SRI DHIRAJ v. SRI MAHUKAR S KUNDAR

(BY SRI. D. VIJAYAKUMAR., ADVOCATE FOR R2, R1 IS SERVED AND UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.07.2022 PASSED IN MVC NO.714/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL HAVING BEEN HEARD AND RESERVED ON

17.03.2026 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, P SREE SUDHA J., DELIVERED THE FOLLOWING: CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA - 3 - NC: 2026:KHC:23236 MFA No. 4821 of 2024 HC-KAR CAV JUDGMENT Common Award is passed in MVC Nos.713 of 2018 and 714 of 2018 by the Court of Senior Civil Judge and Additional MACT, Kundapura on 20.07.2022.

2. On 06.04.2018, while Ganesh Poojary, petitioner in MVC No.713 of 2018 was proceeding on his motor cycle bearing No.KA-20-EN-5465 along with Dhiraj, pillion Rider, who was petitioner in MVC No.714 of 2018, and when they reached near Matapadi Bridge, Udupi Taluk, auto rickshaw bearing No.KA-20-D-1232 belonging to the first respondent came in a rash and negligent manner in front of the motorcycle, suddenly took a U-turn to the right side without giving any signal and dashed the motorcycle. As a result, the petitioners fell down and sustained injuries. They filed a claim application claiming compensation of Rs.9,10,000/- and Rs.19,25,000/- respectively with interest. The Tribunal, considering the entire evidence on record, granted the compensation of Rs.4,96,119/- and Rs.10,36,950/- respectively with interest at the rate of 6% per annum from the date of petition till realisation. - 4 - NC: 2026:KHC:23236 MFA No. 4821 of 2024 HC-KAR

3. This appeal is filed by the petitioner-claimant against the judgment and award of the Tribunal passed in MVC No.714 of 2018 mainly contending that he was a painter and earning Rs.20,000/- per month. Due to the injuries sustained in the accident, he could not earn and he lost his income. He was bed ridden and not in sound state of mind. The Tribunal has taken his income as Rs.12,500/- per month, which is on lower side and it has also granted meagre amount under the other heads. It is contended that C.W.1-Neurosurgeon has assessed 45% as the cognitive disability and there is no chance of improvement. But, the Tribunal has taken only 15% disability. Therefore, reasonable functional disability is to be assessed by the court. It is also contended that he was aged 20 years at the time of accident and he has lost his marriage prospects. P.W.1-mother of the petitioner stated that she was taking care of the petitioner after the accident and therefore, attendant charges is required to be awarded by applying the multiplier method. Future marriage prospects is not granted. Therefore, requested for enhancement of the compensation. - 5 - NC: 2026:KHC:23236 MFA No. 4821 of 2024 HC-KAR

4. Heard the learned counsel appearing for both sides.

5. As per Ex.P.3-Wound Certificate, the petitioner has sustained the following injuries:

1. Laceration 1x1 cm x bone deep over the head on left side, 4 cm above the left mastoid process,

2. Contusion, bluish, 2x2 cm over the head on left side, 5 cm above the left mastoid process,

3. Abrasion, reddish, 3x4 cm over front of the left knee joint,

4. Multiple abrasions, reddish over an area of 4x3 cm over back of right hand, varying in sizes from 0.5x1 cm to 0.5x0.5 cm, 6 cm below the right wrist.

5. Multiple abrasions, reddish was present over back of left hand, over an area of 2x2 cms, varying in sizes from 0.5x0.5 cm to 0.5x0.3 cm starting from the base of left middle finger.

6. Left sided raccoon eye noted. Out of the said injuries, injury Nos.1, 2 and 6 are grievous in nature.

6. The petitioner examined doctor as C.W.1 and he has stated that the petitioner sustained head injury and multiple - 6 - NC: 2026:KHC:23236 MFA No. 4821 of 2024 HC-KAR lacerations and contusions on various parts of his body. Thus, the Tribunal has taken the disability as 15%. The date of birth of the petitioner was mentioned as 01.07.1998 as per Adhaar Card, and the accident occurred in the year 2018, as such, his age is to be considered as 20 years as on the date of accident and the relevant multiplier is 18. Though, the petitioner has stated that he was earning Rs.20,000/- per month, he has not filed any income proof. As the accident occurred in the year 2018, the Tribunal has rightly considered his notional income as Rs.12,500/- per month and also added 40% towards future prospects it needs no interference.

7. Learned counsel or the petitioner-claimant stated that doctor assessed the cognitive disability as 45% and also issued disability certificate to that effect and stated that there is no chance of recovery and there is no chance of improvement. Even the mother of the petitioner represented him and as he was not in a sound state of mind. She filed claim petition as a natural guardian. In the disability certificate, it is clearly stated that the petitioner sustained cognitive disability of 45%. In this regard, the learned counsel has relied upon the judgment - 7 - NC: 2026:KHC:23236 MFA No. 4821 of 2024 HC-KAR of the Hon'ble Supreme Court in the case of KAJAL VS. JAGDISH CHAND AND OTHERS reported in (2020)4 SCC 413, wherein the Hon'ble Supreme Court Head notes A,E and F and at paragraphs 5, 11 and 15 has held as follows: diet, special A. XXX claimants entitled to compensation for: (i) loss of earning: (ii) medical expenses, transportation, attendant charges, etc.; (iii) loss or diminution to pleasures of life by loss of a particular part of body; and (iv) loss of future earning capacity - Damages pecuniary as well as non-pecuniary. have to be assessed rupees and paise, while it is impossible to equate human suffering and personal deprivation with money - However, Court has to make a judicious attempt to award damages, so as to compensate claimant for the loss suffered by victim - Which should not be assessed very conservatively, d but not so liberally so as to make it a bounty to in mind degree of claimant, keeping deprivation and loss caused by such deprivation, which can be termed as just compensation - It should be substantial to compensate injured for deprivation suffered by injured throughout his/her life - They should not be token damages - Compensation has to be given once and for all - Victim doing no wrong, courts must take care to give him full fair compensation for that which he has suffered Tribunals should always remember that damages in all these cases should enable even a tortfeasor to amply atone for his misadventure. E. XXX - Multiplier system, held, should be followed not only for compensation for loss of income but also for attendant charges, etc. Multiplier system is the most optimal as - 8 - NC: 2026:KHC:23236 MFA No. 4821 of 2024 HC-KAR it factors in inflation rate, rate of interest, longevity and also uncertainties of life, to ensure award of "Just compensation" F. Motor Vehicles Act, 1988-S. 166 Permanent total disability Just compensation Scope of Non-pecuniary damages - Pain, suffering, loss of amenities High Court awarded only Rs 3,00,000 - Supreme Court having held in similar cases that it should be at least Rs 6,00,000, for disability more than 90% In present case, in addition to 100% physical disability, young girl suffering from severe incontinence, severe hysteria and above all left with a brain of a nine-month-old child-In present case, even after taking a very conservative view of matter an amount payable for pain and suffering should be at least Rs 15,00,000 eliberal XXXX Courts or Tribunals in a case of 100% disability, especially mental disability also, awarding should compensation - This child will remain bedridden for life Girl who will physically become a woman but witt mentally remain a 9-month-old child, would miss out on playing with friends Cannot communicate; cannot enjoy pleasures of life; cannot even be amused by watching cartoons or films; will miss out fun of childhood, excitement of youth: pleasures of a marital life and motherhood, let alone grandchildren - A vegetable existence - 9 - NC: 2026:KHC:23236 MFA No. 4821 of 2024 HC-KAR

5. The principles with regard to determination of just compensation contemplated under the Act are well settled. The injuries cause deprivation to the body which entitles the claimant to claim damages. The damages may vary according to the gravity of the injuries sustained by the claimant in an accident. On account of the injuries, the claimant may suffer consequential losses such as: (i) loss of earning; (ii) expenses on treatment which may include medical expenses, transportation, special diet, attendant charges, etc., (iii) loss or diminution to the pleasures of life by loss of a particular part of the body, and (iv) loss of future earning capacity. Damages can be pecuniary as well as non- pecuniary, but all have to be assessed in rupees and paise.

6. It is impossible to equate human suffering and personal deprivation with money. However, this is what the Act enjoins upon the courts to do. The court has to make a judicious attempt to award damages, so as to compensate the claimant for the loss suffered by the victim. On the one hand, the compensation should not be assessed very conservatively, but on the other hand, the compensation should also not be assessed in so liberal a fashion so as to make it a bounty to the claimant. The court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. Such compensation is what The compensation or damages assessed for personal injuries should be substantial to compensate the compensation. termed - 10 - NC: 2026:KHC:23236 MFA No. 4821 of 2024 HC-KAR injured for the deprivation suffered by the injured throughout his/her life. They should not be just token damages.

11. XXX In cases of grave injury, where the body is wrecked or the brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity : There should be some measure of uniformity in awards so that similar decisions are given in similar cases; otherwise in the there will be great dissatisfaction community, and much administration of justice. Thirdly, predictability : Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, a thing very much to the public good.” criticism of

15. XXX “9. Broadly speaking while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant : (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include : (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in the future; (ii) damages to compensate for the loss of - 11 - NC: 2026:KHC:23236 MFA No. 4821 of 2024 HC-KAR amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for loss of expectation of life i.e. on account of injury the normal longevity of the person (iv) inconvenience, discomfort, disappointment, frustration and mental stress in life.” hardship, shortened; concerned

22. The attendant charges have been awarded by the High Court @ Rs 2500 per month for 44 years, which works out to Rs 13,20.000/-. Unfortunately, this system is not a proper system. Multiplier system is used to balance out various factors. When compensation is awarded in lump sum, various factors are taken into consideration. When compensation is paid in lump sum, this Court has always followed the multiplier system. The multiplier system should be followed not only for determining the compensation on account of loss of income but also for determining the attendant charges, etc. This system was recognised by this Court in Gobald Motor Service Ltd. v. R.M.K. Veluswami. The multiplier system factors in the inflation rate, the rate of interest payable on the lump sum award, the longevity of the claimant, and also other issues such as the uncertainties of life. Out of all the various alternative methods, the multiplier method has been recognised as the most realistic and reasonable method. It ensures better justice between the parties and thus results in award of "just compensation" within the meaning of the Act.” - 12 - NC: 2026:KHC:23236 MFA No. 4821 of 2024 HC-KAR

8. The Learned counsel further relied upon the judgment of this Court in the case of SRI CHANDRA MOGAVEERA Vs. SRI GURURAJ POOJARY AND OTHERS decided in MFA No.7065 of 2016 dated 11.01.2023, in which it was held that when petitioner sustained head injury and suffered 40% of physical disability, he was considered to have 100% of physical disability. Therefore, the learned counsel requested this Court to consider disability of the petitioner as 100%. Therefore, this Court finds it just and reasonable to assess functional disability as 100%. If the disability is more than 20%, petitioner is entitled for future prospects as per the judgment in the case of New India Assurance Company Limited Vs. Abdul, son of Mehaboob Tahasildar and Others (M.F.A. No.103807/2016 c/w. M.F.A. No.103835/2016 decided on 27.05.2022). As the petitioner is aged 20 years, entitled for 40% towards future prospects. Thus, loss of future running capacity comes Rs.37,80,000/- (12,500 + 40% x 12 x 18 x 100%). Petitioner also incurred Rs.2,59,950/- towards medical expenses as per Exs.P9 to P56. Tribunal has already granted said amount and it is confirmed. - 13 - NC: 2026:KHC:23236 MFA No. 4821 of 2024 HC-KAR

9. The petitioner was admitted in the hospital for a period of 21 days. Considering the nature of injuries, the period of hospitalization and other relevant factors, the Tribunal has already granted the reasonable amounts under the other heads and they are confirmed and it needs no interference. However, the petitioner is not entitled for compensation towards the loss of income during laid up period as the disability is assessed by this Court as 100%.

10. Apart from that, the learned counsel for the petitioner has stated that the was aged 20 years at the time of accident and he lost prospects of marriage. Therefore this Court finds it reasonable to grant an amount of Rs.3,00,000/- towards marriage prospects.

11. Further, the petitioner has claimed that he is entitled for attendant charges by applying the multiplier method and he has to file a document to show that he availed the services of the attendant. His mother was taking care of him throughout. Therefore, he is not entitled for attendant charges as claimed by him. - 14 - NC: 2026:KHC:23236 MFA No. 4821 of 2024 HC-KAR

12. Thus, in all, the petitioner is entitled for the compensation of Rs.44,99,950/- with interest at 6% per annum as against Rs.10,36,950/- awarded by the Tribunal.

13. The award of compensation passed by the Tribunal is modified as under: Heads Amount in Rs.

1. Loss of future income

2. Medical expenses

3. Pain and Suffering

4. Loss of amenities

5. Conveyance, diet and attendant charges 37,80,000/- 2,59,950/- 80,000/- 40,000/- 40,000/-

6. Loss of marriage prospects 3,00,000/- Total 44,99,950/-

14. In the result, the following order is passed: (i) Appeal is allowed in part. (ii) The claimant is entitled for the total compensation of Rs.44,99,950/- with interest at 6% per annum from the date of petition till the date of realization. - 15 - NC: 2026:KHC:23236 MFA No. 4821 of 2024 HC-KAR (iii) The respondent insurance company has already deposited the award amount before the Tribunal, and therefore, they are directed to deposit the enhanced amount of Rs.34,63,000/- with interest at 6% per annum within one month from the date of this order. (iv) On such deposit, the mother of the petitioner, natural guardian, is permitted to withdraw the entire amount along with the interest accrued on it. Sd/- (P SREE SUDHA) JUDGE CS CT:NR List No.: 1 Sl No.: 83