Karnataka High Court
Sri Subramanya vs Sri Naveen on 3 December, 2021
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
M.F.A. NO.4687 OF 2015 (MV-INJ)
BETWEEN:
SRI SUBRAMANYA
S/O RAMANNA @ RAMUDU,
AGED ABOUT 55 YEARS,
WORKING AS BARBER,
C/O L.N. SALOON,
BARBER SHOP, G.R. MILL,
N.R. PURA,
CHIKKAMAGALURU.
... APPELLANT
(BY SRI. L. SRINIVASA BABU, ADVOCATE)
AND:
1. SRI NAVEEN
S/O VISHWASEN
AGED ABOUT 30 YEARS,
R/A THENGINAMANE,
KALKERE, KOPPA TALUK,
CHIKKAMAGALURU DISTRICT - 577 126
DRIVER CUM OWNER OF TATA INDICA
BEARING NO.KA 14/TC/09/10.
2. THE MANAGER
UNIVERSAL SOMPO GENERAL INS.CO. LTD.,
KVD TOWERS, 2ND FLOOR,
7/3 OLD MADRAS ROAD, (KOLAR ROAD),
2
OPP. 100 FEET ROAD, INDIRA NAGAR,
BENGALURU-38.
3. SRI. NAGARAJ
S/O R.C.VENKATASWAMY,
AGED ABOUT 46 YEARS,
PROPRIETOR, LNS SALOON,
HALEPETE VILLAGE,
N.R. PURA TALUK,
CHIKKAMAGALURU DISTRICT - 577 134
MOTOR CYCLE BEARING NO.KA 18/ U 3511
4. THE MANAGER
THE ORIENTAL INS. CO. LTD.,
LAKSHMI SHOPPING COMPLEX,
SUBHASH ROAD, KOPPA,
CHIKKAMAGALURU - 577 126.
... RESPONDENTS
(BY SRI.A.N.KRISHNA SWAMY, ADVOCATE FOR R2;
SRI.K.N.SRINIVASA, ADVOCATE FOR R4;
R1 & R3 - SERVED AND UNREPRESENTED)
*****
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 11.03.2015 PASSED IN MVC
NO.233/2012 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE
AND MEMBER, MACT, AT CHIKKAMAGALURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
The captioned appeal is filed by the appellant/claimant
seeking enhancement of compensation.
2. The appellant filed claim petition by contending that
he met with an accident on 01.01.2012 while he was
proceeding as a pillion rider on a motorbike bearing No.KA-
18/U 3511. The appellant contended that respondent No.3
was riding the motorbike with caution and by following traffic
rules and when they reached near 11th Milestone,
Lakkinakoppa Cross on Shivamogga N.R.Pura Road, the driver
of the offending Tata Indica car came in a rash and negligent
manner and dashed against the bike in which the appellant
was traveling. Due to the impact, the appellant sustained
fracture of proximal right tibia with fibula fracture, fracture of
right patella and fracture of lateral condyle of right femur.
Hence, filed claim petition by specifically contending that on
account of permanent disability, he has lost his future earning
and therefore, claimed compensation of Rs.10,00,000/-.
3. In support of his contention, the appellant
examined himself as PW.1 and examined the Doctor as CW.1
and produced documentary evidence vide Exs.P-1 to P-41 and
Exs.C-1 to C-3. The respondent/Insurance Company by way
of rebuttal evidence lead in ocular evidence of two officials as
RWs.1 and 2 and relied on documentary evidence vide Exs.R-1
to R-5.
4. The Tribunal having assessed the oral and
documentary evidence and having taken note of the disability
certificate issued by CW.1, however, denied compensation
under the head of future loss of earning on the ground that
appellant has only suffered functional disability and the injury
being only to one leg, question of granting compensation
under the head of loss of future earning would not arise. The
Tribunal by notionally assessing the income at Rs.3,000/-
awarded a sum of Rs.6,000/- towards laid up period,
Rs.10,000/- towards loss of amenities, Rs.2,46,010/- towards
medical expenses and Rs.10,000/- towards future medical
expenses. The Tribunal, in all, has awarded total
compensation of Rs.3,12,010/- directing the respondent Nos.1
and 2 to jointly and severally pay the compensation
determined by the Tribunal.
5. The appellant being aggrieved by the inadequate
compensation determined by the Tribunal is before this Court.
6. Learned counsel appearing for the appellant would
vehemently argue and contend before this Court that the
clinching medical evidence clearly demonstrate that appellant
has permanent disability to the tune of 32% to the right lower
limb. Therefore, he would submit to this Court that the
Tribunal erred in not awarding any compensation under the
head future loss of earnings. He would also submit to this
Court that having regard to the gravity of injuries, the
compensation awarded by the Tribunal towards pain and
sufferings, loss of amenities are very much on the lower side.
On these set of grounds, he would submit to this Court that
the appellant is entitled for enhancement.
7. Per contra, learned counsel appearing for the
respondent No.2/Insurance Company would however support
the compensation arrived at by the Tribunal and therefore, he
would urge this Court to dismiss the appeal as there is no
scope for further enhancement.
8. Heard learned counsel appearing for the appellant
and learned counsel for the respondent/Insurance Company.
Perused the records.
9. On perusal of the evidence on record, this Court
would find that the appellant has suffered three fractures i.e.,
fracture of proximal right tibia with fibula fracture, fracture of
right patella and fracture of lateral condyle of right femur. To
substantiate the gravity of injuries, the appellant has
examined the Doctor as CW.1 who has opined that appellant
has 32% permanent disability to his right lower limb. On
perusal of the record, however, this Court would find that
there is no independent assessment in regard to whole body.
In absence of assessment to the whole body, by taking 1/3rd
of the disability assessed to the right lower limb, the
permanent disability has to be assessed at 10%.
10. Admittedly, the accident is of the year 2012 and in
absence of income proof, the income of the appellant has to
be notionally assessed at Rs.7,000/- and if 10% disability is
taken, the compensation payable under the head future loss of
earnings works out to Rs.92,400/- (7000x10%x12x11). The
appellant has suffered three fractures. Therefore, he is
entitled Rs.40,000/- under the head 'pain and sufferings' and
a sum of Rs.25,000/- towards loss of amenities. Having
regard to the gravity of injuries, this Court having assessed
the income of the appellant at Rs.7,000/- would proceed to
award compensation for a period of four months towards laid
up period and the same works out to Rs.28,000/- (7,000x4).
Since the appellant was inpatient for 60 days, I deem it fit to
award Rs.10,000/- towards conveyance and attendant
charges. The compensation determined by the Tribunal under
the head 'medical expenses' and 'future treatment' remains
undisturbed. Therefore, the total compensation re-determined
by this Court is as follows:
Sl. Heads Amount
No.
1. Pain and sufferings Rs.40,000/-
2. Loss of amenities Rs.25,000/-
3. Loss of income during laid up period Rs.28,000/-
4. Loss of future earning Rs.92,400/-
5. Medical expenses Rs.2,46,010/-
6. Further treatment Rs.10,000/-
7. Conveyance and attendant charges Rs.10,000/-
Total Rs.4,51,410/-
11. Accordingly, the appeal is allowed in part. The
judgment and award of the Tribunal is modified. The total
compensation re-determined by this Court works out to
Rs.4,51,410/- as against Rs.3,12,010/- awarded by the
Tribunal. The appellant is entitled to enhanced compensation
of Rs.1,39,400/- which shall carry interest at the rate of 6%
per annum.
Sd/-
JUDGE
CA
