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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
MISCELLANEOUS FIRST APPEAL NO.2473 OF 2017 (MV)
BETWEEN:
SRI NITHISH,
S/O VENKAPPA POOJARY,
AGED 27 YEARS,
RESIDING AT BANADKA HOUSE,
PADUMARNADU VILLAGE,
BELUVAI POST, MANGALURU,
D.K. - 574 213.
... APPELLANT
[BY SRI. JEEVAN K., ADVOCATE [PHYSICAL HEARING]
AND:
1. SRI MOHAMMED SHAKEER,
S/O ISMAIL,
AGED 45 YEARS,
R/AT SHAKEER MANZIL,
NEAR GOVT. HIGH SCHOOL,
KOTEBAGILU MOODABIDRI,
MANGALURU,
D.K. - 574 227.
2. THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD.,
1 FLOOR, NITHYANANDA COMPLEX,
2
NEAR BUS STAND, MOODABIDRI,
D.K. - 574 227
... RESPONDENTS
[BY SRI. SHIVARAJ PATIL, ADVOCATE FOR RESPONDENT
NO.2 [PHYSICAL HEARING;
R-1 SERVED AND UNREPRESENTED]
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988 AGAINST THE JUDGMENT AND AWARD DATED
23.08.2016 PASSED IN M.V.C.NO.573/2015 ON THE FILE
OF THE IV ADDL. DISTRICT JUDGE AND MEMBER, MACT,
D.K., MANGALURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the consent of learned Counsel for the parties, it is taken up for final disposal.
2. This appeal is filed by the claimant seeking enhancement of compensation awarded by the IV Additional District Judge and Member, MACT, D.K., 3 Mangaluru, (henceforth referred to as 'Tribunal') in MVC No.573/2015 dated 23.8.2016.
3. The appellant shall henceforth be referred as claimant while the respondents 1 and 2 shall be referred as owner and insurer of the bus bearing registration number KA-19-AA-2366.
4. The impugned judgment and award discloses that, on 6.2.2015, when the claimant was riding a motor bike bearing registration No.KA-19-EL-4088 from Kaikamba Junction towards Polali Dwara, along with a pillion rider, a bus bearing registration No. KA-19-AA-2366 (henceforth referred to as offending bus) driven in rash and negligent manner was steered from opposite direction which dashed against the motor bike of the claimant. As a result, the claimant and the pillion rider fell on the road. The claimant sustained forehead CLW fracture, left forearm DRUJ Fracture (wrist fracture), shoulder Crepitus fracture and right AC joint dislocation. The claimant was shifted to 4 Tejashwini hospital where he was admitted as an inpatient on 6.2.2015. The claimant contended that he was working as a Service Operator in Preethi Home Appliance Private Limited and was earning Rs.14,000/- per month along with Rs.400/- per day towards TA, DA and was earning up to Rs.15,000/- from servicing kitchen appliances at Srinidhi Service Centre. The claimant, therefore, alleged actionable negligence by the driver of the offending bus and thus, filed a claim petition under Section 166 of Motor Vehicles Act, 1988, claiming compensation of Rs.7,00,000/- from the owner and insurer of the offending said bus. The insurer contested the claim petition and contended that it was the claimant who was negligent and who contributed to the accident. The insurer disputed the fact that the offending bus was insured by it.
5. Based on the rival contentions of the parties, the claim petition was set down for trial. The claimant was examined as P.W.1 and he examined three other witnesses as P.Ws.2 to 4 and marked 21 documents as Exs.P.1 to 5 P.21. The insurer examined two witnesses as R.Ws.1 and 2 and marked the documents as Exs.R.1 and R.2.
6. Based on the available evidence, the Tribunal held that the accident in question occurred due to the negligence on the part of the driver of the bus. This finding is not challenged by the insurer. Insofar as the quantum of compensation is concerned, the Tribunal considered the salary slip of the claimant and held that the claimant was earning a monthly income of Rs.9,492/- per month and having regard to the evidence of P.W.2 that the claimant had suffered grievous injuries, it awarded the following compensation:
A Pain and suffering Rs. 25,000.00
B Loss of income on the basis of Rs. 30,000.00
disability
C Loss of income during laid up period Rs. 19,000.00
D Loss of amenities in life Rs. 10,000.00
E Medical expenses Rs. 26,500.00
F Attendant & Misc. Expenses Rs. 5,000.00
Total Rs.1,15,500.00
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Feeling aggrieved by the quantum of compensation
awarded by the Tribunal, the claimant is in appeal.
7. The claimant contends that the compensation needs to be enhanced towards loss of income during the laid up period, loss of amenities in life, attendant and miscellaneous expenses as well as towards the pain and suffering undergone by the claimant. However, learned Counsel for the insurer contends that the Tribunal was justified in awarding compensation of Rs.1,15,500/-.
8. I have given my anxious consideration to the contentions canvassed by the learned Counsel for the parties and perused the records of the Tribunal as well as its judgment and award.
9. It is seen from the evidence on record that the claimant had suffered the injuries as stated supra. It is also seen that the claimant was employed as a Service Operator in Preethi Home Appliance Private Limited and 7 was earning Rs.1,53,096/- per annum. The Tribunal ought to have awarded just compensation, having regard to the age of the claimant as well as the injuries sustained by the claimant, towards loss of income during the laid up period for three months in stead of two months.
10. In that view of the matter, it is appropriate that this Court enhances the compensation as follows:
A Pain and suffering Rs. 40,000.00
B Loss of income due to disability Rs. 30,000.00
C Loss of income during laid up period Rs. 30,000.00
for three months (Rs.9,500 x 3 =
Rs.28,500/- rounded of to
Rs.30,000/-)
D Loss of amenities in life Rs. 20,000.00
E Medical expenses Rs. 26,500.00
F Attendant & Misc. Expenses Rs. 10,000.00
Total Rs.1,56,500.00
11. In view of the above, the appeal is allowed in part. The compensation of Rs.1,15,500/- awarded by the Tribunal in MVC No.573/2015 is enhanced to Rs.1,56,500/- which is payable by the insurer along with interest at 6% 8 p.a. from the date of petition till realization. The insurer shall deposit the amount of Rs.1,56,500/- along with interest at 6% p.a. from the date of petition till realization within one month from the date of receipt of a certified copy of this judgment.
Sd/-
JUDGE Cs