Karnataka High Court
P Kataum Ningaiah vs Ramlal Choudhary on 29 March, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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MFA No. 2730 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
MISCELLANEOUS FIRST APPEAL NO. 2730 OF 2020 (MV-I)
Between:
P. Kataum Ningaiah
S/o. Paliah @ Hotel Palaiah,
Aged about 46 Years,
R/o. Kaki Boraiahnahatty Village,
Hirehally, Challakere Taluk,
Chitradurga District-577501.
...Appellant
(By Sri. B Pramod, Advocate)
And:
1. Ramlal Choudhary
S/o. Chatra Choudhary
Digitally signed Aged about 47 Years
by BANGALORE
MADHAVACHAR
VEENA
RC Owner of Lorry
Location: High
Court of
Karnataka
No.RJ 01 GB 8625
R/o. Tihari Village
Sirnagar, Nasirabad,
Azmeer District
Rajastan State
2. The Branch Manager,
New India Assurance Co. Ltd.,
Branch Office, Vijashree Complex,
B.D. Road, Near Union Park,
Chitradurga Town-577501.
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MFA No. 2730 of 2020
3. K. Nagesh
S/o. K Ramanna @ Ramudu
Aged Major,
Owner of Maxi Cab,
Bearing Reg.No.KA-34/A 7102,
R/o. No.32/A, 1st Cross, Kapkal Road,
Bellary Town-583104.
4. The Branch Manager,
United India Insurance Co. Ltd.,
Branch Office DRM Hospital Complex,
Holalkere Road,
Chitradurga City-577501.
...Respondents
(By Sri.G.S. Marulaiah, Advocate for R-2;
Sri. Ravish Benni, Advocate for R-4;
R1- served and unrepresented;
R-3 - notice dispensed with
vide order dated 01-03-2023)
****
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, 1988, praying to call for
records pertaining to this case; modify the judgment and award
dated 23-12-2019 passed in M.V.C.No.254/2019 by the Court
of I Additional Senior Civil Judge and MACT-IV, Chitradurga and
award just and proper compensation with 9% interest; and
pass such other order/s deemed just and proper in the facts
and circumstances of the case in the interest of justice and
equity.
This Miscellaneous First Appeal coming on for Admission,
through Physical Hearing/Video Conferencing, this day, the
Court delivered the following:
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MFA No. 2730 of 2020
JUDGMENT
The present appeal is filed by the claimant under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the Court of the learned I Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal No. IV, at Chitradurga, (hereinafter for brevity referred to as "the Tribunal"), in its judgment and award dated 23-12-2019, in M.V.C.No.254/2019.
2. The summary of the case of the claimant before the Tribunal was that, on the date 17-05-2018, he, along with others was travelling in a Maxi Cab bearing registration No.KA-34/A-7102 from Hiriyur towards Rudrammanahalli Village. When the said vehicle came near Garani Cross, on NH-150(A) Road, Challakere Taluk, at about 2:00 p.m., the driver of the said Maxi Cab vehicle drove the same in a rash and negligent manner and dashed to the hind portion of the parked Lorry bearing registration No.RJ-01/GB-8625. Due to the said road -4- MFA No. 2730 of 2020 traffic accident, the claimant sustained grievous injuries to both his legs, thighs, lower back, hip joint and scalp. Immediately, he was shifted to the Government Hospital, Talak, Challakere, and after first-aid treatment, he was shifted to the District Hospital, Chitradurga, where he underwent CT scan and was diagnosed of posterior dislocation of right femoral head on right side with displaced posterior rim fracture of acetabulum.
The claimant has stated in his claim petition that, he has undergone a surgical operation for implants and spent a sum of `1,00,000/- towards the medical expenses. Stating that prior to the road traffic accident, he was doing agriculture and milk vending business, and earning a sum of `20,000/- per month, however, due to the injuries sustained by him in the road traffic accident, he could not continue with his avocation, the claimant has claimed in total, a compensation of a sum of `20,00,000/- from the respondents No.1 to 4, arraigning respondents No.1 and 3 as the owners of the two offending motor vehicles and -5- MFA No. 2730 of 2020 respondents No.2 and 4 as the insurers of the alleged two offending vehicles respectively.
3. In response to the notice served upon them, the respondents No.2 and 4, being the insurers of the two motor vehicles, have filed their independent statement of objections, denying the manner of the occurrence of the road traffic accident as alleged by the claimant in his claim petition and also the age, income and occupation of the claimant. The respondent No.2 - Insurance Company (of the Lorry bearing registration No.RJ-01/GB-8625) further stated that the liability is subject to the terms and conditions of the policy and the validity of the documents of the insured vehicle, however, it contended that the accident was solely due to the rash and negligent driving of the Maxi Cab vehicle by its driver. The respondent No.4
- Insurance Company (of the Maxicab bearing registration No.KA-34/A-7102), though stated that, the Policy of Insurance with respect to Maxi Cab vehicle was in force, however, it contended that the alleged road traffic -6- MFA No. 2730 of 2020 accident has occurred solely due to the rash and negligent act on the part of the driver of the Lorry bearing registration No.RJ-01/GB-8625 by parking the said Lorry in the middle of the road, without following the traffic rules and regulations.
4. Before the Tribunal, the claimant got himself examined as PW-1 and also examined one Dr. N. Venkatashiva Reddy as PW-2 and got marked documents from Exs.P-1 to P-15. On behalf of the respondents, one Sri. Akshay Hiremath was examined as RW-1 and two documents in the form of copies of two Insurance Policies were got marked as Exs.R-1 and R-2.
5. After analysing the evidence and the materials placed before it, the Tribunal has awarded a global compensation of a sum of `1,00,000/- with interest at the rate of `7% per annum from the date of the petition till its deposit. However, it apportioned the liability to pay the compensation at the rate of 75% on the part of the -7- MFA No. 2730 of 2020 respondents 3 and 4, who are the owner and insurer of the Maxi Cab vehicle bearing registration No.KA-34/A-7102 and the remaining 25% on the part of the respondents No.1 and 2, who are the owner and insurer of the offending Lorry bearing registration No.RJ-01/GB-8625.
It is against the said judgment and award passed by the Tribunal, the claimant has filed this appeal, seeking enhancement of compensation, on the ground that the compensation awarded by the Tribunal is on the lower side.
6. Records were called for from the Tribunal and the same are placed before the Court.
7. The learned counsel for the appellant (claimant), the learned counsel for respondent No.2 (insurer of the Motor vehicle Lorry) and the learned counsel for respondent No.4 (insurer of the Motor vehicle Maxi Cab) are physically appearing before the Court. Even though the respondent No.1 is served with the notice, he has -8- MFA No. 2730 of 2020 remained un-represented. On a memo filed by the learned counsel for the appellant, notice to Respondent No.3 is dispensed with vide order dated 01-03-2023.
8. Though this appeal is listed at the stage of admission, however, with the consent of the learned counsel for the parties, the same is taken up for its final disposal.
9. Heard the arguments from both side. Perused the materials placed before this Court including the memorandum of appeal, impugned judgment and also the records of the Tribunal.
10. The present appeal being the claimant's appeal and the respondents No.2 and 4, Insurers having not preferred either cross-objection or a counter appeal, the question of occurrence of the road traffic accident on the date, time and place as alleged by the claimant and also -9- MFA No. 2730 of 2020 the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute.
Further, the claimant got himself examined as PW-1, who in his examination-in-chief has reiterated the contentions taken up by him in his claim petition. In support of his contention, he has also got produced documents from Exs.P-1 to P-15, which inter alia includes the copies of the complaint, FIR, scene of panchanama, Motor Vehicle Inspector's Inspection reports of two vehicles, wound certificate, charge sheet, discharge card and disability certificate, which goes to establish the occurrence of the road traffic accident on the date, time and place as mentioned in the claim petition and the claimant sustaining injuries in the said accident, so also the rash and negligent driving on the part of the drivers of the alleged offending Motor vehicles in causing the said road traffic accident.
Further, the apportionment of liability ordered by the Tribunal jointly and severally among the respondents
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MFA No. 2730 of 2020No. 1 and 2 at 25% on the one part and respondents No.3 and 4 at 75% on the other part, has not been disputed or objected to by either the appellant in this appeal or by any of the respondents herein. As such, the apportionment of the liability at the rate of 25% on the part of the owner and insurer of the offending Motor vehicle Lorry bearing registration No.RJ-01/GB-8625 and the remaining 75% on the part of the owner and insurer of the offending Motor vehicle Maxi Cab bearing registration No.KA-34/A-7102 is to be accepted and proceeded accordingly.
As such, the only question that remains for consideration is, whether the claimant is entitled for any enhancement in the compensation awarded by the Tribunal in the matter.
11. Admittedly, the Tribunal, even though made an attempt to discuss the entitlement of the compensation under different heads to the claimant, however, it ended up in assessing the compensation under the head of
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MFA No. 2730 of 2020medical expenses only, which is at `6,658/-, however, with respect to compensation under other heads, instead of assessing the entitlement of the claimant, the Tribunal, opining that a global compensation can be ordered, proceeded to award him a total compensation of a sum of `1,00,000/- as global compensation.
12. The learned counsel for the appellant (claimant) in his argument submitted that, the Tribunal ought to have calculated the compensation under different heads of entitlement for the claimant and should have arrived at a just and reasonable quantum instead of awarding a global compensation.
13. Per contra, the learned counsels for the respondent No.2 and respondent No.4 - Insurance Companies, in their brief argument submitted that, in the absence of necessary materials before it, the Tribunal has rightly assessed the global compensation and fixed it at a reasonable amount of a sum of `1,00,000/-, as such, the
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MFA No. 2730 of 2020same does not warrant any interference at the hands of this Court.
14. From a perusal of the record and the evidence led by the parties, both oral and documentary, it can be noticed that there are sufficient material to ascertain the quantum of compensation for the claimant under different heads.
15. The wound certificate at Ex.P-6 and the discharge card at Ex.P-10 coupled with the disability certificate at Ex.P-8 speaks about the nature of the injuries suffered by the claimant in the road traffic accident in question and those documents would go to show that, the claimant sustained injuries to his right hip causing fracture of postero superior rib of Acetabulum on the right side. X-ray report which is also referred to both in the discharge summary as well in the wound certificate confirms the same. The opinion of the Doctor, i.e. Dr. N. Venkatashiva Reddy, an Orthopedic Surgeon, who
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MFA No. 2730 of 2020was examined as PW-2, is also on the similar line. According to the discharge card at Ex.P-10, the claimant was treated as an in-patient in the District Hospital, Chitradurga, for a period of one month from the date 17-05-2018 to the date 18-06-2018, as such, he should have necessarily suffered considerable pain and agony. Thus, he is entitled for a compensation of a sum of `30,000/- under the head 'injury, pain and sufferings' suffered by him, in the road traffic accident.
16. Though the claimant, as PW-1 has stated that, at the time of the road traffic accident, he was doing agriculture and milk vending business and was earning a sum of `20,000/- per month, but admittedly, there are no documents to support his said contention, as such, a notional income is required to be taken in the instant case. The road traffic accident in the instant case has occurred on the date 17-05-2018. A large number of the Motor Accident Claims Tribunals in the State are taking notional income for the said year 2018 at `12,500/- per month, as
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MFA No. 2730 of 2020such, in the instant case also, the notional income of the claimant has to be taken at a sum of `12,500/- per month. The discharge summary would go to show that he was in-patient in the said Hospital for a period of one month. As such, it has to be taken at the lowest end that he was laid up for a period of one month. Thus, towards loss of income during the laid up period, the claimant is entitled for a sum of `12,500/-.
17. The claimant has contended that towards medical expenses, he has spent a sum of `1,00,000/-, however, admittedly, there are no medical bills to support his said contention. On the other hand, the discharge card at Ex.P-10 shows that he was treated as an in-patient in a Government Hospital at Chitradurga, as such, it is unbelievable that he has incurred such an expense towards the medical expenses. On the other hand, the medical bills produced by him at Ex.P-13 with the medical prescriptions at Ex.P-12 though arrives at a sum of `10,933/- in total, however, after deducting the repetitive
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MFA No. 2730 of 2020bills including the one for CT scan, the total eligible amount towards medical expenses would be a sum of `6,658/-, which, in fact is the assessment made by the Tribunal also. As such, towards the medical expenses, the claimant is held entitled for a compensation of a sum of `6,658/-.
18. Towards nutritious food, conveyance, attendant charges and other incidental expenses for the said laid up period of one month in the Hospital, I am of the view that, a reasonable compensation would be a sum of `15,000/-, as such, the claimant is entitled for a sum of `15,000/- under the said head.
19. Due to the fracture injury suffered by him, i.e. posterior dislocation of right femoral head along with displaced fracture of posterior rim of acetabulum, the claimant should have suffered loss of amenities and comforts in life, as such, towards loss of amenities and
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MFA No. 2730 of 2020comforts in life, he is entitled for a compensation of a sum of `10,000/-.
20. The claimant has also contended that due to the injuries suffered by him, he has suffered permanent partial disability and has suffered loss of income as he could not continue his avocation as an agriculturist and also as a milk vendor. In that regard, he got examined an Orthopedic Surgeon as PW-2, who has stated that he has examined the claimant and perused the discharge summary and other details and has assessed the disability. The said witness apart from identifying the disability certificate at Ex.P-8 as issued by him, has noticed the presence of disability with the claimant and assessed it at 32% towards functional disability. Further, in his cross-examination, PW-2 has fairly stated that, except the discharge summary produced by the claimant before him, he has not gone through any other document for assessment of the disability. Thus, it is only based upon the discharge summary and the clinical examination
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MFA No. 2730 of 2020of the claimant, he (PW-2) has assessed the disability. However, the very same witness in his cross-examination has stated that the said disability of 32% is only to a particular limb whereas to the whole body, the said disability would be only at 5%. As such, it is the said 5% disability to be taken into consideration as the percentage of disability for assessing the loss of future income on account of disability.
Undisputedly, the age of the claimant was 45 years as at the time of the occurrence of the road traffic accident, as can be seen in the wound certificate at Ex.P-6, charge sheet at P-7, discharge card at Ex.P-10 and the disability certificate at Ex.P-8 and also by the evidence of PW-2. As such, the proper multiplier applicable is '14'. Thus towards loss of future income, the appellant/claimant is entitled for a compensation of a sum of `1,05,000/- (i.e. `12,500/-x12x'14'x5/100).
21. Barring the above, the claimant is not entitled for compensation under any other heads.
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MFA No. 2730 of 2020
22. Thus, as analysed above, the claimant is entitled for a modified compensation as tabulated below:
Sl.
Particulars Amount in `
No.
1 Injury, Pain and sufferings 30,000-00
2 Loss of income during laid-up period 12,500-00
3 Medical expenses 6,658-00
4 Nutritious food, conveyance and 15,000-00
attendant charges
5 Loss of amenities and comforts in life 10,000-00
6 Loss of future income on account of 1,05,000-00
permanent disability
Total 1,79,158-00
Since the quantum of compensation awarded by the Tribunal at a sum of `1,00,000/- is in short by a sum of `79,158/-, for the said enhancement of a sum of `79,158/- only, the impugned judgment and award deserves to be interfered with.
Accordingly, I proceed to pass the following :
ORDER [i] The appeal filed by the claimant stands allowed in part;
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[ii] The impugned judgment and award passed by the Court of the learned I Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal No.-IV, at Chitradurga, dated 23-12-2019, in M.V.C.No.254/2019, is hereby modified to the extent that the compensation awarded at `1,00,000/- is enhanced by a sum of `79,158/- (Rupees Seventy Nine Thousand One Hundred and Fifty Eight only), thus fixing the total compensation at a sum of `1,79,158/- (Rupees One Lakh Seventy Nine Thousand One Hundred and Fifty Eight only).
[iii] The order of the Tribunal with respect to apportionment of liability among the respondents at 25% on the part of the respondents No.1 and 2 (being the owner and insurer of the Motor Lorry bearing registration No.RJ-01/GB-8625) and the remaining 75% upon the respondents No.3 and 4 (being the
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owner and insurer of the Motor vehicle Maxi Cab bearing registration No.KA-34/A-7102) remains unaltered and un-modified.
[iv] The respondents 1 and 2 and respondents 3 and 4 are directed to deposit their respective share of the enhanced compensation with interest, within three weeks from today.
[v] Upon the deposit of the enhanced sum with interest by the respondents, as directed above, the entire sum be released in favour of the claimant (appellant herein), after his due identification and in accordance with law.
[vi] The rest of the order of the Tribunal with regard to rate of interest, and the terms of release of awarded sum, etc. remains unaltered and unmodified.
Draw the modified award accordingly.
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Registry to transmit a copy of this judgment to the concerned Tribunal along with its records, without delay.
Sd/-
JUDGE BMV* List No.: 1 Sl No.: 53