1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
M.F.A.No.10972 OF 2011 (MV)
BETWEEN:
Ganesh @ Ganapathi Raju,
S/o Venkataraju,
Aged about 35 years,
R/at No.2/58,
T.V.Narasimhapuram,
Palasamudra Mandalam,
Chittor District, A.P.State.
... Appellant
(By Sri.N.Madhusudhan, Advocate for
Sri. T.C. Sathish Kumar, Advocate)
AND:
1. Shivakumar R.,
S/o S.Rudraiah,
Hindu Major,
R/at Someshwara Temple Road,
Dobbaspet Post,
Nelamangala Tq,
Bangalore Rural District.
2. The Branch Manager,
National Insurance Co. Ltd.,
Branch Office,
G.Muddappa Complex,
I Floor, Vivekananda Road,
2
Tumkur-572101.
... Respondents
(By Miss. Ranjitha, Advocate for
Sri. C.M.Poonacha, Advocate for R2:
Notice to R1 is dispensed with
v/o dated:17.04.2015 )
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 05.02.2011
passed in MVC No. 87/2009 on the file of the II Additional
Judge, Court of Small Causes, MACT, Bengaluru, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
This MFA, coming on for hearing, through video
conference, this day, this Court, delivered the following:
JUDGMENT
This appeal is filed by the claimant under Section 173(1) of the Motor Vehicles Act challenging the judgment and award dated 05.02.2011 passed by the Motor Vehicles Accident Claims Tribunal, Bengaluru (SCCH.13) in MVC No.87/2009.
2. The brief facts of the case are that on 20.07.2008 at about 8.00 p.m. the claimant was walking by the road side from Hiredoddavadi towards Sathagatta. At that time, a motorcycle bearing 3 registration No.KA-04/EU-2711 came in a rash and negligent manner and dashed against the claimant and caused accident. As a result, he sustained injuries and immediately he was shifted to the hospital.
3. The claimant filed a petition under Section 166 of the Act on the ground that he was working as a driver and was earning Rs.9,000/- per month. It was pleaded that he also spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
4. On service of notice, the respondent Nos.1 and 2 filed separate written statements in which the averments made in the petition were denied. It was pleaded by respondent No.1 that the accident 4 occurred due to negligent crossing of the road by the claimant without observing the traffic rules and regulations. It was further pleaded that at the time of the accident the rider of the motorcycle was holding valid and effective DL and the offending vehicle was insured with the respondent No.2 and the policy was in force. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant.
It was pleaded by respondent No.2 that at the time of the accident the rider of the motorcycle was not holding valid DL and since intimation was not given by the insured, insurance company is not liable to indemnify the insured and pay compensation to the claimant. It was further pleaded that the accident occurred due to unmindful crossing of the road by the 5 claimant himself and he is not entitled to compensation. The involvement of the insured vehicle was disputed since there is a delay of 8 days in lodging the complaint. Hence, they sought for dismissal of the petition.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.T.S.Raghavendra as PW-2 and got marked 17 documents as Exs.P1 to P17. On the other hand, the respondents have examined Dr.B.Bhagya, Medical Officer as RW-1, one S.R.Veerendraprasad as RW-2 and an officer of the insurance company as RW-3 and got marked 7 documents as Exs.R1 to R7. After appreciation of the evidence, the Tribunal awarded compensation of Rs.3,62,100/- with interest at 6% per annum and directed the insurance company to pay the 6 compensation. Being not satisfied with the quantum of compensation, the claimant has filed this appeal seeking enhancement of compensation.
6. The learned counsel appearing for the claimant has raised the following contentions:
Firstly, at the time of the accident the claimant was working as a JCB driver and was earning Rs.9,000/- per month + Rs.100/- as Bata per day, he has also produced Ex.P13 - Employer's certificate to prove his income, but the Tribunal is not justified in assessing the notional income of the claimant as only as Rs.4,500/- per month.
Secondly, PW-2, the doctor has stated in his evidence that the claimant has suffered permanent physical disability of 45% to the right lower limb and he is unable to continue his job as a driver. But the Tribunal has failed to consider the functional disability and also not considered addition of future prospects. 7 In support of his contention, he relied on the following judgments of the Hon'ble Apex Court:
(1) Sandeep Khanuja vs. Atul Dande and another ((2017) 3 SCC 351.
(2) Jagdish vs. Mohan and others ((2018) 4 SCC 571.
(3) Pappu Deo Yadav vs. Naresh Kumar and others (2020 SCC Online SC
752).
Thirdly, due to the accident claimant has suffered grievous injuries and he has undergone surgery and he has to undergo one more surgery for removal of implants. But the Tribunal has failed to award any compensation for 'future medical expenses'.
Fourthly, the compensation granted under the other heads are on the lower side. Hence, he prays for allowing the appeal.
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7. Per contra, the learned counsel appearing for the Insurance Company has raised the following counter-contentions:
Firstly, even though the claimant claims that he was a JCB driver and was earning Rs.9,000/- per month and produced the employers certificate, he has not examined the author of the said document and therefore the Tribunal has rightly assessed the notional income at Rs.4,500/- per month.
Secondly, even though the claimant claims that he was working as a JCB driver, he has not produced the driving licence to prove the same and he has also not examined the employer. Since the claimant has failed to prove his avocation, the Tribunal has rightly not considered functional disability.
Thirdly, taking into consideration the evidence of the doctor that there is permanent physical disability 9 of 45% to the right lower limb, the Tribunal has rightly assessed 15% whole body disability.
Fourthly, since the doctor has not spoken about the further surgery or future medical expenses, the Tribunal has rightly not considered awarding of 'future medical expenses'.
Fifthly, considering the oral and documentary evidence, the Tribunal has granted just and reasonable compensation. Hence, he prays for dismissal of the appeal.
8. Heard the learned counsel for the parties. Perused the original records, judgment and award passed by the Tribunal.
9. It is not in dispute that the claimant suffered injuries in the accident occurred due to the rash and negligent riding of the offending vehicle by its driver.
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Even though the claimant has claimed that he was earning Rs.9,000/- per month by working as a JCB driver and also produced employer's certificate, he has not examined the author of the said document. Taking into consideration the materials available on record, the Tribunal has rightly assessed the notional income of the claimant as Rs.4,500/- per month.
In respect of disability is concerned, the doctor - PW2 has assessed the permanent physical disability of right lower limb at 45% and 15% whole body disability. Since the claimant has not produced any document to prove his avocation, the Tribunal has rightly not considered the functional disability. The judgments relied upon by the learned counsel appearing for the claimant is not applicable to the case on hand since in the case on hand the claimant has not proved his avocation by examining the employer or by producing the driving licence. 11
Taking into consideration of the evidence of the doctor and wound certificate at Ex.P5, I am of the opinion that the whole body disability can be assessed at 25%. The claimant was aged about 32 years at the time of the accident, the multiplier applicable to his age group is '16'. Thus, the claimant is entitled to Rs.2,16,000/- (Rs.4,500x12x16x25%) on account of 'loss of future income'.
The claimant was treated as inpatient for more than 20 days in the hospital and he has undergone surgery. He has to suffer the disability and unhappiness throughout his life. Hence, the compensation awarded by the Tribunal under the head 'loss of amenities' is enhanced from Rs.50,000/- to Rs.70m,000/- and the amount awarded under the head 'food, conveyance, attendant and nourishment' is enhanced from Rs.20,000/- to Rs.25,000/-. 12
Since the claimant has not established that he had incurred any sum for his further treatment, he is not entitled to 'future medical expenses'.
The compensation awarded by the Tribunal under other heads remains unaltered.
10. Thus, the claimant is entitled to the following compensation:
As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 60,000 60,000 Medical expenses 70,000 70,000 Food, nourishment, 20,000 25,000 conveyance and attendant charges Loss of income during 22,500 22,500 laid up period Loss of amenities 50,000 70,000 Loss of future income 1,29,600 2,16,000 Total 3,52,100 4,63,500 The claimant is entitled to a total compensation of Rs.4,63,500/-. The Insurance Company is directed 13 to deposit 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, within a period of six weeks from the date of receipt of the certified copy of this judgment.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE Cm/-