Karnataka High Court
T. Palakshappa vs Manjunath on 16 December, 2021
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
M.F.A. NO.10231 OF 2013 (MV)
BETWEEN:
T. PALAKSHAPPA
S/O LATE THIMMAIAH,
AGED ABOUT 61 YEARS,
RETIRED A.S.I.,
NOW R/AT R.S.KRUPA,
BEHIND SARGOD RICE MILL,
JAYANAGARA EXTENSION,
CHIKMAGALUR-577101. ...APPELLANT
(BY SRI RAVI KUMAR N.R. & K.S.GANESHA,
ADVOCATES FOR APPELLANT)
AND:
1. MANJUNATH S/O ASHWATH,
AGED ABOUT 33 YEARS,
R/O ARVIND NAGARA,
BASAVANAHALLI EXTN.,
CHIKMAGALUR-577101.
2. M/S. ASHOK LEYLAND FINANCE LTD.,
NO.402, RISHMOND PLAZA,
III FLOOR, NO.5, RICHMOND ROAD,
BANGALORE-560025.
3. THE BRANCH MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
BRANCH OFFICE,
CHIKMAGALUR-577101. ...RESPONDENTS
(BY SMT. GEETHA RAJ, ADVOCATE FOR R3;
SRI. B.M.KUSHALAPPA, ADVOCATE FOR R2;
V/O/DTD:26.11.2021 NOTICE TO R1 DISPENSED WITH)
2
----
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, AGAINST
THE JUDGMENT AND AWARD DATED: 08.06.2012 PASSED IN
MVC NO.180/2007 ON THE FILE OF THE ADDITIONAL
DISTRICT JUDGE, MEMBER, MACT, CHIKMAGALUR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the petitioner challenging the
judgment and award passed by the Court of Additional
District Judge and Member and Additional Motor Accident
Claims Tribunal, (for short hereinafter referred to as
'Tribunal'), Hiriyur, in MVC No.180/2007 dated 08.06.2012,
wherein the claim petition came to be allowed in part by
awarding compensation of Rs.81,812/- with interest at 6%
p.a.
2. The appellant/petitioner filed a petition
before the tribunal claiming compensation for the
injuries sustained by him in the accident which occurred
on 03.10.2006.
3. Brief case of the petitioner before the
tribunal is that on 03.10.2006 at about 10:45 a.m.,
when the petitioner was proceeding near market road
cross with one Puttaraju on the left side of K.M.Road, at
that time, the 1st respondent being a driver of the
Bolero Vehicle bearing No.KA-03-MA-7255, drove it in a
rash and negligent manner and dashed to the petitioner,
as a result, the petitioner sustained grievous injuries on
his right great toe and other parts of the body.
Immediately, he was shifted to District Hospital,
Chikmagalur wherein he took a treatment as inpatient.
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 for a sum of
Rs.3,00,000/- with interest.
4. After service of notice, the 2nd respondent
was placed exparte. 1st respondent appeared through
his counsel but did not file objections. Respondent
No.3-insurance company -appeared and filed written
statement. It is contended by respondent No.3 that the
offending vehicle was duly insured with respondent
No.3, 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. It is further
contended that respondent No.1 was not having valid
driving license at the time of accident. With these main
contentions, prayed to dismiss the claim petition.
5. After considering the pleadings and
contentions of the parties, the tribunal framed the
following issues:
"1. Whether the petitioner proves that on
03.10.2006 at about 10.45 a.m., near
market road cross, K.M.Road,
Chikmagalur, he sustained personal
injuries in the motor vehicle accident
that took place due to rash and
negligent act of the respondent No.1
the driver of the Mahindra Bolero
bearing No.KA-03-MA-7255 and
belongs to respondent No.2 and
insured with respondent No.3?
2. Whether the petitioner is entitled for
compensation? And if so, at what rate?
And from whom?
3. What order?"
6. Before the tribunal, the petitioner himself
got examined as PW.1, and got marked fifteen
documents as Ex.P1 to P15 consisting of FIR, complaint,
mahazar, wound certificate, discharge certificate, bank
letter, salary certificate, memos, prescriptions and
medical bills, disability certificate and x-ray. On behalf
of respondents, insurance company produced insurance
policy which was got marked as Ex.R1.
7. After hearing the arguments, the tribunal
awarded compensation of Rs.81,812/- with interest at
the rate of 6% per annum. Being not satisfied with the
quantum of compensation, the petitioner has preferred
this appeal.
8. Heard Sri. Ravi Kumar N.R., learned counsel
for the appellant, Sri. B.M.Kushalappa, learned counsel
for respondent No.2 and Smt.Geetja Raj, learned
counsel for respondent No.3. Issuance of notice to
respondent No.1 is dispensed with vide order dated
26.11.2021.
9. Learned counsel for the appellant mainly
argued that the tribunal has taken the disability of the
petitioner at 5% for the whole body which is very much
on the lower side. Learned counsel further argued that
there is a fracture, but only some of Rs.5,000/- is
awarded by the tribunal under the head pain and
sufferings which is also very meager. Further, the
tribunal has awarded very meager amount towards
attendant charges, food and nutrition and no
compensation is awarded towards loss of amenities.
Learned counsel further argued that the income of the
petitioner considered by the tribunal for awarding
compensation is very much on the lower side, as he was
working as ASI at the time of accident and drawing
Rs.11,865/- as gross salary and Rs.9,502/- as net
salary and he will be getting more salary in future.
Therefore, the tribunal is wrong in awarding
compensation under the head loss of permanent
disability. Hence, on meager amount the tribunal ought
to have taken his monthly income considering his
avocation. Therefore, learned counsel argued to modify
the compensation awarded by the tribunal and prays for
enhancement of compensation.
10. Against this learned counsel for the
insurance company supported the impugned judgment
and award. Hence, prayed to justify the compensation
awarded by the tribunal.
11. I have considered the arguments of learned
counsel for the parties, perused the appeal memo,
impugned judgment and award passed by the tribunal
and also records placed before this Court.
12. The points arise for my consideration are as
under:
I. Whether the compensation award by the
tribunal is just and proper?
II. Whether it needs any interference by
this Court?
13. It is not in dispute that the accident
occurred due to rash and negligent driving of the 1 st
respondent who is the driver of the Mahindra Bolero
vehicle bearing Reg. No.KA-03-MA-7255 in question.
The said vehicle belongs to the 2nd respondent and
insured with the 3rd respondent and insurance policy
was in force at the time of accident. These aspects are
not disputed. The claimant/PW1 is admittedly, working
as ASI in the Traffic Police Station when the accident
took place. He sustained injuries which are shown in
Ex.P4-wound certificate as under:
i. Lacerated wound over the right side of great
toe 1½'x ½
ii. Compound fracture of distal phalanx of right
great toe.
14. Doctor has opined that injury No.2 is
grievous in nature. The appellant also produced
discharge summary-Ex.P5 issued by the Holy cross
hospital, Chikmagalur. It is also evident that the
claimant was getting Rs.11,865/- as gross salary and
Rs.9,502/- as net salary at the time of incident. Looking
into the nature of injury sustained and occupation of the
injured, I am of the considered view that the petitioner
is not entitled for compensation under the head
permanent disability which is awarded by the Tribunal,
The insurance company has not challenged it. However,
the wound certificate-Ex.P4 shows that there was a
compound fracture of distal phalanz of right great toe.
The pain and sufferings awarded by the tribunal is only
Rs.5,000/-. In my considered view the same is to be
enhanced. Therefore, it is enhanced to Rs.15,000/-
instead of Rs 5,000/- towards pain and sufferings.
15. The claimant was working as ASI. The very
nature of his duty requires wearing of shoes and that
fracture must have caused discomfort and unhappiness
and he must have suffered the same through out his
service. But the tribunal has not awarded compensation
under the head loss of amenities or future unhappiness.
Therefore, the claimant is entitled for a sum of
Rs.15,000/- under the head loss of amenities.
Regarding food and nourishment, the tribunal has
awarded only Rs.5,000/- which is very meager. Hence,
the same is to be enhanced as he requires attendant for
sometime during hospitalization. He also requires
traveling expenses. Therefore, considering the nature of
injury and period of hospitalization, the compensation
under the head food and nourishment requires to be
enhanced. Hence, Rs.10,000/- is awarded under the
said head. The tribunal has awarded Rs.16,500/- under
the head loss of income during treatment period.
Considering his net salary i.e., Rs.9,502/-, as he
requires minimum two months leave during healing
period, this court is of considered view that the said
amount requires to be enhanced. Therefore,
Rs.19,000/- is awarded under the head loss of income
during laid up period.
16. In the result, considering the nature of
injuries, evidence of the appellant, the compensation
awarded by the tribunal need to be re-judged and
recalculated under the different heads of compensation
as under:
Sl. Particulars Compensation Compensation
No. awarded by the re-
tribunal determined
by this court
1. Towards pain and Rs.5,000/- Rs.15,000/-
suffering
2. Towards medical Rs.3,106/- Rs.3,106/-
expenses
3. Towards loss of Rs.16,500/- Rs.19,000/-
earning during
treatment period
4. Towards food and Rs.5,000/- Rs.10,000/-
nutrition
5. Loss of amenities ---- Rs.15,000/-
6. Permanent disability Rs.52,206/- Rs.52,206/-
Total Rs. 81,812/- Rs.1,14,312/-
17. Regarding liability, the tribunal has fastened
the liability on respondent Nos. 1 and 2. Learned
counsel for the appellant has stated the tribunal has
dismissed the petition against the 3rd respondent
insurance company holding that the driver had no valid
driving license at the time of accident. In the case of
Pappuu and Others Vs. Vinod Kumar Lamba And
Another, (2018) 3 SCC 208 wherein the Hon'ble Apex
Court held that even there is no driving license, the
Insurance Company has to pay compensation amount
and recover the same from the owner when the policy
was in-force as on the date of accident. Learned counsel
for respondent No.3 stated that the owner has already
deposited the compensation amount awarded by the
tribunal. The insurance company has to pay remaining
amount and recover the same from the 2nd respondent
who is owner of the offending vehicle. Further, the
appellant is not entitled for the interest on the enhanced
compensation for the delayed period. In the result, I
pass the following:
ORDER
(i) The appeal is partly allowed;
(ii) The impugned judgment and award passed
by Additional District Judge and Member,
Addl. MACT, Chikmagalur, having been
modified, the petitioner is entitled for total
compensation of Rs.1,14,312/- (Rupees
One lakh fourteen thousand three hundred
and twelve only).
(iii) The 3rd respondent shall deposits the
compensation amount within six weeks from
the date of receipt of a certified copy of this
order.
(iv) Regarding rate of interest and other order
passed by the tribunal is kept in tact.
(v) Costs made easy.
(vi) Sent back the records to the tribunal.
Sd/-
JUDGE
JS/-
