Karnataka High Court

Sri.Raghu @ Raghu B.S vs Sri.Ramesh B.G on 18 December, 2021

Bench: K S Hemalekha

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 18TH DAY OF DECEMBER, 2021

                        BEFORE

        THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA

     MISCELLANEOUS FIRST APPEAL No.792/2015 (MV-I)


BETWEEN:

SRI RAGHU @ RAGHU B.S
S/O SHIVEGOWDA
AGED ABOUT 28 YEARS
R/AT NO.94/6
4TH CROSS
2ND MAIN
BEGUR MAIN ROAD
HONGASANDERA
BOMMANAHALLI
BANGALORE.
                                          ...APPELLANT
(BY SRI SRIDHAR A.G, ADVOCATE)

AND:

1.     SRI RAMESH B.G
       S/O B.S GOPALA
       BELAGULA VILLAGE
       NARVE POST
       KOPPA TALUK
       CHIKKAMAGALURU
       (OWNER OF THE LORRY BEARING
       REG.NO.KA-18-8133)

2.     M/S IFFCO TOKIO GENERAL
       INSURANCE CO.LTD.
       NO.2, 1ST FLOOR
       SNR ARCADE
       AYYAPPA TEMPLE ROAD
       JALAHALLI CROSS
                          -2-


     PEENYA
     BANGALORE - 560057
     REP. ITS MANAGER
     (INSURER OF THE LORY BEARING
     REG.NO.KA-18-8133)
     POLICY NO.825994749

3.   MANJUNATH C
     S/O CHIKKAPILLAIAH
     AGED BYMAJOR
     SONNENAHALLI VILLAGE
     DEVANAHALLI TALUK
     BANGALORE RURAL DISTRICT.
                                        ...RESPONDENTS
     (BY SRI D.V. JAYAKUMAR, ADVOCATE FOR
     R2 NOTICED TO R1 & R3 D/W)
                        ****
     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, PRAYING TO AGAINST THE
JUDGMENT AND AWARD DATED 22.11.2014 PASSED IN MVC
NO.944/2013 ON THE FILE OF THE 13TH ADDITIONAL SMALL
CAUSE JUDGE, MEMBER, MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                   JUDGMENT

The claimant has preferred this appeal seeking

enhancement of compensation assailing the judgment and

award of the XIII Addl. Small Cause Judge & Motor

Accident Claims Tribunal at Bengaluru ("Tribunal"), in

MVC.No.944/2013, dated 22/11/2014 on the question of

quantum of compensation only.

2. The appellant/claimant filed the claim petition

under Section 166 of the Motor Vehicles Act, 1988

(hereinafter referred to as "the Act") seeking

compensation on account of the injuries sustained by him

in a road accident that occurred on 23/01/2013.

3. According to the claimant, on the said date at

around 5.30 a.m., when he was proceeding on Meru car

bearing registration No.KA-03 D-6095 as a driver from

Bengaluru International Airport towards Bengaluru City at

Meenukunte Hosur Junction, NH7 near Chikkajala, a lorry

bearing registration No.KA-18/8133, came with a high

speed and in a rash and negligent manner from

Devanahalli towards Bengaluru and the driver of the lorry

tried to overtake the car from the right side and suddenly

took a turn without giving any signal and dashed against

his car. It is contended that due to the impact, his car was

totally scrapped and the claimant suffered grievous injuries

all over his body. The accident took place solely due to the

negligent driving of the lorry driver and thus, respondent

No.1/owner of the car and respondent No.2 being the

insurer are jointly and severally liable to pay the

compensation. Due to the accident the claimant suffered

multiple injuries.

4. In response to the notice, respondent No.1

remained ex parte and respondent No.2 who is the

insurance company appeared through its counsel and filed

objections and contended that it has issued policy with

regard to the lorry, but not in the name of respondent

No.1. On the other hand, it has been issued in the name

of respondent No.3/Sri Manjunath, son of Chikkapillaiah,

Sonnenahalli Village, Devanahalli Taluk, Bengaluru Rural

District. It was also contended that its liability is subject

to the terms and conditions of the policy. Further, it was

contended that the insured willfully entrusted the lorry to

the driver Lakshmaiah, son of Thirumallappa who had no

valid driving licence to drive the lorry. Therefore, there is

breach of policy conditions.

5. Respondent No.2/insurance company further

contended that the accident took place due to the

negligent driving of the car by the claimant and as per the

MV report, the hind portion of the lorry was damaged and

the car's front portion was damaged. Accordingly, the

accident took place solely due to the rash and negligent

driving of the appellant himself and thus, sought to dismiss

the petition.

6. On the basis of the rival contentions, the

Tribunal framed the following issues for its consideration:

(i) Whether the petitioner proves that he has sustained injuries in RTA arising out of accident alleged to have been taken place on 23/03/2013 at about 5.30 a.m. near Meenukunte, Hosur Junction, NH-7, Chikkajala due to the rash and negligent driving of the lorry bearing registration No.KA-18/8133?

(ii) Whether petitioner is entitled for compensation? If so, what amount and from whom?

(iii) What order or award?

7. In order to prove their respective contentions,

the claimant examined himself as PW.1, the eyewitness by

name Shek Hyder as PW.2 and the doctor who assessed

the disability was examined as PW.3 and got marked 26

documents.

8. The respondent No.2 got examined the

Assistant Manager as RW.1 and the ARTO of Devanahalli

as RW.2 and got marked 8 documents. During the cross-

examination of respondent No.3 confronted and exhibited

Ex.R-12 the alleged statement of the respondent No.3

before the Investigator and thus, he exhibited 9

documents and closed his side.

9. The Tribunal on assessing the material on

record, allowed the petition in part awarding compensation

of Rs.5,58,000/- with interest at 8% per annum from the

date of claim petition till the date of realisation in its

entirety from respondent No.2.

10. Heard learned counsel for the appellant and

learned counsel for the respondent/insurance company and

perused the material on record.

11. Learned counsel for the appellant/claimant,

would contend that the award of compensation of

Rs.5,58,000/- is without appreciating the documentary

evidence and the nature of injuries suffered by the

claimant. He further contended that the business

transaction bill in which the appellant/claimant was doing

business and was earning a sum of Rs.64,719/- per month

and out of which he was saving about Rs.30,000/-, after

deducting all the expenses is not considered by the

Tribunal. He also contended that the Tribunal has

considered the fact that the claimant being a driver was

earning Rs.30,000/- per month. He further contended that

the wound certificate Ex.P-6, discloses that the appellant

sustained the following injuries:

(a) Comminuted right humerus,

(b) Fracture of deep lacerated wound over chin,

(c) Fracture CLW over left forearm,

(d) Fracture of both nasal bones,

(e) Fracture of both orbits lat and in walls

(f) Fracture of both maxilla all walls,

(g) Fracture of right zygmatic arch,

(h) Fracture of left mandibular fossa,

(i) Fracture of left condyle of mandible,

(j) Fracture of body of mandible,

(k) Fracture of both pterygoid plates,

(l) Fracture of alvedar process of maxilla,

(m) Fracture of bilater TM joint dislocation.

Corroborating with the evidence of doctor PW.3, the

Tribunal has not analysed the disability properly. He also

contended that the inpatient bill at Ex.P-13 is not taken

into consideration by the Tribunal and the award of

Rs.30,000/- for the removal of implant from the humerus,

facial bones and masseter release is on the lower side and

award of Rs.50,000/- towards pain and suffering also

requires to be enhanced as there are serious injuries

sustained by the claimant and thus, sought to re-assess

the award of compensation and the same may be

enhanced.

12. Per contra, learned counsel for the respondent

No.2, would contend that the award of compensation is

just and proper and the manner in which it has been

assessed would not call for interference in this appeal

rather than the award of interest on the said compensation

at the rate of 8% per annum is on the higher side and that

if the Court enhances the compensation, then the rate of

interest has to be reduced to 6% per annum as this is the

rate of interest at which this Court would normally award.

13. Having heard learned counsel for the

respective parties, the following points would arise for

consideration of this Court:

(i) Whether the claimant is entitled for enhanced compensation?

(ii) Whether the rate of interest awarded by the Tribunal calls for interference?

14. It is not in dispute between the parties with

regard to the date and time of accident, vehicles involved

in the accident and the respective drivers caused the

accident. Exs.P-1 to P-5 produced by the claimant in

- 10 -

support of his case clearly reflect that the jurisdictional

police had initially registered a criminal case against the

lorry driver for the offences punishable under Sections 279

and 337 of the Indian Penal Code, 1860 and Section 134

(a) and (b) read with Section 187 of the MV Act.

Initially, respondent No.2 has specifically stated that

if the police papers, particularly the spot mahazar and MV

report are taken into consideration, they clearly show that

the accident took place due to the rash and negligent

driving of the driver of the car and not the lorry driver as

contended by the claimant. However, during the cross-

examination, he has admitted the suggestion that the lorry

driver is charge sheeted for the accident in question as per

Ex.P-5.

15. It has been admitted during the cross-

examination that the car driver was proceeding on the

right side of the road and the same is also shown in the

spot mahazar and MV report. Hence, it appears that the

lorry driver who was proceeding on the left side of the

- 11 -

claimant's vehicle while overtaking the car came towards

right side and dashed against the front portion of the car.

16. The trial Court taking into consideration the

oral evidence of the claimant and the doctor-PW.3 and the

supportive evidence of medical record observed that the

claimant has suffered injuries in the accident. The wound

certificate produced by the claimant at Ex.P-6 would show

that the claimant suffered injuries as in 'a' to 'm' (supra).

However, in his cross-examination he has admitted that he

had suffered severe injuries on the face and voluntarily

deposed that he had suffered fracture of right humerus.

He also admitted that the wounds have been healed and

the fracture has been united, but contended that he cannot

open his mouth and has severe pain.

17. It is undisputed fact that the claimant is

working as a driver in M/s.Meru Cab Company Private

Limited. PW.3/doctor has been examined on behalf of the

claimant and has admitted that the claimant was an

- 12 -

inpatient from 25/01/2013 to 31/01/2013 and diagnosed

about the injuries suffered by him due to the accident.

However, in his cross-examination he has categorically

stated that the fractures are united and that he has not

issued any separate disability certificate. He has assessed

the disability of the claimant to 20% to the face which will

no way come in the way of functional ability of the

claimant.

18. The Tribunal assessing the evidence of P.Ws.1

to 3 and Exs.P.1 to P.5 and the evidence of R.W.1 held

that the claimant has proved that he has suffered the

injuries due to the said accident. In so far as quantum of

compensation, though P.W.1 has contended that he is a

driver and was earning around Rs.30,000/- but no

documents are produced to corroborate his evidence that

he was earning Rs.30,000/-. Thus the Tribunal held it

proper to take notional income of the claimant at

Rs.8,000/- per month and applying the multiplier 17

awarded Rs.1,95,840/- towards loss of future income

- 13 -

which this Court thinks does not require interference.

Insofar as award of compensation under other heads, the

Tribunal has rightly awarded the compensation looking into

the nature of injuries suffered by the claimant. The

Tribunal also has taken 12% as whole body disability.

Thus the award of compensation by the Tribunal at

Rs.5,58,000/- with interest at 8% per annum is just and

proper. Tribunal has awarded compensation of

Rs.5,57,840/- under the heads mentioned below:

  Pain and suffering                        Rs.    50,000/-
  Loss of income during the laid up
  Period, diet, nutrition, nourishment      Rs.    30,000/-
  Attendant     charges     and    other
  incidental                                Rs.    30,000/-
  charges
  Medical expenses                          Rs.1,22,000/-
  Future medical expenses                   Rs. 30,000/-
  Loss of future income                     Rs.1,95,840/-
  (8000x12x12/100x17)
  Loss of amenity and comfort               Rs. 50,000/-
  Permanent physical impairment             Rs. 50,000/-
                 TOTAL                      Rs.5,57,840/-

      19.     However,    this     Court,     looking      into    the

contentions     raised    by     the     respective     parties,   the

question      whether       the     claimant       is   entitled    to

enhanced compensation has to be considered.

- 14 -

Looking into all the aspects of the matter, this Court is of

the opinion that there is no scope for enhancement of

compensation and the awarding of interest at 8% per

annum, though is on the higher side, in the facts and

circumstances of the present case does not call for

interference.

20. In the circumstances, the compensation of

Rs.5,57,840/- with interest at 8% per annum awarded by

the Tribunal is just and proper. However, looking into the

facts of the present case, it is just and proper to award a