Karnataka High Court
Sri K Armugam vs The Managing Director on 4 December, 2021
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 04TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
M.F.A. NO.11120 OF 2011 (MV)
BETWEEN:
SRI K ARMUGAM,
S/O KANDASWAMY GOUNDER,
AGED ABOUT 55 YEARS,
R/O T.G.COLONY,
ADIVALA POST - 577 511,
HIRIYUR TALUK.
...APPELLANT
(BY SHRI N.R.RANGE GOWDA, ADVOCATE)
AND:
1. THE MANAGING DIRECTOR,
HEWELETT PACKARD GLOBAL SOFT PVT. LTD.,
PARAMES CHIDAMPARAM,
HP AVENUE, 39/40,
ELECTRONICS, HOSUR ROAD,
BANGALORE - 560 129.
2. THE BRANCH MANAGER,
BRANCH OFFICER,
THE TATA AIG GENERAL INSURANCE CO. LTD.,
5TH FLOOR, WEST ENTRENSS, KHANIJA BHAVANA,
RACE COURSE ROAD, WEST SIDE,
BANGALORE - 560 001.
...RESPONDENTS
(BY SHRI SHRIPAD V SHASTRI, ADVOCATE FOR R1,
SHRI K KISHOR KUMAR REDDY, ADVOCATE FOR R2)
----
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT AND AWARD DATED: 12.04.2011 PASSED IN MVC
NO.160/2009 ON THE FILE OF SENIOR CIVIL JUDGE AND
MEMBER, ADDITIONAL MACT, HIRIYUR, 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 appellant challenging the
judgment and award passed by the Senior Civil Judge and
Member and Additional Motor Accident Claims Tribunal, (for
short hereinafter referred to as 'Tribunal'), Hiriyur, in MVC
No.160/2009 dated 12.04.2011, wherein the claim petition
filed by the appellant/ petitioner came to be allowed in part
by awarding compensation of Rs.98,020/- with interest at
6% p.a.
2. Brief case of the petitioner/ appellant before the
tribunal is that on 01.01.2009 at about 07:45 p.m., when
the petitioner along with his friend were waiting for the bus
to go to Bengaluru, at that time, one Innova car bearing
Reg. No.KA-01/MC-4647 came from Hiriyur side with a high
speed in a rash and negligent manner and dashed against
the claimant near Jailabbin house at Adivala on Puna -
Bengaluru road and caused the accident. Due to the said
accident, the petitioner sustained grievous injuries and he
was admitted to the Government Hospital, Hiriyur.
Thereafter, as per the advice of the Doctor, the petitioner
was shifted to Hosmat Hospital, Bengaluru. There he took
treatment as an inpatient for a period of 30 days and
underwent surgery. He contended that due to the
actionable negligence on the part of the driver of the
offending vehicle, the accident occurred. Hence, he filed a
claim petition before the tribunal claiming compensation.
3. Inspite of sufficiency of service of notice,
respondent No.1 - owner remained absent before the
tribunal. The insurance company - respondent No.2
appeared and filed written statement. It is contended by
the respondent No.2 that the offending vehicle was duly
insured with respondent No.2, but they have denied the
other contentions of the petitioner as false and contended
that the petitioner be put to strict proof of his contentions
and the liability is only as per the terms of policy and if
there is any violation of policy, respondent No.2 is not liable
to pay the compensation. With these main contentions,
learned counsel for respondent No.2 prayed to dismiss the
claim petition.
4. After considering the pleadings and contentions
of the parties, the tribunal framed the following issues:
"1. Whether the petitioner proves that he
sustained injuries in a motor vehicle
accident that occurred on 1-1-2009 at
about 7:45 p.m. near Jailabbin house on
the NH-4 Road, Adivala, Hiriyur Taluk on
account of actionable negligence of driver
of Innova Car bearing Reg. No.KA-01/MC-
4647?
2. Whether the respondent No.2 Company
proves that the accident occurred on
account of actionable negligence of
petitioner himself in immediately crossing
the road?
3. Whether the petitioner is entitled to
compensation? If so, what is the amount
and who is liable to pay?
4. What order or award?"
5. Before the tribunal, the petitioner himself got
examined as PW.1 and examined one witness Dr.Ambrish
as PW.2 and got marked eleven documents consisting of
FIR, seizure mahazar, spot mahazar, IMV report, wound
certificate, charge sheet, disability certificate, X-ray film
and RTC extracts. The respondents neither adduced
evidence nor produced any documents.
6. After hearing the arguments, the tribunal
awarded compensation of Rs.98,020/- with interest at the
rate of 6% per annum. Being not satisfied with the
quantum of compensation, the appellant has preferred this
appeal.
7. Heard Sri. N.R.Range Gowda, learned counsel
for the appellant, Sri. Shripad V.Shastri, learned counsel for
respondent No.1 and Sri. K.Kishor Kumar Reddy, learned
counsel for respondent No.2 - Insurance company.
8. Learned counsel for the appellant mainly argued
that the income of the petitioner considered by the tribunal
for awarding compensation is very much on the lower side,
as he was an agriculturist and earning more than
Rs.20,000/- per month prior to the accident, therefore, the
tribunal ought to have taken his monthly income
considering his avocation. Further, the tribunal has awarded
very meager amount towards 'attendant charges', 'loss of
income during treatment period', 'loss of earning due to
disability' and no compensation is awarded towards 'future
unhappiness or amenities'. Therefore, learned counsel
argued to modify the compensation awarded by the tribunal
and prayed for enhancement of compensation.
9. Against this, learned counsel for the respondent
No.2 insurance company supported the impugned judgment
and award and contended that the petitioner has not
produced any document in proof of the amount which was
spent towards his treatment and also there is no record to
show that he took treatment as an inpatient for a period of
one month in Hosmat Hospital, Bengaluru. Hence, justified
the compensation awarded by the tribunal.
10. I have considered the arguments of learned
counsel for the parties, perused the impugned judgment
and award passed by the tribunal, appeal memo and also
records of the tribunal.
11. The occurrence of the accident is not in dispute.
The insurer has admitted that the policy was in force as on
the date of the accident and liability of the insurance
company is also not in dispute. The only question that
remains for consideration before this court is "whether the
compensation awarded under different heads by the
tribunal is just, fair and reasonable or not" ?
12. The petitioner has produced RTC's standing in
his name as per Exs.P9, 10 & 11 to show that he has got
agricultural land. Ofcourse, he has not produced any
document to show his exact income. It is also evident that
the petitioner is getting income from his agricultural land.
Therefore, it appears that till today, he is cultivating the
land. In the absence of proof of income, the tribunal has
taken Rs.3,000/- per month only as his monthly income. In
my considered view, the income of Rs.3,000/- per month is
very much on the lower side. The accident occurred in the
year 2009. Even for a person who is having no exact
records to prove his monthly income, as per notional
income chart which is accepted in the Lok-Adalath, for the
year 2009, the monthly income could be taken at
Rs.5,000/- per month which is in my considered view is just
and reasonable. Therefore, taking the monthly income of
petitioner at Rs.5,000/- per month, as the claimant was
aged about '55' years, the appropriate multiplier applicable
to the age group of petitioner is "11," as per the decision of
Hon'ble Supreme Court in the case of SARLA
VERMA(SMT) AND OTHERS v. DELHI
TRANSPORT CORPORATION AND ANOTHER,
(2009) 6 SCC 121 and taking the disability of claimant
at 12%, the compensation towards "loss of future income "
works out to Rs.79,200/- (Rs.5,000 x 12 x 12% x 11).
The tribunal has awarded a sum of Rs.32,000/- towards
"pain and suffering" which is just and proper as the
evidence of Doctor indicates that the claimant has
sustained malunited fracture of lateral tibial condyle with
irregular articular surface due to the accident and further
the Doctor has stated that he has no evidence to show that
the petitioner took treatment as an inpatient in the Hosmat
Hospital, Bengaluru and regarding taking further treatment
after getting discharged from the Hosmat Hospital,
Bengaluru. The tribunal has awarded a sum of Rs.5,000/-
towards "medical expenses" which needs no interference by
this Court.
13. Towards "loss of earning during treatment
period" is concerned, the tribunal has awarded a sum of
Rs.3,000/- per month which is on the lower side. The
petitioner has sustained fracture to his leg and it requires
atleast minimum three months rest and when there is a
fracture to the leg, the person may not be able to work
properly as he was doing earlier to the accident. Hence,
"loss of earning during treatment period" comes to
Rs.5,000 x 3 = 15,000/-. Towards "attendant charges,"
the tribunal has awarded a sum of Rs.500/- which is very
meager and looking to the cost of living during the year
2009, it is just and proper to award a sum of Rs.5,000/-
under the said head. The tribunal has awarded a sum of
Rs.10,000/- per month towards "future medical expenses"
which is just and proper and no interference is called for.
14. The tribunal has not awarded compensation
towards "loss of amenities" or "future unhappiness". It is
evident from the evidence of PW.2-Doctor that he has not
actually treated the petitioner and he has only issued
disability certificate. On the other hand, he has admitted in
the cross-examination that he has not seen the petitioner
being taken further treatment. The petitioner himself has
stated that he has not taken any further treatment after
one year of the accident and that he states that there is
some inconvenience for standing, sitting and squatting the
leg. However, taking into consideration the age, avocation
and nature of the injuries sustained by the petitioner and as
there is a bone grafting and as the petitioner has to lead
rest of his life with the disability and has to suffer
discomfort and unhappiness, therefore, it is just and proper
to award a sum of Rs.10,000/- towards "loss of
amenities".
15. In the result, considering the nature of injuries,
evidence of the appellant, the compensation awarded by
the tribunal need to be rejudged and the compensation
awarded by the tribunal is recalculated under different
heads of compensation as under:
Sl. Particulars Compensation Compensation
No. awarded by the re-determined
tribunal by this court
1. Towards pain and Rs.32,000/- Rs.32,000/-
suffering
2. Towards medical Rs. 5,000/- Rs. 5,000/-
expenses
3. Towards loss of Rs. 3,000/- Rs.15,000/-
earning during
treatment period
4. Towards attendant Rs. 500/- Rs. 5,000/-
charges
5. Towards future Rs.10,000/- Rs.10,000/-
medical expenses
6. Towards future loss of Rs.47,520/- Rs.79,200/-
income
7. Loss of amenities ---- Rs.10,000/-
Total Rs. 98,020/- Rs.1,56,200/-
In the result, I pass the following:
ORDER
(i) The appeal is partly allowed;
(ii) The impugned judgment and award dated
12.04.2011 passed by learned Senior Civil Judge and
Member, Addl. MACT, Hiriyur, in MVC No.160/2009 having
been modified, the appellant is entitled for a total
compensation of Rs.1,56,200/- (Rupees One lakh fifty six
thousand two hundred only).
(iii) The other conditions of the tribunal regarding
apportionment and interest remains unaltered.
(iv) The respondents shall deposit the compensation
amount within six weeks from the date of receipt of a
certified copy of this order.
(v) Costs made easy.
(vi) Send back the records to the tribunal.
Sd/-
JUDGE
HJ
