Sri M Manjunath vs Sri Ramachandiran S
2021 Latest Caselaw 6359 Kant

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

 DATED THIS THE 17TH DAY OF DECEMBER 2021

                      BEFORE

       THE HON'BLE MR.JUSTICE P.N.DESAI

           M.F.A. NO.239 OF 2014 (MV)

BETWEEN:

Sri. M. MANJUNATH
S/O MUNIRAJAPPA,
AGED ABOUT 20 YEARS,
R/AT NO.265, GUNJURPALYA,
BANGALORE-560087.                     ...APPELLANT

(BY SRI MUJTABA, ADVOCATE)
AND:

  1. SRI. RAMACHANDIRAN S,
     S/O SUNDARAM, AGE MAJOR,
     NO.345, 21ST WARD,
     V.O.C.Nagar, SATHUVACHARI,
     VELLORE-6320009.

  2. UNITED INDIA INSURANCE CO.LTD.,
     REGIONAL OFFICE,
     KRISHI BHAVAN BUILDING,
     5TH FLOOR, HUDSON CIRCLE,
     BANGALORE-560001.            ...RESPONDENTS

(BY SRI.RAVISH BENNI, ADVOCATE FOR R2;
 V/O/DTD:11.04.2017 NOTICE TO R1 DISPENSED WITH)
                          ----
      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, AGAINST
THE JUDGMENT AND AWARD DATED: 25.09.2013 PASSED IN
MVC NO.2715/2012 ON THE FILE OF THE XX ADDITIONAL
C.M.M., MEMBER, MACT, BANGALORE (SCCH22) PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
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     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 dated 25.09.2013, passed by the

Motor Accident Claims Tribunal, XX Addl. Small Causes

Judge, Bangalore (for short hereinafter referred to as

'Tribunal'), in MVC No.2715/2012, wherein the claim

petition came to be allowed in part by awarding

compensation of Rs.3,07,400/- with interest at 6% p.a.

2. The appellant/claimant filed a claim petition

before the tribunal, claiming compensation for the

injuries sustained by him in road traffic accident which

occurred on 24.03.2012.

3. Brief case of the petitioner/claimant before

the tribunal is that on 24.03.2012 at about 2.30 p.m.,

when the claimant was traveling as a passenger in Auto

bearing Reg. No.TN-23-AK-9680 along with other

passengers, the driver of the said Auto lost control and

dashed against the stationary lorry bearing Reg.No.TN-

45-CO-577 from the rear side, due to which, the

petitioner and other passengers traveling in the said

auto sustained injuries. Immediately, the petitioner was

shifted to the Government Hospital, Vellore for first aid.

Thereafter, he was admitted to Yashomathi Hospital as

an in-patient. Hence, he filed a claim petition before the

tribunal, claiming compensation for a sum of

Rs.15,00,000/- with 12% interest per annum from the

date of petition till realization.

4. After service of notice, the 1st respondent

remained absent and he was placed exparte. The 2nd

respondent-insurance company appeared through its

counsel and filed its statement of objections denying,

the contents of the petition. It is also contended that

there was a violation of terms and conditions of the

policy as such, insurance company is not liable to pay

the compensation. However, it is admitted that the

policy of the said auto was in-force as on the date of

accident. With these main contentions, prayed to

dismiss the petition.

5. After considering the pleadings and

contentions of the parties, the tribunal framed the

following issues:

"1. Whether the petitioner proves that on 24.03.2012 at about 2.30 a.m., when the petitioner was traveling in Auto bearing No.TN-23-AK-9680 at Kadpadi to Vellore Road, opposite to Vasan Eye Hospital, the driver of it was driving in a rash and negligent manner and dashed against the stationed lorry bearing No.TN-05-C-0577 and due to the accident, he sustained injuries due to the actionable negligence on the part of the driver of the Auto bearing No.TN-23-AK-9680?

2. Whether the petitioner is entitled for compensation as prayed?

3. What order or award?"

6. Before the tribunal, the claimant himself got

examined as PW.1 and also got examined doctor as

PW2, and got marked 21 documents as Ex.P1 to P21

consisting of copy of FIR, copy of English Translation of

Ex.P1, copy of spot mahazar and copy of translation of

Ex.P3, copy of rough sketch, copy of translation of

Ex.P5, copies of MVA Reports, copy of charge sheet,

copy of translation of Ex.P9, copy of wound certificate,

copy of MLC intimation, copy of discharge summary,

medical bills, two advance bills, 12 prescriptions, x-

rays, CT-Scan and MRI Films, voter ID, IP Records. On

behalf of respondents' side, no evidence is adduced.

7. After hearing the arguments, the tribunal

awarded compensation of Rs.3,07,400/- with interest at

the rate of 6% per annum. Being not satisfied with the

quantum of compensation, the petitioner/claimant has

preferred this appeal.

8. Heard Sri.Mujtaba, learned counsel for the

appellant, Sri. Ravish Benni, learned counsel for

respondent No.2. Issuance of notice to respondent No.1

is dispensed with vide order dated 11.04.2017.

9. Learned counsel for the appellant has

argued that the tribunal has not properly appreciated

the evidence and not awarded compensation under

various heads and what is awarded is on the lower side.

The tribunal has erred in not awarding proper

compensation under the head pain and sufferings, loss

of amenities, loss of future earning due to disability. The

tribunal has taken notional income which is also on

lower side. Therefore, the 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 perused the appeal memo, impugned

judgment and award passed by the tribunal and also

records placed before this Court.

12. The finding of the tribunal that the accident

was occurred on account of rash and negligent driving

of the offending vehicle is proved and the liability of

insurance company is not challenged. Regarding

quantum of compensation, the appellant has filed this

appeal. Ex.P11 is the wound certificate which shows

that claimant has suffered small intracerebral bleeding

mid brains, fracture of left zygomatic complex including

left zygomatic arch, oblique fracture of left maxilla and

fracture of left mandibular condyle and right mandible

body. It is evident that the petitioner admitted in the

hospital from 25.03.2012 to 28.03.2012 and he has also

taken first aid treatment at Government Hospital,

Vellore on 24.03.2012. The tribunal after considering

the nature of injury, awarded sum of Rs.30,000/-

towards pain and suffering. Looking into the nature of

injuries and number of injuries, the amount awarded

under the head pain and suffering appears to be on the

lower side. Hence, the same is enhanced to Rs.40,000/-

instead of Rs.30,000/- awarded by the tribunal.

13. It is evident that the petitioner was

admitted to the hospital as an impatient for a period of

five days, thereafter, he took treatment at Vellore

hospital on 24.03.2012. After considering the nature of

injury, it is manifest that he requires some rest and he

needs to be attended by some attendant and he

requires proper food and nutrition during that time. The

petitioner is entitled for Rs.5,000/- under the head

attendant charges against Rs.625/- awarded by the

tribunal and Rs.5,000/- under the head conveyance &

nourishment expenses as against Rs.750/- awarded by

the tribunal.

14. Regarding loss of income during laid up

period, it is stated that, the petitioner was working as a

collie and doing centering work. The tribunal has taken

income of the injured at the rate of Rs.4,500/-

notionally. The accident occurred in the year 2012.

Therefore, in the absence of records, notional income to

be taken where there is no proof of income, in the Lok-

adalath chart which is usually considered for awarding

compensation in MVC cases in Lok-Adalath, for the year

2012, a sum of Rs.7,000/- is taken as notional income.

Therefore, the same is taken as notional income of the

petitioner. The appropriate multiplier applicable to the

petitioner's aged group is 18. The disability to the whole

body is taken at 10% Then, the loss of income due to

disability would be Rs.1,51,200/-(7,000X12X18X10%).

Hence, the said sum is awarded towards loss of future

earning as against Rs.97,200/- awarded by the tribunal.

15. The tribunal has awarded Rs.750/- under

the head loss of income during laid period. It is evident

from nature of injury that the petitioner could not have

attended his work for a period of two months in view of

the fracture, the claimant is entitled for Rs.14,000/-

under the head loss of income during laid up period as

against Rs.750/- awarded by the tribunal. The

compensation awarded under the other heads are just

and proper and the same is unaltered.

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.30,000/- Rs.40,000/- suffering

2. Attendant charges Rs.625/- Rs.5,000/-

3. Loss of income during Rs.750/- Rs.14,000/- laid up period

4. Food, diet and Rs. 750/- Rs.5,000/- nutrition

5. Medical expenses Rs.1,14,000/- Rs.1,14,000/-

6. Loss of future income Rs.97,200/- Rs.1,51,200/- due to disability

4. Conveyance and Rs.9,000/- Rs.9,000/- incidental charges

5. Loss of Discomfort Rs.15,000/- Rs.15,000/- and amenities of life

6. Future Medical Rs.25,000 Rs.25,000 Expenses

7. Loss of future Rs.15,000 Rs.15,000 prospects in life

Total Rs. 3,07,325/- Rs.3,93,200/- rounded off to Rs.3,07,400/-

17. In all, the appellant is entitled for an

enhanced compensation of Rs.85,800/- with interest at

6% per annum from the date of petition till the date of

realization. Accordingly, I pass the following:

ORDER

(i) The appeal is partly allowed;

(ii) The impugned judgment and award passed by Motor Accident Claims Tribunal, XX Addl. Small Causes Judge, Bangalore, having been modified, the petitioner is entitled for a total compensation of Rs.3,93,200/- (Rupees Three Lakhs Ninety Three Thousand Ttwo Hundred only), as against Rs.3,07,400/- awarded by the Tribunal. The enhanced compensation shall carry interest at 6% per annum from the date of petition till the date of realizaiton.

(iii) The 2nd respondent-insurance company shall

deposit the compensation amount within six

weeks from the date of receipt of a certified

copy of this order.

(iv) Rest of the order passed by the tribunal is kept in tact.

       (v)     Costs made easy.


       (vi)    Sent back the records to the tribunal.


                                                    Sd/-
                                                   JUDGE

JS/-