Karnataka High Court
Bhimaraya vs Rajendra And Anr on 1 February, 2024
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NC: 2024:KHC-K:1221
MFA No. 201799 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS. JUSTICE LALITHA KANNEGANTI
MISCL. FIRST APPEAL NO.201799 OF 2022 (MV-I)
BETWEEN:
BHIMARAYA
S/O MAREPPA NAIKODI,
AGE: ABOUT 38 YEARS,
OCC: COOLIE, NOW NIL,
R/O. RAJWAL, TQ. JEWARGI,
DIST. KALABURAGI
NOW RESIDING AT KADAGANCHI,
TQ. ALAND,
DIST. KALABURAGI-505311.
...APPELLANT
(BY SRI BHARAMAGOUDA K. PATIL, ADVOCATE)
Digitally signed
by KHAJAAMEEN
L MALAGHAN AND:
Location: High
Court of
Karnataka 1. RAJENDRA
S/O LATE GURULINGAPPA,
AGED ABOUT: 38 YEARS,
OCC: OWNER OF TUM-TUM
BEARING NO.KA-32-B-7350,
R/O: RAJWAL, TQ. JEWARGI,
DIST. KALABURAGI-585310.
2. THE MANAGER
CHOLAMANDALAM M.S.
GENERAL INSURANCE CO. LTD.,
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MFA No. 201799 of 2022
THROUGH BRANCH MANAGER,
LOCAL CLAIMS, 2ND FLOOR,
ARE HOUSE, 2 NSC BOSE ROAD,
CHENNAI-600001.
...RESPONDENTS
(BY SRI SUBHASH MALLAPUR ADV. FOR R2;
R1-V/O DATED 5/1/2023 NOTICE DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, PRAYING TO ALLOW THE ABOVE MISC. FIRST
APPEAL AND CONSEQUENTLY MODIFY THE JUDGMENT
AND AWARD DATED 20.03.2021 PASSED BY SENIOR
CIVIL JUDGE AND MACT, ALAND IN MVC NO.709/2018
AND ENHANCE THE COMPENSATION TO RS.9,30,000/-
PAYABLE WITH INTEREST AT 9% PER ANNUM.
THIS APPEAL, COMING ON FOR DISMISSAL, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Appeal is filed by the claimant aggrieved by the judgment and award passed in M.V.C. No.709/2018 by the Senior Civil Judge and M.A.C.T., at Aland, Kalaburagi District, dated 20.03.2021 seeking enhancement of the amount of compensation.
2. The claim petition was filed seeking compensation of an amount of Rs.15,00,000/-, for the -3- NC: 2024:KHC-K:1221 MFA No. 201799 of 2022 injuries suffered by the claimant in the road traffic accident. It is the case of the claimant that on 04.02.2017 while he was returning to his village boarded in a Tum- Tum, which is driven by its driver in a rash negligent manner and due to that the said vehicle turned turtled and the petitioner sustained injuries on his left thigh and other parts of the body. Immediately after the accident he was shifted to Medicare Hospital, Kalaburagi and he was in hospital from 04.02.2017 to 18.02.2017 and in Banale hospital from 02.03.2017 to 04.03.2017 and Dr. Raghoji Kidney Hospital, Solapur, from 24.05.2017 to 29.05.2017. He incurred a huge amount of Rs.2,00,000/-. The injuries that he has sustained have caused permanent disability and he cannot do the work as he was doing before accident and also he cannot stand long time and suffered weakness. According to the claimant, he was earning Rs.15,000/- per month by working as Coolie. As per the Wound Certificate he had sustained the following grievous injuries:
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1. Minimally displaced # of bilateral superior and inferior rami of public.
2. Communicated minimally displaced # roof of right acetabulum c antero medical displacement of right femoral head.
3. # Transverse process of L4, L5 vertebral on right side.
4. # of sacral ala c # extending along sacral oramma of S2, S3 and S4 vertebral on right side
3. As per the evidence of the Doctor, these injuries are grievous in nature and the claimant has total permanent disability of 34% to the whole body. But on the fact that he was not the treated Doctor, the Tribunal had assessed the disability at 12% and granted compensation under the following heads as per the table below:
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NC: 2024:KHC-K:1221 MFA No. 201799 of 2022 Heads Compensation Awarded 1 Pain and suffering : Rs. 30,000/- 2 Medical expenses : Rs. 1,26,999/-
Attendant, food and : Rs. 15,000/-
3
conveyance charges
4 Loss of income during
: Rs. 45,000/-
treatment period
5 Future medical expenses : Rs. 20,000/-
6 Loss of future earning : Rs. 2,20,320/-
capacity
7 Loss of amenities : Rs. 25,000/-
TOTAL : Rs. 4,82,319/-
4. This Court on 07.06.2023 has passed the following order:
"Learned counsel for the appellant submits that the claimant had suffered injury to his genital area, which was not assessed by the doctor. He further contended that the claimant is a bachelor and is unable to copulate. He therefore, prays that the claimant be referred to Medical Board for assessment of his ability -6- NC: 2024:KHC-K:1221 MFA No. 201799 of 2022 to copulate. In that view of the matter, the claimant is directed to appear before the Gulbarga Institute of Medical Sciences on 30.06.2023.
The Medical Board shall assess the ability of the claimant to copulate and submit its report to this Court by 07.07.2023.
The registry to issue appropriate communication to the Gulbarga Institute of Medical Sciences along with a copy of this order."
5. This Court passed another order on 28.07.2023 as below:
"The letter dated 15.07.2023
received from the Chairman, Medical
Disability Committee, Victoria Hospital,
Bengaluru is perused.
The appellant is directed to appear before the Medical Disability Committee, Victoria Hospital, Bengaluru on 17.08.2023."
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6. Pursuant to that orders passed by this Court, the Medical Board has given Certificate that the patient was examined and subjected to relevant tests in the hospital and as per the available test and examination including Penile Doppler, he is unable to get sufficient erection because of Anterial insufficiency and he could not deliver Semon for analysis as per pathologist. The Department of Psychiatry, Victoria Hospital, Bangalore, has given a report that Cross Sectional evaluation did not reveal any Psychiatric causes for inability to have erection.
7. Learned counsel appearing for the claimant submits that the Tribunal has granted a very meager compensation without considering the injuries that are sustained and impact of it is on the life of the petitioner. It is submitted that the petitioner had sustained 4th grievous injuries and under the head of pain and suffering only an amount of Rs.30,000/- is granted, which is on the lower side. It is further submitted that the Doctor had -8- NC: 2024:KHC-K:1221 MFA No. 201799 of 2022 assessed the disability at 34%, in fact, he had sustained injuries to kidney also. Just because the Doctor is not the treated Doctor, the Tribunal has taken disability at 12%. He submits that while analyzing evidence of the Doctor, the Tribunal have to independently analyse the same, but not on the ground that he is not a treated Doctor. He submits that the claimant is a bachelor and because this disability and inability in life his entire life is ruined. Under the head of loss of amenities, the Tribunal ought to have granted a considerable amount. It is submitted that the compensation that was awarded by the Tribunal is not just and reasonable compensation. When it comes to assessment of income of the claimant, he submits that it is the case of the claimant that he was earning Rs.15,000/- per month, the Tribunal had taken Rs.9,000/- as income, which is on the lower side.
8. Learned counsel appearing for the respondent- Insurance Company submits that the Tribunal had rightly not considered the evidence of the Doctor, who is not a -9- NC: 2024:KHC-K:1221 MFA No. 201799 of 2022 treated Doctor and taken the disability at 12%. He submits that on all other aspects the compensation awarded is reasonable and no grounds are made out for enhancement of the compensation.
9. Having heard the learned counsels on either side, perused the material on record.
10. The claimant had sustained as many as 4 grievous injuries and he was in hospital for 24 days. Under the head of 'pain and suffering' he is entitled for an amount of 'Rs.80,000/-'. Considering the hospitalization, under the head of 'attendant, food and conveyance' this Court is granting 'Rs.30,000/-'. Towards 'medical expenses', the Tribunal has rightly granted an amount of 'Rs.1,26,999/-' and no interference is called for.
11. It is the case of the claimant that he was earning Rs.15,000/- per month. No evidence is produced to that effect. This Court considering the chart prepared
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NC: 2024:KHC-K:1221 MFA No. 201799 of 2022 by the Karnataka Legal Services Authority, taking notional income at Rs.10,250/- per month as the accident is of the year 2017. With regard to disability, the Doctor has given Disability Certificate stating that there is a disability of 34% to the whole body. The Tribunal without any discussion and without any basis has just held that it is on the higher side and taken 1/3 of it. The disability to the whole body cannot be taken as 1/3. Another observation of the Tribunal is that he is not the treated Doctor. Just because he is not a treated Doctor, his evidence cannot be completely ruled out. Considering the evidence of the Doctor and the disability sustained and analysis of the Doctor, this Court is taking the disability at 20% to the whole body. Hence, under the head of 'loss of future income' this Court is granting (10,250/- x 12 x 17 x 20/100) an amount of 'Rs.4,18,200/-'.
12. Towards 'future medical expenses', the Tribunal has granted 'Rs.20,000/-' as there is no evidence. The same is just and proper and no grounds are
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NC: 2024:KHC-K:1221 MFA No. 201799 of 2022 made out for enhancing the compensation under the said head.
13. This Court considering the injuries, the hospitalization and the treatment undergone by the claimant, is granting five months salary (Rs.10,250/- x 5) 'Rs.51,250/-' under the head of 'loss of income during laid up period'.
14. Coming to the head of 'loss of amenities', as per the Certificate issued by the Medical Board the appellant is not able to get sufficient erection because of Anterial insufficiency and he is not in a position to deliver Seman for analysis. The Medical Board has opined that he is not able to Copulate at present. Considering the report placed before this Court by the Medical Board and the impact of it on the life of the claimant this Court is granting an amount of 'Rs.2,00,000/-' under the head of loss of amenities.
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15. Further in the light of the law laid down by the Hon'ble Supreme Court in the case of V. MEKALA vs. M. MALATHI AND ANOTHER1, the claimant is entitled for an amount of 'Rs.10,000/-' towards legal expenses.
16. Altogether the claimant is entitled to the compensation as under:
Heads Compensation
Awarded
1 Loss of income due to disability : Rs. 4,18,200/-
2 Pain and Sufferings : Rs. 80,000/-
Loss of Earning during laid up : Rs. 51,250/-
3
period
4 Attendant, Food and Nourishment : Rs. 30,000/-
5 Medical expenses : Rs. 1,26,999/-
6 Loss of Amenities & Future : Rs. 2,00,000/-
Discomfort
7 Legal Expenses : Rs. 10,000/-
8 Future Medical Expenses : Rs. 20,000/-
TOTAL : Rs. 9,36,449/-
1
(2014) 11 SCC 178
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MFA No. 201799 of 2022
17. Accordingly, the Appeal is allowed-in-part, enhancing the compensation amount from Rs.4,82,320/- to Rs.9,36,449/-.
i) The enhanced amount shall carry interest at 6% p.a., from the date of petition till the date of realization.
ii) The respondent - Insurance Company shall deposit the amount within a period of eight weeks from the date of receipt of copy of the judgment.
iii) Apportionment of deposit the release would be in terms of the order of the Tribunal.
iv) Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
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v) No costs.
Pending I.As., if any, shall stand closed.
Sd/-
JUDGE SBS List No.: 3 Sl No.: 18