480 = 5180) x 12 x
18
B Medical expenses Rs.5,74,000/-
C Future medical expenses i.e., Rs.10,00,000/-
towards purchase of 2 devices
D Pain, suffering and loss of Rs.10,00,000/-
amenities
E Loss of marriage prospects Rs.3,00,000/-
F One attendant charges (3700 x Rs.8,00,000/-
12 x 18) = 7,99,200 rounded
off
G Conveyance charges Rs.2,00,000/-
Total Rs.49,92,880/-
Rounded off Rs.49,93,000/-
14. Following the said judgment and considering the facts and circumstances of the present case and the above discussion, the just compensation payable to the claimant in the present case is as follows: 10 MFA No.201389/2018
Compensation Just Sl. Heads granted by compensation No. Tribunal payable 1. Loss of future
Rs.25,20,000/- Rs.32,92,800/-
income
2. Pain and suffering Rs.60,000/-
3 Towards loss of Rs.50,000/- Rs.10,00,000/-
amenities
3. Loss of income during laid up period Rs.72,000/- Rs.84,000/- (Rs.14,000/- x 6)
4. Medical expenses Rs.8,07,500/- Rs.8,07,500/- 5 Towards future Rs.25,000/- Rs.10,00,000/-
medical expenses
6. Conveyance charges Rs.41,600/-
7. Towards Food, extra nourishment and Rs.2,00,000/-
miscellaneous Rs.13,860/-
charges
8. Towards lodging
charges for visiting Rs.749/- Rs.749/-
NIMHANS Hospital
9. Towards Attender's
charges (Rs.3,000 Rs.2,40,000/- Rs.5,04,000/-
x 12 x 14)
Total Rs.38,30,100/- Rs.68,89,049/- Enhanced compensation Rs.30,58,949/- Hence the following ORDER The appeal is partly allowed.
Respondent No.2 - insurer is hereby directed to deposit the enhanced compensation of Rs.30,58,949/- with 11 MFA No.201389/2018 interest thereon at 6% per annum before the Tribunal within four weeks from the date of receipt of the copy of this order.
Award of the Tribunal with regard to the ratio of investment in fixed deposit is maintained.
Sd/-
JUDGE Sd/-
JUDGE BL