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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
MISCELLANEOUS FIRST APPEAL NO.3722 OF 2017 (MV-I)
BETWEEN:
KANTHARAJU
S/O LATE PUTTASWAMYGOWDA,
NOW AGED ABOUT 40 YEARS,
R/AT NEAR RAMAMANDIRA,
ADUVALLI EXTENSTION,
HASSAN.
... APPELLANT
(BY SRI. RAGHU R., ADVOCATE)
AND:
1. MAHADEVA,
MAJOR,
S/O BEEREGOWDA,
R/A NEAR HELIPAD,
UDAYAGIRI EXTENSION,
HASSAN-573201.
2. THE MANAGER
THE NEW INDIA ASSURANCE COM., LTD.,
BRANCH OFFICE,
HARSHAMAHAL ROAD,
HASSAN-573201.
... RESPONDENTS
(BY SRI. E.I. SANMATHI, ADVOCATE FOR RESPONDENT
NO.2;
2
NOTICE TO RESPONDENT NO.1 IS DISPENSED WITH VIDE
COURT ORDER DATED 31.01.2020)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED
02.02.2016 PASSED IN MVC NO.1099/2014 ON THE FILE
OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MACT,
HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant seeking enhancement of compensation awarded by the II Additional Senior Civil Judge and Motor Accident Claims Tribunal, Hassan (henceforth referred to as the 'Tribunal') in MVC No.1099/2014.
2. The appellant herein will henceforth be referred to as the 'claimant' and respondent Nos.1 and 2 herein will henceforth be referred to as the 'owner' and 'insurer' respectively of the offending vehicle involved in the accident.
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3. The claim petition discloses that on 17.11.2013 at about 5:45 p.m., when the claimant and his friend were walking behind Sub-Registrar's office, Kuvempu Nagara, Hassan, the rider of a Bajaj Discovery bike bearing registration No.KA-13-EA-7254 (henceforth referred to as the 'offending bike') dashed against the claimant from behind and caused serious injuries. As a result, the claimant suffered type II open fracture of both the bones of left leg, tenderness over his left knee, tenderness over TL spine, tenderness over pelvis and acromio-clavicular right dislocation and injuries to the other parts of the body. The claimant was shifted to Janapriya hospital, Hassan, where he underwent treatment for a period of one month and spent a sum of Rs.1,25,000/- towards medical expenses. The claimant claimed that he was an auto driver and was earning Rs.20,000/- per month and as a result of the injuries, he was unable to earn his livelihood. He therefore, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of 4 Rs.8,00,000/- from the owner and insurer of the offending bike.
4. The claim petition was contested by the insurer of the offending bike. It denied the accident, avocation, injuries and claimed that the rider of the offending bike did not possess a driving licence to drive it.
5. Based on the aforesaid rival contentions, the claim petition was set down for trial. The claimant was examined as PW.1 and the Doctor, who treated the claimant was examined as PW.2 and they marked documents as Exs.P1 to P14, while the insurer examined its officer as RW.1 and marked a document as Ex.R1, which was a letter of authorization.
6. The Tribunal held that the accident was due to the negligence on the part of the rider of the offending bike and that he was solely responsible for it. This finding of the Tribunal is not challenged by the Insurer and is thus allowed to rest.
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7. The Tribunal noticed that the claimant had suffered the following injuries:
1. Type II Open fracture of both bones of the left leg.
2. Tenderness over left knee.
3. Tenderness over TL spine.
4. Tenderness over pelvis.
5. Acromio-clavicular dislocation right.
8. It also noticed the evidence of PW.2-Doctor, who deposed that the claimant had suffered disability to an extent of 32% to his left lower limb and therefore, considered his disability to the whole body at 8%. The Tribunal treated the income of the claimant at a sum of Rs.5,000/- per month and having regard to the injuries sustained by him, awarded the following compensation:
Heads under which compensation is Amount
awarded (in Rupees)
Pain and suffering 45,000/-
Medical expenses incurred and future 1,27,072/-
medical expenses, attendant,
conveyance, nourishing food, and other incidental expenses Loss of income during laid-up period 15,000/- Loss of future income on account of 72,000/- permanent disability 6 Loss of amenities, life comforts and 15,000/-
expectancy of life
TOTAL 2,74,072/-
9. Feeling aggrieved by the quantum of
compensation awarded by the Tribunal, the claimant is in appeal.
10. Learned counsel for the claimant contended that the Tribunal ought to have awarded adequate compensation by treating his notional income at a sum of Rs.8,000/- per month. Learned counsel also contended that the Tribunal ought to have awarded reasonable compensation towards pain and suffering undergone by the claimant due to the injuries sustained by him as a result of the accident.
11. Learned counsel for the insurer, however, contended that the Tribunal was justified in awarding compensation of Rs.2,74,072/- and contended that the Tribunal ought not to have awarded interest at 8% per annum. Therefore, learned counsel for the insurer pleaded 7 that the judgment and award of the Tribunal may be left undisturbed. However, he further contended that if this Court were to hold that the claimant is entitled for enhancement of compensation, then to reduce the rate of interest awarded by the Tribunal.
12. It is seen from Ex.P6 - wound certificate that the claimant had suffered the following injuries:
1. Type II open fracture of both bones of left leg.
2. Tenderness over left knee.
3. Tenderness over TL spine.
4. Tenderness over pelvis.
5. Acromio-clavicular dislocation right.
13. It is also seen from Ex.P9 (discharge summary) that the claimant was admitted to Janapriya Orthopaedic and Accident Care Centre on 17.11.2013 and was discharged on 24.11.2013. Thus, having regard to the nature of the injuries sustained by the claimant, the Tribunal ought to have awarded reasonable compensation towards pain and suffering. Further, the Tribunal ought to have considered the notional income of the claimant at a 8 sum of Rs.8,000/- per month as is done by this Court in cases referred to Lok Adalath for settlement. If the notional income of the claimant is considered at Rs.8,000/- per month and the disability at 11% as per the Guidelines and Gazette Notification Regd. No.DL33004/99 (Extraordinary) Part-II, Sec.1, June 13, 2001 issued by the Ministry of Social Justice and Empowerment, Government of India and guidelines issued by Artificial Limbs Manufacturing Corporation of India (ALIMCO), the compensation awarded by the Tribunal deserves to be recalculated as follows:
Sl. Heads under which Amount
No. compensation is awarded (in Rupees)
1 Pain and suffering 60,000/-
2 Medical expenses 1,27,072/-
3 Loss of income during the laid-up 24,000/-
period
4 Loss of income due to disability 1,58,400/-
(Rs.8000x12x11%x15)
5 Charges towards nourished food, 20,000/-
incidental expenses,
transportation, attendant charges 6 Loss of amenities 30,000/-
Total 4,19,472/-
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14. In view of the above, the appeal is allowed in part and in modification of the impugned Judgment and Award passed by the Tribunal, the compensation awarded to the claimant is enhanced from Rs.2,74,072/- to a sum of Rs.4,19,472/-, which is payable by the insurer along with interest at the rate of 6% per annum from the date of the claim petition till the date of realization.
The insurer is directed to deposit the compensation with interest as stated above within one month from the date of receipt of certified copy of this Judgment. On such deposit, 50% of the amount shall be kept in a fixed deposit in the name of the claimant in any nationalized bank for a period of two years.
Sd/-
JUDGE sma