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2020 DIGILAW 1178 (KAR)

Raghavendra Achar v. Sudeer Shetty

2020-06-23

ALOK ARADHE, M.NAGAPRASANNA

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JUDGMENT M.Nagaprasanna, J. - This appeal, though listed for admission, is taken up for final disposal with the consent of the learned counsel appearing for the parties. 2. This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) by the claimants seeking enhancement of compensation determined by the Motor Accident Claims Tribunal ('Tribunal' for short) in its judgment and award dated 13.03.2015 in MVC.No.1047/2013. 3. Parties will be referred to as per their ranking before the Claims Tribunal. 4. Facts giving rise to the filing of the appeal briefly stated are that, on 10-08-2013 at about 10.00 p.m., the claimant was walking on the left side of the mud path of NH-66 and when he was near Shankar Rao House, Parampalli Village, Saligrama, a motorcycle bearing registration No.KA-20-ED-8798 came from Udupi side towards Saligrama side in a very high speed and rash and negligent manner and dashed against the claimant. Due to the impact of the accident, the claimant sustained grievous injuries. It transpires that the claimant was shifted to N.R.Acharya Hospital, Koteshwara, where he was admitted and took treatment as an inpatient from 10.08.2013 to 21.08.2013. Thereafter, the claimant contends that he took treatment as an outpatient and spent about Rs.95,000/- towards medical expenses, Rs.45,000/- for food and nourishment, Rs.40,000/- for conveyance charges and further Rs.65,000/- towards future medical expenses. 5. On sustaining injuries and the expenditure that he incurred as stated hereinabove, the claimant filed a claim petition under Section 166 of the Act, claiming compensation of Rs.27,45,000/- for the injuries sustained by him in road traffic accident that occurred on 10.08.2013, on the ground that he was working as a Manager at N.R. Acharya Memorial Hospital, Koteshwara and due to the accidental injuries suffered by him, he has lost his future income as he was terminated from his post. 6. On issuance of notice, respondent Nos.1 and 2 appeared before the Tribunal and respondent No.2 - Insurance Company filed its statement of objections admitting the policy in respect of the motorcycle involved in the accident but denied that the accident had taken place due to the rash and negligent riding of the motorcycle. It was also denied that the injuries sustained by the claimant was due to the accident. The age, avocation and income of the claimant was also denied. It was also denied that the injuries sustained by the claimant was due to the accident. The age, avocation and income of the claimant was also denied. It was also contended that the compensation sought was highly excessive and exorbitant. 7. The claimant in order to prove the case, examined himself as PW.1 and an Orthopedic Surgeon namely, Dr. Praveen Kumar Shetty, who treated him as PW.2 and produced 15 documents which were marked as exhibits P.1 to P.15. On the other side, the respondents did not adduce any evidence but got marked the insurance policy as exhibit R.1. The Tribunal on the basis of the evidence on record, awarded a compensation of Rs.4,81,090/- along with interest at 6% p.a., for the injuries sustained by the claimant in the accident. 8. We have heard Sri Pavan Chandra Shetty H., learned counsel for the appellant and Sri Ravi S. Samprathi, learned counsel for respondent No.2 and perused the records. 9. Learned counsel for the appellant contends that the Tribunal has grossly erred in taking the income of the claimant at Rs.8,000/- p.m. whereas, the claimant has produced his salary certificate Ex.P.8, to prove that he was earning Rs.17,000/- per month as the Manager at N.R.Acharya Memorial Hospital, Koteshwara. The appellant contends that the doctor PW.2, who treated the claimant had clearly deposed that he has assessed the disability to the whole body at 41% but the Tribunal ought not to have reduced to 20%, which is contrary to the evidence of the doctor, on its own accord. It is also contended that the compensation awarded on all other conventional heads are on the lower side and seeks enhancement of the same. 10. Learned counsel for the respondent No.2 Insurance Company would submit that the assessment of the Tribunal with regard to the disability is correct and does not call for any interference, as cogent reasons have been given by the Tribunal to reduce the disability from 41% to 20% and he would further submit that the compensation awarded on all other conventional heads are just and proper. 11. The only issue that falls for our consideration in the present appeal is with regard to the quantum of compensation awarded to the claimant. 12. 11. The only issue that falls for our consideration in the present appeal is with regard to the quantum of compensation awarded to the claimant. 12. Though the claimant claims that he was earning a salary of Rs.17,000/- per month and has produced the salary certificate to that effect as exhibit P.8, there is no proof of this document as no witness speaks of the authentication of the salary certificate. Since there is no evidence with regard to income of the claimant, the notional income as per the chart provided by the Karnataka State Legal Services Authority has to be taken. Since the accident has taken place in the year 2013, the notional income of the claimant as per the chart would be Rs.8,000/- p.m. Thus, the income of the claimant will have to be taken at Rs.8,000/- p.m. 13. The claimant had sustained the following injuries: "1. Comminuted distal radius fracture right side with 6x2 cms. Abrasion over right ulnar aspect of forearm and wrist. 2. Fracture base of middle phalanx of left middle finger. 3. Right knee haemathrosis with ACL injury." PW.2 is an Orthopedic Surgeon, who assessed the disability of the claimant and in the evidence, the doctor would clearly depose that he has assessed the disability of the claimant at 41% to the whole body. The same figure is sustained by PW.2 doctor in his cross-examination as well. Thus, the Tribunal could not have reduced the disability of the whole body from 41% to 20% contrary to the evidence of the doctor. Thus, the claimant would be entitled to a compensation towards loss of future earnings by taking the disability to the whole body at 41%. Since, he was aged 30 years, the multiplier of 17' is applicable and the claimant would be entitled to a compensation on loss of future earnings Rs.6,69,120/- (Rs.8,000/- x 12 x 17 x 41/100). 14. Insofar as the compensation on other heads are concerned, the compensation awarded by he Tribunal is just and proper compensation and does not call for interference by this Court. 14. Insofar as the compensation on other heads are concerned, the compensation awarded by he Tribunal is just and proper compensation and does not call for interference by this Court. The break up of the compensation is as follows: S. No. Description In MVC No. 1047 Of 2013 (in Rupees) Enhancement in MFA No. 5478 of 2015 (in Rupees) Total Compensation (in Rupees) 1 Pain and Suffering 50,000 - 50,000 2 Loss of Income during laid up period 48,000 - 48,000 3 Medical Bills 36,690 - 36,690 4 Loss of future earning capacity 3,26,400 3,42,720 6,69,120 5 Loss of amenities. 20,000 - 20,000 15. Thus, the claimant is entitled to total compensation of Rs.8,23,810/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. 16. Accordingly, the appeal stands disposed of with the modification of the award of the claims Tribunal to the aforesaid extent.