Karnataka High Court
United India Insurance Co. Ltd vs Vishwaraja Kharvi on 20 October, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1 MFA NO.9170/2018 A/W
MFA NO.8511/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.9170/2018 A/W
M.F.A.NO.8511/2018 (MV-I)
IN MFA NO.9170/2018 :
BETWEEN:
SRI VISHWARAJA KHARVI
S/O NARAYANA KHARVI,
AGED ABOUT 26 YEARS,
R/O "NETHRAVATHI NILAYA"
NEAR MAHAKALI TEMPLE,
GANGOLLI VILLAGE,
KUNDAPURA TALUK-576201.
...APPELLANT
(BY SRI.NAGARAJA HEGDE, ADVOCATE)
AND:
1. SRI JHON S PINTO
S/O LATE JAROM PINTO,
AGED ABOUT 71 YEARS,
R/O NIRMALA VIHAR,
BUNDAR ROAD,
GANGOLLI VILLAGE,
KUNDAPURA TALUK-576201.
2. UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE KUNDAPURA,
SHRI LAXMI NARASIMHA COMPLEX,
KSRTC DEPOT, NH-66,
2 MFA NO.9170/2018 A/W
MFA NO.8511/2018
VADERHOBLI, KUNDAPURA TALUK-576201.
REP BY ITS BRANCH MANAGER
...RESPONDENTS
(BY SRI.RAVISH BENNI, ADVOCATE FOR R2,
R1-SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:05.07.2018
PASSED IN MVC NO.251/2017 ON THE FILE OF THE
ADDITIONAL DISTRICT JUDGE & ADDITIONAL MACT,
UDUPI (SITTING AT KUNDAPURA), KUNDAPURA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
MFA NO.8511/2018
BETWEEN
UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE, KUNDAPURA,
SHRI LAXMI NARASIMHA COMPLEX,
OPP KSRTC DEPOT, NH-66
VADERHOBLI, KUNDAPURA,
REP BY ITS DIVISIONAL MANAGER,
UDUPI-576101
...APPELLANT
(BY SRI. RAVISH BENNI, ADVOCATE)
AND
1 . VISHWARAJA KHARVI
S/O NARAYANA KHARVI,
AGED ABOUT 26 YEARS,
R/AT NETRAVATHI NILAYA,
NEAR MAHAKALI TEMPLE,
GANGOLLI VILLAGE,
KUNDAPURA TALUK
UDUPI DISTRICT-576216
3 MFA NO.9170/2018 A/W
MFA NO.8511/2018
2 . JHAN S PINTO
S/O JAROM PINTO,
AGE 70 YEARS,
R/O NIRMALA VIHAR,
BUNDERROAD,
GANGOILLI VILLAGE,
KUNDAPURA TALUK
UDUPI DISTRICT-576216
...RESPONDENTS
(BY SRI. NAGARAJA HEGDE, ADVOCATE FOR R1,
R2-NOTICE DISPENSED WITH V/O DATED:13/12/2018)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:05.07.2018 PASSED
IN MVC NO.251/2017 ON THE FILE OF THE ADDITIONAL
DISTRICT JUDGE & ADDITIONAL MACT, UDUPI,
[SITTING AT KUNDAPURA], KUNDAPUR, AWARDING
COMPENSATION OF RS.5,47,840/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE M.F.AS. COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as 'MV Act' for brevity) challenging the judgment and award dated 05.07.2018, passed in M.V.C.No. 251/2017, on the file of the Motor Accident Claims Tribunal, Udupi (Sitting at Kundapura), Kundapura, (hereinafter referred to as 'the Tribunal' for brevity). 4 MFA NO.9170/2018 A/W MFA NO.8511/2018
MFA No.9170/2013 is filed by the appellant- claimant seeking enhancement of the compensation awarded by the Tribunal.
MFA No.8511/2018 is filed by the appellant- Insurance Company of the offending vehicle challenging the quantum and for reducing the compensation amount awarded by the Tribunal. Brief facts:
2. On 10.10.2016 at about 11.00 a.m., the appellant-claimant was proceeding on his motor cycle bearing registration No.KA-20-EG-8398 from Gangolli side towards Maravanthe side in a very slow and careful manner, when the said motor cycle reached Prarthana Paper owner house Cross, Nayakwadi, Gujjadi Village, Kundapura Taluk, at that time another motor cycle bearing registration No.KA-20-K-6028 belonging to the first respondent ridden by its owner in a rash and negligent manner came from western 5 MFA NO.9170/2018 A/W MFA NO.8511/2018 side of the mud road and dashed the claimant's motor cycle. Due to the said impact, the claimant sustained grievous injuries all over his body. Immediately, after the accident, the claimant was shifted to Adarsha Hospital, Udupi wherein he was treated as inpatient.
3. Hence, a claim petition was filed by the appellants-claimants under Section-166 of the M.V. Act, claiming compensation for the injuries sustained in the accident. In pursuance of the Notice issued to respondent Nos.1 and 2, they appeared through counsels and filed separate written objections and denied the case.
4. To substantiate the contentions of the appellant-claimant, the claimant got himself examined as PW-1 and the Doctor was examined as PW-2 and got marked documents at Exhibits-P1 to P13. The respondents neither examined any witnesses nor produced any documents.6 MFA NO.9170/2018 A/W
MFA NO.8511/2018
5. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.5,47,840/- along with interest at the rate of 6% per annum on Rs.4,32,840/-
(excluding interest on 'Future Medical Expenses' of Rs.1,15,000/-) from the date of petition till the date of realization. The Tribunal held respondent Nos.1 and 2, jointly and severally liable to pay the compensation with costs and insurance company liable to pay the compensation.
6. Heard arguments of the learned counsel for the appellant-claimant and the learned counsel for the insurance company and perused the materials on record.
7. The learned counsel for the appellant- claimant submitted that the quantum of compensation awarded under various heads is on lesser side. 7 MFA NO.9170/2018 A/W MFA NO.8511/2018 Therefore, seeks for enhancement of the compensation.
8. On the other hand, the learned counsel appearing for the appellant-insurance company submits that the Tribunal has awarded excess compensation and hence prays for reducing the compensation amount awarded.
9. The compensation awarded by the Tribunal is as follows:
Towards Pain, Injuries And : Rs. 60,000/- Suffering Towards Medical Expenses : Rs. 1,11,343/- Future Medical Expenses : Rs. 1,15,000/- Loss of earning during treatment : Rs. 6,000/-
Bed rest : Rs. 18,000/-
Loss of Future Earning capacity : Rs. 2,29,500/-
Conveyance, nourishment and : Rs. 8,000/-
attendant charges
TOTAL : Rs. 5,47,843/-
10. Exhibit-P3 is the Wound Certificate, which shows that the claimant had suffered the following injuries:8 MFA NO.9170/2018 A/W
MFA NO.8511/2018
"i. Reddish Abrasion on the right side of forehead, ii. Redding abrasion on the nose, iii. Swelling and deformity of right side of lower jaw with CT scan showing fracture of right parasymphyseal fracture of mandible with left angle of left mandible fracture, iv. Reddish abrasion on upper right forearm, v. Reddish abrasion on left knee, vi. Reddish abrasion on right knee, vii. Reddish abrasion on left foot."
11. Injury No.(iii) shows that there is fracture of parasymphyseal fracture of mandible of left ankle of left mandible fracture, the above said injury is grievous in nature. The claimant was hospitalized for 20 days as inpatient. Considering the nature of injuries sustained by the claimant above discussed, the compensation awarded for 'Injuries, Pain And Suffering' at Rs.60,000/- is appropriate. Hence, there is no need to make any interference and the same is kept in tact.
9 MFA NO.9170/2018 A/WMFA NO.8511/2018
12. The Tribunal has awarded a compensation of Rs.1,11,343/- towards 'Medical Expenses'. The same is as per the actual medical receipts and bills produced. Therefore, the same needs no interference and is kept in tact.
13. The Tribunal on the basis of the evidence of PW-2 - Doctor, wherein he has stated that the claimant had underwent several surgeries to the mandible bone and for removal of fixture and for other treatment in future has stated that the claimant may require Rs.80,000/- and for inserting new tooth a sum of Rs.35,000/- is required. Accordingly, the Tribunal has granted compensation. But upon considering the evidence this is not evidenced by any documentary evidence. But it is a merely the opinion of the Doctor PW-2, for replacement of tooth in the place broken tooth as there are more than five tooth are broken. Therefore, for fixing of artificial tooth, the same 10 MFA NO.9170/2018 A/W MFA NO.8511/2018 requires Rs.35,000/- as stated by the Doctor-PW-2 is correct. But the sum of Rs.80,000/- stated by the Doctor for removal of fixtures is on higher side considering the nature of the injuries sustained and the same is reduced to Rs.50,000/-. Therefore, towards 'Future Medical Expenses', a total compensation of Rs.85,000/- is awarded instead of Rs.1,15,000/-.
14. The Tribunal has awarded a sum of Rs.2,29,500/- towards 'Loss of Future Earning Capacity', by holding the income at Rs.9,000/- and considering the disability at 12% multiplied by the relevant multiplier. The learned counsel for the insurance company submitted that the claimant had not suffered any fracture to the limbs and sustained fracture of mandible bones which does not affect the working capacity of the claimant. Therefore, submitted that the said compensation under the head 'loss of 11 MFA NO.9170/2018 A/W MFA NO.8511/2018 earning capacity due to disability' cannot be sustained.
15. It is true that in the present case, the claimant has not sustained fracture to the limbs. It is the evidence of the Doctor - PW-2 that the claimant is not able to carry any heavy objects due to the fracture injury and the disability caused is to the mandible bone. For the profession of the claimant being Fish Boat Driver, physical strength is required, which the claimant is not able to properly do the same. Therefore, the claimant is to be compensated appropriately.
16. PW-2-Doctor who has treated the claimant has stated that claimant has suffered 12.5% towards whole-body. The 'Loss Of Future Income Including Loss Of Future Prospects' can be calculated on the principles laid down by the Hon'ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and 12 MFA NO.9170/2018 A/W MFA NO.8511/2018 Another reported in (2011) 1 SCC 343, wherein at para Nos.12, 13 and 19, guidelines regarding assessment of functional disability affecting the career of the injured was laid down, and the same is applied in the present case. Considering the evidence of the Doctor - PW-2 and the nature of injuries sustained as contended by the learned counsel for the appellant-claimant, the whole-body functional disability affecting the career and earning capacity is to be assessed and calculated. Further, the assessment of functional disability is not mathematical calculation bonded by any mathematical formulae. Therefore, considering the evidence of PW-2-Doctor and their evidence regarding quantum of disability, wherein it is the duty of the Court has to assess and calculate the functional disability affecting the career and earning capacity 13 MFA NO.9170/2018 A/W MFA NO.8511/2018 including future prospects in life. Therefore, considering the entire evidence on record facts and circumstances, it is just and proper to take 12.5% as 'functional disability' affecting the career and earning capacity and loss of future prospects in the life of the claimant.
17. The accident in question has occurred in the year 2016. Therefore, the notional income as recognized by the Karnataka State Legal Services Committee as per chart at Rs.9,500/- per month has to be taken instead of Rs.9,000/- per month as held by the Tribunal. The claimant was aged 26 years as on the date of the accident. Therefore, the appropriate multiplier applicable as per the judgment of the Hon'ble Supreme Court, in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another reported in AIR 2009 SC 3104, is '18'. Hence, the 'Loss Of Earning Capacity Due To Disability, Including Loss Of Future 14 MFA NO.9170/2018 A/W MFA NO.8511/2018 Prospects In Life' is recalculated and assessed as follows:
Rs.9,500 x 12.5% x 18 x 12 = Rs.2,56,500/-
18. The Tribunal has awarded a compensation of Rs.6,000/- towards 'Loss Of Earning During Treatment', and a sum of Rs.18,000/- towards 'Bedrest' which is one and the same. The Tribunal has held the notional income as Rs.9,000/- per month. Due to the injuries suffered the claimant would have been in bedrest for atleast two months, that is to be compensated by holding the notional income of Rs.9,500/- per month. Accordingly, a compensation of Rs.19,000/- is awarded under the head 'Loss Of Income During Laid Up Period along with Bedrest.
19. Further, the Tribunal has awarded a sum of Rs.8,000/- is awarded towards 'Conveyance, Nourishment and Attendant Charges', which is on 15 MFA NO.9170/2018 A/W MFA NO.8511/2018 lower side and hence a sum of Rs.20,000/- is awarded under the said head.
20. The Tribunal has not awarded compensation towards 'Loss of Amenities'. The Tribunal has narrated that due to the injury suffered in the accident, the claimant is not able to eat properly and cannot chew the food. Hence, a sum of Rs.25,000/- is awarded under the head 'Loss Of Amenities'.
21. Hence, the appellant is entitled for a total enhanced compensation, under various heads as follows:
Pain, Injuries And Suffering : Rs. 60,000/- Kept in tact Medical Expenses : Rs. 1,11,343/- Kept in tact Future Medical Expenses : Rs. 85,000/- Loss of earning during treatment : Rs. 19,000/- (Rs.9,500 x 2 months) Future Earning Capacity : Rs. 2,56,500/- (Rs.9,500 x 12.5% x 18 x 12) Conveyance, Nourishment and : Rs. 20,000/-
Attendant Charges
Loss of Amenities : Rs. 25,000/-
TOTAL : Rs. 5,76,843/-
16 MFA NO.9170/2018 A/W
MFA NO.8511/2018
22. Therefore, the appellant-claimant is
awarded a total compensation of Rs.5,76,843/- as against the compensation awarded by the Tribunal at Rs.5,47,843/-. Hence, the appellant is entitled for an additional compensation of Rs.29,000/- (Rs.5,76,843-Rs.5,47,843), along with interest at 6% per annum from the date of filing of the petition till realisation. The insurance company is directed to deposit the amount of total compensation within eight weeks from the date of receipt of the certified copy of this judgment.
23. Accordingly, I pass the following:
ORDER i. MFA No.9170/2013 filed by the appellant-
claimant seeking enhancement of the compensation awarded by the Tribunal is allowed in part.17 MFA NO.9170/2018 A/W
MFA NO.8511/2018 ii. MFA No.8511/2018 filed by the appellant-
Insurance Company is allowed in part.
iii. The judgment and award dated
05.07.2018, passed in M.V.C. No.
251/2017, on the file of the Motor Accident Claims Tribunal, Udupi (Sitting at Kundapura), Kundapura is modified to the aforesaid extent.
iv. The appellant-claimant is entitled for an additional compensation of Rs.29,000/- (Rs.5,76,843 - Rs.5,47,843), along with interest at 6% per annum from the date of filing of the petition till realisation. v. The amount in deposit shall be transferred to the Tribunal forthwith. vi. 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. 18 MFA NO.9170/2018 A/W MFA NO.8511/2018 vii. Draw award accordingly. viii. No order as to costs.
Sd/-
JUDGE JJ