N Prakash vs K R Suresh
2021 Latest Caselaw 21 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF JANUARY, 2021

                         BEFORE

 THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

               MFA NO.1318 OF 2017 (MV)

Between:

N.Prakash
S/o Narayana Poojari
Aged about 32 years
R/o Gavatooru
Ripponpete
Hosanagara Taluk
Shimoga District.                       .... Appellant

(By Ms. Vijaya M.N, Advocate)

And:

1.      K.R.Suresh
        S/o K.S.Rameshgowda
        Age Major
        R/o Kuswara, Kushavara
        Beluru Taluk, Hassan District
        Rider of Bajaj Discovery Bike
        Bearing Reg No.KA-18-U-5694

2.      Abdul Razak
        S/o Abbu Byari
        Age Major
        Owner of ajaj Discovery Bike
        Bearing Reg No.KA-18-U-5694
        R/o Kuduregundi Village
        Koppa Taluk
        Chikkamagalooru District

3.      The Branch Manager
        Universal Sompo General
        Insurance Company Limited
                                  2




      Registered Office - 201-208
      Cristal Plaza, in front of Infinity
      Mall Link Road, Anderi
      West Mumbai - 400 058                       ... Respondents

(By Sri. Abdul Razak, Adv. For R2,
 Sri Ravi.S.Samprathi, Advocate for R3,
 V/o dated 14.02.2020, Notice to R1 d/w)

      This MFA is filed under Section 173(1) of the Motor
Vehicles Act against the judgment and award dated
17.09.2016 on the file of the Senior Civil Judge &
J.M.F.C, member, Additional MACT-9, Sagar, 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 claimant seeking

enhancement of the compensation awarded by the

Senior Civil Judge & JMFC and Additional MACT,

Sagar (henceforth referred to as 'Tribunal') in

MVC No.186/2012.

2. Though, this appeal is listed for

admission, the same is taken up for final disposal

with the consent of the learned counsel for the

parties.

3. The parties are referred to as they were

arrayed before the Tribunal.

4. The judgment and award passed by the

Tribunal discloses that on 01.01.2012 when the

claimant was riding pillion on a motorbike and was

returning from Shikaripura to Ripponpet on a Bajaj

Discovery Bike bearing registration No.KA-18-U-

5694. When they reached Vadagere, the rider of the

bike lost control and fell down. As a result, the

claimant suffered lacerated wound on the right knee,

fracture of tibia, fracture of clavicle joint, fracture of

right little finger and injuries to right hand, head and

left ear. The claimant was shifted to Ripponpet

Government Hospital, where he was administered

first aid and thereafter shifted to Nanjappa Hospital,

Shivamogga. The claimant underwent treatment for a

period of 28 days and alleged that he spent a sum of

Rs.1,20,000/- towards medical expenses. The

claimant claimed that he was a painter and was

earning a monthly income of Rs.15,000/- per month.

He therefore, contended that as a result of the

accidental injuries, he was deprived of his ability to

earn from his avocation. Therefore, the claimant filed

a claim petition under Section 166 of Motor Vehicle

Act claiming compensation of a sum of Rs.9,50,000/-

5. The claim petition was contested by the

insurer of the bike. The insurer denied the averments

of the claim petition as well as avocation and income

of the claimant. It also contended that the

compensation claimed by the claimant was excessive

and as the rider of the bike did not possess a driving

license, it was not liable to pay compensation. With

these rival contentions, the claim petition was set

down for trial.

6. The claimant was examined as PW.1, a

witness was examined as PW.2 and a doctor who

treated the claimant was examined as PW.3 and they

marked Exs.P.1 to P17. The insurer examined its

official as RW.1 and marked Ex.R.1 to R3.

7. The Tribunal noticed from Ex.P.6 that the

claimant had suffered the following injuries:

i) Lacerated wound over right knee joint

region with bleeding

ii) Fracture of left clavicle bone

iii) Condylar Fracture right knee

iv) Fracture neck of right leg, fibula bone

v) Fracture of left mastiod temporal bone.

8. It also noticed that claimant was admitted

on 02.01.2012 and discharged from hospital on

21.01.2012. It noticed evidence of PW2 that claimant

was treated conservatively at Mc. Gann Hospital,

Shivamogga for nearly 20 days. It also noticed that

claimant had not produced any proof of income and

therefore, it considered the notional income of the

claimant at a sum of Rs.4,000/- per month and

having regard to the evidence of PW2, assessed

disability at 20.26% to the limb and at 7% to the

whole body and awarded the following compensation:

         Heads under which                   Amount
       compensation awarded                  (in Rs.)
     For pain and sufferings,                    30,000
     mental agony
     For Medical expenses                    01,800,000
     For travelling and special                  15,000
     diet
     For loss of earning during               16,000.00
     treatment period
     For permanent Physical                   53,760,00
     disability
                  Total                     1,16,560.00

9. Feeling aggrieved by the quantum of

compensation awarded by the Tribunal, the claimant

is in appeal and contends that since he had suffered

more than two fractures, the Tribunal ought to have

awarded just compensation towards pain and

suffering/loss of amenities. Having regard to the

functional disability that the injury had caused to the

claimant who was a painter by profession, the

Tribunal ought to have awarded just compensation. It

is also contended that the Tribunal ought to have

considered the notional income of the claimant at

7,000/- per month as is done by this Court in cases

referred to Lok Adalath for settlement. Therefore, he

prays that the compensation awarded by the Tribunal

be modified and enhanced.

10. Per contra, the insurer vehemently

contended that the Tribunal was justified in awarding

compensation of Rs.1,16,560/-.

11. I have given my anxious consideration to

the arguments advanced by both the parties.

12. It is seen that the claimant had suffered

fracture of left clavicle bone, condoylar fracture at

right knee, fracture of neck of right leg, fibula bone,

fracture of left mastoid temporal bone. Under the

circumstances, the compensation awarded for pain

and suffering as well as the loss of amenities deserves

enhancement. As rightly contended by the learned

counsel for the claimant, the notional income of the

claimant must have been considered at Rs.7,000/-

per month as is done by this Court in matters

referred to Lok Adalath for settlement. The Tribunal

failed to award compensation towards 'Loss of

amenities' and 'future medical expenses'. If the above

is taken into consideration, then it is imperative that

compensation awarded by the Tribunal deserves to be

enhanced. Hence, the compensation to which

claimant is entitled to is re-determined as follows:

          Heads under which                  Amount
       compensation awarded                  (in Rs.)
     For pain and suffering,                      50,000
     mental agony
     For Medical expenses                          1,800
     Conveyance, attendant                        25,000
     charges towards special
     diet
     For loss of income of                   94,080.00
     Rs.7,000/- per month due
     to disability at 7% to the
     whole body
     Loss of income during laid              21,000,00
     up period of 3 months
     Loss of amenities                       35,000.00
     Future medical expenses                 20,000.00
                 Total                    2,46,880.00

13. In view of the above, the appeal filed by

the claimant is allowed in part and the

compensation of Rs.1,65,560/- awarded by the

Tribunal is enhanced to Rs.2,46,880/- along with

interest at the rate of 6% per annum from the date of

petition till the date of realization. Insurer to deposit

the enhanced compensation within one month and

any deposit made shall be adjusted thereto.

Sd/-

JUDGE

nms