Karnataka High Court
Teju Raj vs N Naga Reddy on 5 January, 2021
Author: Alok Aradhe Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
M. F. A. No.8211/2015 (MV-I)
BETWEEN :
Teju Raj,
S/o. Chaganraj,
Aged about 24 years,
R/at SIT College Hostel,
Tumkur - 572 101. ...Appellant
(By Sri. Shantharaj K. Advocate)
AND :
1. N. Naga Reddy,
Age Major,
R/at No.331, 1st Main Road,
2nd Cross, Malleswaram,
Bengaluru - 560 003.
2. The New India Assurance Co. Ltd.,
Rep. by its Manager,
No.65, Eshwar Complex,
Dr. Rajkumar Road,
Bengaluru - 560 021. ...Respondents
(Sri. C.R. Ravishankar, Advocate for R2;
Vide order dated 01.12.2015
notice to R1 is dispensed with)
2
This M.F.A. is filed under Section 173(1) of MV Act
against the judgment and award dated 03.07.2015 passed
in MVC No.207/2012 on the file of the Additional Senior
Civil Judge, MACT-XI, Tumakuru, partly allowing the claim
petition for compensation and seeking enhancement of
compensation.
This M.F.A.
Coming on for order, this day,
V. Srishananda J., delivered the following:
JUDGMENT
Claimant in this appeal has challenged the validity of
the judgment and award dated 03.07.2015 passed in
M.V.C.No.207/2012 by the Addl. MACT, Tumakuru
(hereinafter referred to as the 'Tribunal').
2. The brief facts which are necessary for disposal
of the appeal are as under:
A claim petition came to be filed by the claimant
under Section 166 of the I.M.V. Act contending that on
17.06.2011 Sri. Teju Raj (hereinafter referred to as the
'injured') was proceeding on a motor cycle bearing
registration No.KA-06 W-4498 as a pillion rider, when they
reached near Aswini College, Maralur, Tumkur, at about
04.45 P.M., rider of another motor cycle bearing
registration No.KA-02 HE-2976 came in a rash and
negligent manner and dashed against the motor cycle on
which the injured was traveling whereby the rider and the
pillion rider fell down and sustained grievous injuries and
they were shifted to the hospital. It is further contended
that the injured has to spend huge sum of money towards
the medical expenses and has also lost earning capacity
due to the permanent disability sustained by him on
account of the accidental injuries and thus, sought for
awarding a suitable compensation.
3. In response to the notice issued, both the
respondents appeared before the Tribunal and filed their
objection statement denying the claim petition averments
in toto and sought for dismissal of the petition. Based on
the rival contentions, Tribunal raised the following issues:
1) Whether the petitioner proves that
on 17.06.2011 at about 4.45 p.m. when he
was proceeding on his motorcycle bearing Reg.
No.KA-06-W-4498 near Aswini College,
Maralur, Tumkur he met with an accident due
to actionable negligence on the part of the
rider of bike bearing Reg.No.KA-02-HE-2976
and sustained multiple injuries as contended?
2) Whether the petitioner is entitled
for compensation? If so what is the quantum?
3) What order?
4. In order to prove the claim petition averments,
injured got himself examined as PW1 and relied on the
documentary evidence which are exhibited and marked as
Ex.P1 to Ex.P12. The main documents, Ex.P2 is Wound
Certificate, Ex.P3 is the Certificate issued by Aditya
Orthopaedic and Trauma Centre, Ex.P4 and Ex.P5 are the
Discharge Summaries, Ex.P6 is the Disability Certificate.
Ex.P12 is the Salary Certificate issued by Motilal Oswal
Financial Services Ltd. On behalf of the respondents,
officer of the Insurance Company is examined as RW1 and
R1-Investigating report is marked.
5. On cumulative consideration of the oral and
documentary evidence on record, the Tribunal allowed the
claim petition in part and awarded a sum of Rs.1,00,500/-
as compensation together with interest at 6% p.a. from
the date of the petition till the realization.
6. It is that judgment which is under challenge in
this appeal questioning the quantum of compensation.
7. Learned counsel for the appellant-
Sri.Shantharaj K., vehemently contended that the Tribunal
grossly erred in awarding meager compensation on all
heads. He further contended that the Tribunal did not
award any compensation on the head of 'loss of future
earnings' on account of the disability sustained by the
injured vide Ex.P6. He also contended that the Tribunal did
not take into consideration that the injured has lost his job
on account of the accidental injuries and suitable
compensation be awarded on the said head. In support of
his arguments he relied on the judgment of the Hon'ble
Apex Court in the case of ERUDHAYA PRIYA Vs. STATE
EXPRESS TRANSPORT CORPORATION LTD., reported
in 2020 SCC ONLINE SC 601 and he drew attention to
paragraph 10 of the said judgment and sought for
awarding suitable compensation on the head of 'loss of
future earnings'.
8. Per contra, learned counsel -
Sri.C.R.Ravishankar, for the 2nd respondent-Insurance
company vehemently contended that the Tribunal has
taken into consideration all relevant materials on record
and passed an appropriate award and prayed for dismissal
of the appeal. He also contended that in the absence of
the evidence by the Doctor who is alleged to have treated
the injured, the Tribunal was right in rejecting the claim of
the claimant on the head of 'loss of future earnings' and
prayed for dismissal of the appeal. Further, he also
contended that the facts involved in the judgment of the
Erudhaya Priya's case referred to by the learned counsel
for the appellant, are all together different from the facts
available on record and thus, sought for dismissal of the
appeal.
9. In view of the rival contentions, the sole point
that would arise for consideration, is:
(i) Whether the quantum of compensation
as adjudged by the Tribunal is just
compensation?
10. The answer to the above point is in the partly
negative for the following:
REASONS
11. In the case on hand, the injury sustained by
the claimant-Sri. Teju Raj on account of the accident
involving motor cycle bearing registration No.KA-06 W-
4498 and motor cycle bearing registration No.KA-02 HE-
2976 at about 04.45 P.M. near Aswini College, Maralur,
Tumkur, is not disputed.
12. In order to prove the claim, injured- claimant
got himself examined as PW1. He has produced Ex.P6
which is the Disability Certificate. But to prove, to what
extent is the disability that the injured claimant has
sustained, he did not choose to examine the doctor who
issued Ex.P6-Disability Certificate or the doctor who
treated him in the hospital. What prevented the injured in
placing such evidence on record before the Tribunal is not
explained by the learned counsel for the appellant before
this Court also. It is seen from Ex.P6-Disability Certificate
that the injured was required to review after an year to
assess the exact disability sustained by the injured on
account of the accidental injuries. Admittedly, injured did
not got re-assessed about his disability after an year as
mentioned in Ex.P6. No other evidence is available on
record to show that infact the injured lost his job on
account of the accidental injuries. No oral or documentary
evidence is also produced by the injured-claimant to
establish that he lost the job. On the contrary, it is found
from para 18(d) of the impugned judgment that for the
month of November 2011, he has received a sum of
Rs.15,324/- as per Ex.P12. If at all the injured has lost
the job as contended by him, he would not have received
salary for the month of November 2011 as the accident
has taken place on 17.06.2011.
13. These aspects of the matter has been properly
appreciated by the Tribunal while passing the award.
Tribunal has taken the monthly income at the rate of
Rs.3,500/- per month for computing the 'loss of income
during the laid up period'. Further, on the head of 'pain
and sufferings' also the Tribunal has awarded a sum of
Rs.25,000/-. As per Ex.P2, he has sustained the following
injuries:
1. Grievous: Grade I compound fracture BIB
of (R+) leg
2. Grievous: Grade II compound comminuted
calcarneum fracture (R+)
3. Grievous: Grade III compound medical
malleoli (R+)
4. Grievous: Tibialis Pasterius tendur injury
(R+)
5. Grievous: F.H.L tendur injured (R+)
14. In view of the injuries noted in Ex.P2, this
Court is of the considered opinion that on the head of 'pain
and sufferings', the injured is entitled for enhanced
compensation of Rs.40,000/-. Insofar as 'medical
expenses' are concerned, the Tribunal has awarded
Rs.40,000/- and in this regard, the Tribunal has discussed
in detail in para 18(b) of the impugned judgment and has
come to the conclusion that some of the medical bills
produced by the injured-claimant prima-facie appears to
have been created and there are no receipts for having
paid such amount. But, having regard to the fact that the
injured has sustained three fractures as per Ex.P2, it is
appropriate to add another sum of Rs.25,000/- towards
'medical expenses'. Under the heads 'Conveyance
charges', 'Food and Nourishment expenses' and 'Attendant
Charges', the Tribunal has awarded Rs.5,000/- each, which
are enhanced to addition of Rs.5,000/- each. Insofar as
the income of the injured-claimant is concerned, the
Tribunal has computed and assessed the notional income
at Rs.3,500/- per month. For an accidental claim of the
year 2011, this Court and Lok Adalaths, would normally
assess the income at Rs.6,500/- per month in the absence
of formal proof thereof. In the case on hand, though the
injured has marked Ex.P12 to show that he was earning
monthly income of Rs.15,000/-, in the absence of author
of the document being not examined, Tribunal has
assessed the monthly income at Rs.3,500/-. As such, the
notional income if assessed at Rs.6,500/-, the injured-
claimant would be entitled to an additional sum of
Rs.9,000/- on 'loss of income during laid up period'. On
the 'loss of amenities' Tribunal has awarded Rs.10,000/-,
which is on the lower side and on this score, claimant is
entitled to an additional sum of Rs.20,000/-.
15. We have carefully considered the judgment
relied on by the learned counsel for the appellant. Insofar
as the 'loss of future earnings' is concerned, as rightly
contended by the learned counsel for the second
respondent-Insurance Company, the facts involved in the
said case and in the case on hand are all together
different. Further, there is no evidence placed by the
injured-claimant to assess the extent of disability and
whether it is permanent or temporary. Under the said
circumstances, we deem it proper not to award any
amount on the head of 'loss of future earnings'.
Accordingly, in all claimant is entitled amount as under:
Accordingly, as against Rs.1,00,500/- claimants are
entitled to following sums:
1 Pain and Sufferings 65,000
2 Medical Expenses 65,000
3 Conveyance charges 10,000
4 Food and Nourishment expenses 10,000
5 Attendant Charges 10,000
6 Loss of income during laid up 19,500
period
7 Loss of amenities and 30,000
unhappiness
Total 2,09,500
In view of the aforesaid discussion, point is answered
and we pass the following order:-
ORDER
Appeal filed by the claimant is
allowed in part.
In modification of the judgment
and award of the Tribunal, the claimants
are entitled to a sum of Rs.2,09,500/-
along with interest at the rate of 6%
p.a., from the date of petition till
realization as against a sum of
Rs.1,00,500/- awarded by the Tribunal.
Amount in deposit, if any, is
ordered to be transmitted to the
Tribunal.
Insurance Company is directed to
deposit/pay the compensation within six
weeks from the date of receipt of this
order.
Office to pass modified award.
Sd/-
JUDGE
Sd/-
JUDGE
SV
