Karnataka High Court
Purandara vs Hariprasad C B on 14 January, 2020
Author: H T Narendra Prasad
Bench: H. T. Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JANUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.2146/2015(MV)
BETWEEN:
PURANDARA
S/O NARAYANA @ NARAYANAGOWDA
AGED ABOUT 25 YEARS
REPRESENTED BY GUARDIAN
HIS FATHER
NARAYANA @ NARAYANAGOWDA
S/O LATE SHANTHAPPA GOWDA
AGED 55 YEARS
KYAMANAHALLI VILLAGE
HANABALU HOBLI
SAKALESHPUR TALUK-573134.
... APPELLANT
(BY SRI. JAGADEESH H.T. ADV. )
AND
1. HARIPRASAD C.B.
S/O BARAVEGOWDA
HANUBALU VILLAGE AND POST
SAKALESHPUR TALUK-573134.
2. THE MANAGER(CLAIMS)
UNIVERSAL SOMPO GENERAL INSURANCE
COMPANY LTD.,
K.L.S. TOWER, PLOT NO.EL-94
2
MIDC, MAHAPE, NAVI MUMBAI
MAHARASHTRA-400710.
... RESPONDENTS
(BY SRI. S.V.HEGDE MULKHAND, ADV. FOR R2,
NOTICE TO R1 IS DISPENSED WITH
V/O DATE:24.01.2017)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:28.04.2014 PASSED IN MVC.NO.1928/2011 ON
THE FILE OF THE SENIOR CIVIL JDUGE & JMFC, MACT,
SAKLESHPUR, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the father of the claimant challenging the judgment and award dated 28.4.2014 passed by the Senior Civil Judge and MACT, Sakaleshpur in MVC 1928/2011.
2. Brief facts of the case:
On 24.2.2011 at about 4.00 p.m. when the claimant and her sister Kusuma were traveling in the motorcycle bearing Registration No.KA-46-E-8984 3 from Sakaleshpur to Hanbal, at that time, the driver of canter lorry bearing Registration No.KA-46-2610 came in a rash and negligent manner and dashed against the motorcycle and caused accident. As a result, he sustained grievous injuries and immediately he was shifted to Crawford hospital Sakaleshpur and then shifted to Government Hospital Hassan. Later he was shifted to Father Muller Medical College Hospital, Mangalore and he lost his memory for four months. Hence, the father of the claimant filed a claim petition before the Tribunal as natural guardian of the claimant. In order to support his case, the father of the claimant is examined as PW-1 and Dr.Jakob Chacko and Dr.C.K.Ballal are examined as PWs-2 & 3 respectively and submitted 191 documents. On the other hand, the Insurance Company has neither examined and witnesses nor produced any documents. After appreciation of the evidence, the 4 Tribunal granted compensation of Rs.9,31,182/ with interest at 6% p.a. Being aggrieved by the same, the present appeal is filed.
3. The learned counsel for the claimant has raised the following contentions:
Firstly, the claimant claims that he was working as mason and earning Rs.10,000/- per month. But the Tribunal has taken the income of the claimant as Rs.3,750/- per month, which is on the lower side.
Secondly, PWs-2 and 3 have deposed that the claimant has suffered 75% disability to the whole body and he is unable to do any work. But the Tribunal has taken the whole body disability at 70% while calculating the 'loss of future income'.
Thirdly, the claimant is aged about 20 years at the time of the accident. He was treated as inpatient for a period of 134 days. The Tribunal has failed to grant any compensation under the head 'loss of 5 income during laid up period' and 'loss of marriage prospectus'.
Hence, the learned counsel for the claimant prays for allowing the appeal.
4. Per contra, the learned counsel for the Insurance Company has raised the following counter- contentions:
Firstly, even though the claimant claims that he was working as mason and earning Rs.10,000/- per month, he has not produced any document to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally.
Secondly, the Tribunal considering the evidences of PWs-2 and 3 and nature of injuries has rightly assessed the whole body disability at 70%.
Thirdly, the Tribunal on appreciation of oral and documentary evidence has granted just and reasonable compensation.6
Hence, the learned counsel for the Insurance Company prays for dismissal of the appeal.
5. Heard the learned counsel for the parties. Perused the records.
6. It is not in dispute that the claimant had sustained injuries in a road traffic accident occurred on 24.2.2011 due to rash and negligent driving of the offending vehicle by its driver.
7. The claimant claims that he was doing mason work and earning Rs.10,000/- per month. But the same is not established by producing any documents. Therefore, the Tribunal is left with no other option, but to asses the income of the claimant notionally. In catena of cases, this Court has relied upon the Chart prepared by this Court for the purpose of deciding the matters at Lok Adalath. According to the Chart, for an accident of the year, 2011, the 7 income should be taken notionally as Rs.6,500/- per month. Therefore, the learned Tribunal is unjustified in assessing the claimant's income as merely Rs.3,750/- per month. Therefore, this Court enhances the claimant's income from Rs.3,750/- to Rs.6,500/- per month.
8. The claimant was treated as inpatient for a period of 134 days in the hospital. As per the testimony of the claimant coupled with that of PWs-2 and 3, the nature of injuries suggests that the claimant must have been under rest and treatment for a period of 4 months. But the Tribunal has not granted any compensation under the head 'loss of income during laid up period'. Accordingly, the claimant is entitled for compensation of Rs.26,000/- (6,500x4 months) under this head.
8
9. The doctors i.e., PWs-2 and 3 who treated the claimant in their evidences have deposed as follows:
PW-2, Dr. Jacob Chacko, Orthopedic Surgeon of Father Muller Medical College Hospital, Mangalore in his evidence has deposed that the claimant was admitted to their hospital on 25.02.2011 alleged history of RTA on 24.02.2011 at about 4.00 p.m. at Sakaleshpur. The following injuries are noted:-
a) Head injury
b) Fracture of right shoulder(Humorous)
c) Fracture of 3rd rib of right side
d) Collapses of lung
e) Right side premotherax
f) Fracture neck of humorous(right side)
g) Right wrist contusion Due to the unconsciousness of the patient they have not operated to the said injuries. Tracheotomy was done in order to do unutilation of patient. He further 9 deposed that Glasgow coma scale was 4/15 regarding to head injury. The patient was discharged on 06.06.2011. Later patient was readmitted to their hospital on 03.05.2012. They examined the patient on the same day, the fracture of right shoulder (Humorous) was mal united. On 23.05.2012 surgery was done and hemiarthoplasy was done and joint ball was replaced and uncemented shoulder joint replacement was done. As per the records, the patient was had brachial flaxes injuries. The above said injury Nos.1 to 6 are grievous in nature and injury No.7 is simple in nature. The patient was discharged on 03.06.2012.
Further PW-2 deposed that he examined the claimant. As per examination on 07.04.2014, the petitioner has got gross restrictions of shoulder movement and weakness of muscles of the right upper limb. He was not able to function as maistry or 10 even helper labour, as he cannot use right hand usefully, functionally. As per the Central Government guidelines, disability of the right upper limb is 75% and in respect of the whole body, the patient was only 50% at function his right hand is disabled.
PW-3 is another doctor, who has given treatment to the petitioner, who is working as Neurologist in Father Muller Medical College Hospital, Mangalore. He also deposed in his evidence that the petitioner was admitted to their hospital on 25.02.2011 under the history of RTA on 24.02.2011 at about 4.00 p.m. He deposed that, he examined the petitioner regarding head injury only and treated him. In respect of the same, petitioner sustained deep head injury. As per CT scan the brain of the petitioner was swollen and inner brain i.e. brain stem also injured and blood clotted in the said brain stem. For the said injuries, he had given treatment to the petitioner to avoid the 11 fits. The petitioner Glasgow coma scale is 4/45, but normal human beings Glasgow coma scale is 15/15. Petitioner is unable to breathing with the help of lungs and artificial respiration adapted to the petitioner with punching the lungs. At the time of discharge, the petitioner in the said hospital is Glasgow coma scale is improved i.e. 9/15 and petitioner unable to talk, because of tracheotomy, petitioner right side body strength is decreased and there is a chance of the petitioner loss his memory. Considering all these things, he deposed that the petitioner suffered from 70% permanent disability regarding his head injury.
10. Taking into consideration the evidences of the doctors and claimant and considering the injuries mentioned in the wound certificate, the whole body disability can be taken at 80% as against 70% assessed by the Tribunal. The claimant is aged about 20 years at the time of accident, and the multiplier 12 applicable to his age group is 18. His income is assessed at Rs.6,500/- per month. Therefore, the 'loss of future income' works out to Rs.11,23,200/- (6500 x 12 x 18 x 80%) and it is awarded as against Rs.5,67,000/- awarded by the Tribunal.
11. The claimant is aged about 20 years at the time of accident. He has sustained the above mentioned injuries and has to undergo the disability throughout his life. The Tribunal is not justified in not granting any compensation under the head 'loss of marriage prospectus'. Considering the age of the deceased and injuries sustained by him, the claimant is entitled for compensation of Rs.50,000/- under the ad 'loss of marriage prospectus'.
12. The compensation awarded by the Tribunal under other heads remains undisturbed. 13
13. For the reasons stated above, this appeal is partly allowed. The judgment and award of the Tribunal stands modified. The claimant is entitled to receive the following compensation:
As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 75,000 75,000 Medical expenses 1,29,182 1,29,182 Attendant charges 50,000 50,000 Special diet 15,000 15,000 Conveyance charges 20,000 20,000 Loss of marriage 0 50,000 prospectus Loss of income during 0 26,000 laid up period Loss of future income 5,67,000 11,23,200 Loss of amenities 75,000 75,000 Total 9,31,182 15,63,382
14. The Insurance Company is directed to deposit, with the learned Tribunal, the entire compensation amount, along with an interest @ 6% per annum from the date of filing of the claim petition till the date of realization excluding interest for the delayed period of 229 days in filing the appeal, within 14 a period of three months from the date of receipt of the certified copy of this judgment.
The deposit and release of amount shall be in terms of the award of the Tribunal.
Sd/-
JUDGE DM