Karnataka High Court
Kempaiah @ Kempanna vs Santhosh Kumar G on 30 July, 2024
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NC: 2024:KHC:29978
MFA No. 3009 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 3009 OF 2013 (MV)
BETWEEN:
KEMPAIAH @ KEMPANNA
S/O KALAIAH
AGED 28 YEARS
RA/T VADDARA DODDI
SHANABOGANA HALLI
RAMANAGAR TALUK
RAMANAGAR DISTRICT
...APPELLANT
(BY SRI. M. BABU, ADVOCATE)
AND:
1. SANTHOSH KUMAR G.
S/O. GOPALA KRISHNA
MAJOR, NO.19, 4TH CROSS,
SRIRAMPURA
Digitally signed by BENGALURU-560 021
PRAJWAL A
Location: HIGH COURT 2. THE NEW INDIA ASSURANCE CO. LTD.
OF KARNATAKA
REPRESENTED BY ITS MANAGER,
NO.65, ESWARI COMPLEX
DR. RAJKUMAR ROAD,
RAJAJINAGAR
BENGALURU - 560 010
...RESPONDENTS
(BY SRI. M.P. SRIKANTH, ADVOCATE FOR R2
VIDE ORDER DATED 17.07.2015,
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 25.07.2012
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NC: 2024:KHC:29978
MFA No. 3009 of 2013
PASSED IN MVC NO.5794/2010 ON THE FILE OF THE 20 TH
ADDITIONAL JUDGE, 18TH ACMM, MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In this appeal, the petitioner has challenged the Judgment and Award dated 25.07.2012 passed in MVC.No.5794/2010 by the XX Addl. Judge and XVIII ACMM, Bengaluru (ACMM-18) (in short, 'the Tribunal').
2. The appellant was the petitioner and respondents were the respondents before the Tribunal. The parties will be referred to as per their status before the Tribunal for the sake of convenience.
3. Brief facts of the case are, the petitioner has filed claim petition before the Tribunal, seeking compensation of Rs.5,00,000/- on the ground that on 03.07.2010 while riding the motor cycle bearing registration No.KA-05-EA-1765 at about 9.30 p.m., near NCC gate U turn at Dasappanadoddi, a car bearing -3- NC: 2024:KHC:29978 MFA No. 3009 of 2013 registration No.KA-51-N-4129 dashed against the motor cycle and caused him the injuries. He has taken treatment at Government Hospital, Ramanagaram, Victoria Hospital, Bengaluru. Claim was opposed by the Insurance Company. The Tribunal, after holding enquiry and hearing the both parties by impugned judgment allowed the claim petition granting compensation of Rs.57,000/- with 6% p.a. Pleading inadequacy and seeking enhancement, the petitioner has filed this appeal on various grounds.
4. Heard the arguments of Sri. M.Babu, learned counsel for the petitioner and Sri.M.P.Srikanth, learned counsel for the Insurance Company.
5. Learned counsel for the petitioner contended that the petitioner has suffered compound fracture of right shaft femur in the accident. The Doctor who is examined as PW-2 assessed the disability at 36% to his right lower limb and 18% to whole body. The Tribunal did not consider the medical evidence; no compensation is awarded towards incidental expenses, loss of amenities -4- NC: 2024:KHC:29978 MFA No. 3009 of 2013 and discomfort, loss of future income and loss of income during laid up period and sought for enhancement.
6. Per contra, learned counsel for the Insurance Company has contended that PW-2 is not the treated Doctor and his evidence cannot be accepted. The Tribunal has held that the fractures are hairline fractures and the same has not affected the earning capacity of the petitioner. The compensation awarded is just compensation and he has supported the impugned judgment.
7. I have given my anxious consideration to the arguments addressed on both sides and also perused the materials on record.
8. The material on record did point out that there was an accident on 03.07.2010 at about 9.30 p.m., near NCC Gate U Trun, Dasappanadoddi, involving the motor cycle rode by the petitioner and car in question. He was treated in Government Hospital, Ramanagaram and -5- NC: 2024:KHC:29978 MFA No. 3009 of 2013 Victoria Hospital, Bengaluru. Ex.P4 is the wound certificate which pointed out that the petitioner has suffered compound fracture of right femur. He was under
hospitalization for 15 days from 04.07.2010 to 19.07.2010. The driver of the car has been prosecuted as indicated by the prosecution papers. Hence, the Tribunal has also recorded that the petitioner is entitled to claim compensation on the ground of the injuries sustained in the accident.
9. The tribunal has awarded the compensation as follows:
1. Pain and suffering 50,000
2. Transportation charges 2,000
3. Medical expenses 5,000 Total 57,000
10. The petitioner has relied on the evidence of PW- 2 to the fact that he has assessed that physical disability affected his earning capacity. PW-2 is an Orthopedic surgeon of Victoria Hospital, as rightly argued, he is not -6- NC: 2024:KHC:29978 MFA No. 3009 of 2013 the treated Doctor. Petitioner has suffered compound fracture of right shaft femur. Even taking into the consideration the evidence of PW-2 and avocation of the petitioner as Carpenter, the whole body disability could have been taken at 10% by the Tribunal. The accident is of the year 2010. The petitioner has not produced any evidence to show his income. Hence, the notional income of the petitioner at the rate of Rs.5,500/- has to be considered for the purpose of calculation. In the case of this nature, compensation granted to the petitioner shall be just and it shall not be a peanut or bonanza.
11. Having regard to the nature of injury, the Tribunal has awarded Rs.40,000/- towards pain and suffering. Medical bills are produced for Rs.2,493/-, it is assessed at Rs.5,000/-. The Tribunal has awarded Rs.2,000/- towards transportation charges. The petitioner was under hospitalization for about 15 days. He was attended by an attendant, spent money towards travelling and also food and nourishment. Compensation of -7- NC: 2024:KHC:29978 MFA No. 3009 of 2013 Rs.2,000/- awarded by the Tribunal together on these heads is on the lower side and it has to be assessed at Rs.2,000/- toward transportation expenses, Rs.3,000/- towards attendant charges and Rs.5,000/- towards food and nourishment. Rs.40,000/- has to be assessed towards loss of amenities and disability. The petitioner had been laid up for minimum four months, therefore, Rs.5,500 x 4 = Rs.22,000/- is assessed.
12. As regarding loss of future earnings is concerned, as discussed above, the income is taken at Rs.5,500/- per month, applicable multiplier is '18', whole body disability is 10%. Calculation comes to Rs.5,500/- x 12 x 18 x 10% = Rs.1,18,800/-. Thus, in all, the petitioner is entitled to total compensation of Rs.2,35,800/-, thereby enhancement of Rs.1,78,800/-, This is the just compensation that the petitioner is entitled to in the facts and circumstances of the case. Liability on the part of Insurance Company to pay the compensation is not in -8- NC: 2024:KHC:29978 MFA No. 3009 of 2013 dispute. Accordingly, the appeal merits consideration, in the result, the following:
ORDER
i) Appeal is allowed in part;
ii) Impugned judgment and award is modified.
iii) Petitioner would be entitled to enhanced compensation of Rs.1,78,800/- along with interest of 6% p.a. from the date of petition till the date of deposit.
iv) The Insurance Company is directed to deposit the compensation within eight weeks from the date of receipt of certified copy of the judgment.
v) Amount in deposit, if any, shall be transmitted to the Tribunal along with records forthwith.
SD/-
(T.G. SHIVASHANKARE GOWDA) JUDGE MDS List No.: 1 Sl No.: 24