Ganesh @ Ganapathi Raju vs Shivakumar R
2021 Latest Caselaw 37 Kant

                               1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JANUARY 2021

                          BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

               M.F.A.No.10972 OF 2011 (MV)

BETWEEN:

Ganesh @ Ganapathi Raju,
S/o Venkataraju,
Aged about 35 years,
R/at No.2/58,
T.V.Narasimhapuram,
Palasamudra Mandalam,
Chittor District, A.P.State.
                                             ... Appellant

(By Sri.N.Madhusudhan, Advocate for
Sri. T.C. Sathish Kumar, Advocate)

AND:

1.     Shivakumar R.,
       S/o S.Rudraiah,
       Hindu Major,
       R/at Someshwara Temple Road,
       Dobbaspet Post,
       Nelamangala Tq,
       Bangalore Rural District.

2.     The Branch Manager,
       National Insurance Co. Ltd.,
       Branch Office,
       G.Muddappa Complex,
       I Floor, Vivekananda Road,
                             2



     Tumkur-572101.
                                          ... Respondents
(By Miss. Ranjitha, Advocate for
Sri. C.M.Poonacha, Advocate for R2:
Notice to R1 is dispensed with
v/o dated:17.04.2015 )

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 05.02.2011
passed in MVC No. 87/2009 on the file of the II Additional
Judge, Court of Small Causes, MACT, Bengaluru, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.

      This MFA, coming on for hearing, through video
conference, this day, this Court, delivered the following:

                    JUDGMENT

This appeal is filed by the claimant under Section

173(1) of the Motor Vehicles Act challenging the

judgment and award dated 05.02.2011 passed by the

Motor Vehicles Accident Claims Tribunal, Bengaluru

(SCCH.13) in MVC No.87/2009.

2. The brief facts of the case are that on

20.07.2008 at about 8.00 p.m. the claimant was

walking by the road side from Hiredoddavadi towards

Sathagatta. At that time, a motorcycle bearing

registration No.KA-04/EU-2711 came in a rash and

negligent manner and dashed against the claimant

and caused accident. As a result, he sustained injuries

and immediately he was shifted to the hospital.

3. The claimant filed a petition under Section

166 of the Act on the ground that he was working as a

driver and was earning Rs.9,000/- per month. It was

pleaded that he also spent huge amount towards

medical expenses, conveyance, etc. It was further

pleaded that the accident occurred purely on account

of the rash and negligent driving of the offending

vehicle by its driver.

4. On service of notice, the respondent Nos.1

and 2 filed separate written statements in which the

averments made in the petition were denied. It was

pleaded by respondent No.1 that the accident

occurred due to negligent crossing of the road by the

claimant without observing the traffic rules and

regulations. It was further pleaded that at the time

of the accident the rider of the motorcycle was holding

valid and effective DL and the offending vehicle was

insured with the respondent No.2 and the policy was

in force. The age, avocation and income of the

claimant and the medical expenses are denied. It was

further pleaded that the quantum of compensation

claimed by the claimant is exorbitant.

It was pleaded by respondent No.2 that at the

time of the accident the rider of the motorcycle was

not holding valid DL and since intimation was not

given by the insured, insurance company is not liable

to indemnify the insured and pay compensation to the

claimant. It was further pleaded that the accident

occurred due to unmindful crossing of the road by the

claimant himself and he is not entitled to

compensation. The involvement of the insured vehicle

was disputed since there is a delay of 8 days in

lodging the complaint. Hence, they sought for

dismissal of the petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1 and Dr.T.S.Raghavendra as PW-2

and got marked 17 documents as Exs.P1 to P17. On

the other hand, the respondents have examined

Dr.B.Bhagya, Medical Officer as RW-1, one

S.R.Veerendraprasad as RW-2 and an officer of the

insurance company as RW-3 and got marked 7

documents as Exs.R1 to R7. After appreciation of the

evidence, the Tribunal awarded compensation of

Rs.3,62,100/- with interest at 6% per annum and

directed the insurance company to pay the

compensation. Being not satisfied with the quantum of

compensation, the claimant has filed this appeal

seeking enhancement of compensation.

6. The learned counsel appearing for the

claimant has raised the following contentions:

Firstly, at the time of the accident the claimant

was working as a JCB driver and was earning

Rs.9,000/- per month + Rs.100/- as Bata per day, he

has also produced Ex.P13 - Employer's certificate to

prove his income, but the Tribunal is not justified in

assessing the notional income of the claimant as only

as Rs.4,500/- per month.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered permanent

physical disability of 45% to the right lower limb and

he is unable to continue his job as a driver. But the

Tribunal has failed to consider the functional disability

and also not considered addition of future prospects.

In support of his contention, he relied on the following

judgments of the Hon'ble Apex Court:

(1) Sandeep Khanuja vs. Atul Dande

and another ((2017) 3 SCC 351.

(2) Jagdish vs. Mohan and others

((2018) 4 SCC 571.

(3) Pappu Deo Yadav vs. Naresh

Kumar and others (2020 SCC Online SC

752).

Thirdly, due to the accident claimant has

suffered grievous injuries and he has undergone

surgery and he has to undergo one more surgery for

removal of implants. But the Tribunal has failed to

award any compensation for 'future medical

expenses'.

Fourthly, the compensation granted under the

other heads are on the lower side. Hence, he prays

for allowing the appeal.

7. Per contra, the learned counsel appearing

for the Insurance Company has raised the following

counter-contentions:

Firstly, even though the claimant claims that he

was a JCB driver and was earning Rs.9,000/- per

month and produced the employers certificate, he has

not examined the author of the said document and

therefore the Tribunal has rightly assessed the

notional income at Rs.4,500/- per month.

Secondly, even though the claimant claims that

he was working as a JCB driver, he has not produced

the driving licence to prove the same and he has also

not examined the employer. Since the claimant has

failed to prove his avocation, the Tribunal has rightly

not considered functional disability.

Thirdly, taking into consideration the evidence of

the doctor that there is permanent physical disability

of 45% to the right lower limb, the Tribunal has

rightly assessed 15% whole body disability.

Fourthly, since the doctor has not spoken about

the further surgery or future medical expenses, the

Tribunal has rightly not considered awarding of 'future

medical expenses'.

Fifthly, considering the oral and documentary

evidence, the Tribunal has granted just and

reasonable compensation. Hence, he prays for

dismissal of the appeal.

8. Heard the learned counsel for the parties.

Perused the original records, judgment and award

passed by the Tribunal.

9. It is not in dispute that the claimant

suffered injuries in the accident occurred due to the

rash and negligent riding of the offending vehicle by

its driver.

Even though the claimant has claimed that he

was earning Rs.9,000/- per month by working as a

JCB driver and also produced employer's certificate,

he has not examined the author of the said document.

Taking into consideration the materials available on

record, the Tribunal has rightly assessed the notional

income of the claimant as Rs.4,500/- per month.

In respect of disability is concerned, the doctor -

PW2 has assessed the permanent physical disability of

right lower limb at 45% and 15% whole body

disability. Since the claimant has not produced any

document to prove his avocation, the Tribunal has

rightly not considered the functional disability. The

judgments relied upon by the learned counsel

appearing for the claimant is not applicable to the

case on hand since in the case on hand the claimant

has not proved his avocation by examining the

employer or by producing the driving licence.

Taking into consideration of the evidence of the

doctor and wound certificate at Ex.P5, I am of the

opinion that the whole body disability can be assessed

at 25%. The claimant was aged about 32 years at the

time of the accident, the multiplier applicable to his

age group is '16'. Thus, the claimant is entitled to

Rs.2,16,000/- (Rs.4,500x12x16x25%) on account of

'loss of future income'.

The claimant was treated as inpatient for more

than 20 days in the hospital and he has undergone

surgery. He has to suffer the disability and

unhappiness throughout his life. Hence, the

compensation awarded by the Tribunal under the head

'loss of amenities' is enhanced from Rs.50,000/- to

Rs.70m,000/- and the amount awarded under the

head 'food, conveyance, attendant and nourishment'

is enhanced from Rs.20,000/- to Rs.25,000/-.

Since the claimant has not established that he

had incurred any sum for his further treatment, he is

not entitled to 'future medical expenses'.

The compensation awarded by the Tribunal

under other heads remains unaltered.

10. Thus, the claimant is entitled to the

following compensation:

As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 60,000 60,000 Medical expenses 70,000 70,000 Food, nourishment, 20,000 25,000 conveyance and attendant charges Loss of income during 22,500 22,500 laid up period Loss of amenities 50,000 70,000 Loss of future income 1,29,600 2,16,000 Total 3,52,100 4,63,500

The claimant is entitled to a total compensation

of Rs.4,63,500/-. The Insurance Company is directed

to deposit the entire compensation amount, along with

an interest @ 6% per annum, from the date of filing of

the claim petition till the date of realization, within a

period of six weeks from the date of receipt of the

certified copy of this judgment.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

Accordingly, the appeal is allowed in part.

Sd/-

JUDGE

Cm/-