Karnataka High Court
Kantharaju vs Mahadeva on 4 January, 2021
Author: Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
MISCELLANEOUS FIRST APPEAL NO.3722 OF 2017 (MV-I)
BETWEEN:
KANTHARAJU
S/O LATE PUTTASWAMYGOWDA,
NOW AGED ABOUT 40 YEARS,
R/AT NEAR RAMAMANDIRA,
ADUVALLI EXTENSTION,
HASSAN.
... APPELLANT
(BY SRI. RAGHU R., ADVOCATE)
AND:
1. MAHADEVA,
MAJOR,
S/O BEEREGOWDA,
R/A NEAR HELIPAD,
UDAYAGIRI EXTENSION,
HASSAN-573201.
2. THE MANAGER
THE NEW INDIA ASSURANCE COM., LTD.,
BRANCH OFFICE,
HARSHAMAHAL ROAD,
HASSAN-573201.
... RESPONDENTS
(BY SRI. E.I. SANMATHI, ADVOCATE FOR RESPONDENT
NO.2;
2
NOTICE TO RESPONDENT NO.1 IS DISPENSED WITH VIDE
COURT ORDER DATED 31.01.2020)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED
02.02.2016 PASSED IN MVC NO.1099/2014 ON THE FILE
OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MACT,
HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant seeking
enhancement of compensation awarded by the II
Additional Senior Civil Judge and Motor Accident Claims
Tribunal, Hassan (henceforth referred to as the 'Tribunal')
in MVC No.1099/2014.
2. The appellant herein will henceforth be
referred to as the 'claimant' and respondent Nos.1 and 2
herein will henceforth be referred to as the 'owner' and
'insurer' respectively of the offending vehicle involved in
the accident.
3. The claim petition discloses that on 17.11.2013
at about 5:45 p.m., when the claimant and his friend were
walking behind Sub-Registrar's office, Kuvempu Nagara,
Hassan, the rider of a Bajaj Discovery bike bearing
registration No.KA-13-EA-7254 (henceforth referred to as
the 'offending bike') dashed against the claimant from
behind and caused serious injuries. As a result, the
claimant suffered type II open fracture of both the bones
of left leg, tenderness over his left knee, tenderness over
TL spine, tenderness over pelvis and acromio-clavicular
right dislocation and injuries to the other parts of the body.
The claimant was shifted to Janapriya hospital, Hassan,
where he underwent treatment for a period of one month
and spent a sum of Rs.1,25,000/- towards medical
expenses. The claimant claimed that he was an auto
driver and was earning Rs.20,000/- per month and as a
result of the injuries, he was unable to earn his livelihood.
He therefore, filed a claim petition under Section 166 of
the Motor Vehicles Act, 1988 claiming compensation of
Rs.8,00,000/- from the owner and insurer of the offending
bike.
4. The claim petition was contested by the insurer
of the offending bike. It denied the accident, avocation,
injuries and claimed that the rider of the offending bike did
not possess a driving licence to drive it.
5. Based on the aforesaid rival contentions, the
claim petition was set down for trial. The claimant was
examined as PW.1 and the Doctor, who treated the
claimant was examined as PW.2 and they marked
documents as Exs.P1 to P14, while the insurer examined
its officer as RW.1 and marked a document as Ex.R1,
which was a letter of authorization.
6. The Tribunal held that the accident was due to
the negligence on the part of the rider of the offending
bike and that he was solely responsible for it. This finding
of the Tribunal is not challenged by the Insurer and is thus
allowed to rest.
7. The Tribunal noticed that the claimant had suffered
the following injuries:
1. Type II Open fracture of both bones of the left leg.
2. Tenderness over left knee.
3. Tenderness over TL spine.
4. Tenderness over pelvis.
5. Acromio-clavicular dislocation right.
8. It also noticed the evidence of PW.2-Doctor, who
deposed that the claimant had suffered disability to an
extent of 32% to his left lower limb and therefore,
considered his disability to the whole body at 8%. The
Tribunal treated the income of the claimant at a sum of
Rs.5,000/- per month and having regard to the injuries
sustained by him, awarded the following compensation:
Heads under which compensation is Amount
awarded (in Rupees)
Pain and suffering 45,000/-
Medical expenses incurred and future 1,27,072/-
medical expenses, attendant,
conveyance, nourishing food, and other
incidental expenses
Loss of income during laid-up period 15,000/-
Loss of future income on account of 72,000/-
permanent disability
Loss of amenities, life comforts and 15,000/-
expectancy of life
TOTAL 2,74,072/-
9. Feeling aggrieved by the quantum of
compensation awarded by the Tribunal, the claimant is in
appeal.
10. Learned counsel for the claimant contended
that the Tribunal ought to have awarded adequate
compensation by treating his notional income at a sum of
Rs.8,000/- per month. Learned counsel also contended
that the Tribunal ought to have awarded reasonable
compensation towards pain and suffering undergone by
the claimant due to the injuries sustained by him as a
result of the accident.
11. Learned counsel for the insurer, however,
contended that the Tribunal was justified in awarding
compensation of Rs.2,74,072/- and contended that the
Tribunal ought not to have awarded interest at 8% per
annum. Therefore, learned counsel for the insurer pleaded
that the judgment and award of the Tribunal may be left
undisturbed. However, he further contended that if this
Court were to hold that the claimant is entitled for
enhancement of compensation, then to reduce the rate of
interest awarded by the Tribunal.
12. It is seen from Ex.P6 - wound certificate that the
claimant had suffered the following injuries:
1. Type II open fracture of both bones of left leg.
2. Tenderness over left knee.
3. Tenderness over TL spine.
4. Tenderness over pelvis.
5. Acromio-clavicular dislocation right.
13. It is also seen from Ex.P9 (discharge
summary) that the claimant was admitted to Janapriya
Orthopaedic and Accident Care Centre on 17.11.2013 and
was discharged on 24.11.2013. Thus, having regard to
the nature of the injuries sustained by the claimant, the
Tribunal ought to have awarded reasonable compensation
towards pain and suffering. Further, the Tribunal ought to
have considered the notional income of the claimant at a
sum of Rs.8,000/- per month as is done by this Court in
cases referred to Lok Adalath for settlement. If the
notional income of the claimant is considered at Rs.8,000/-
per month and the disability at 11% as per the Guidelines
and Gazette Notification Regd. No.DL33004/99
(Extraordinary) Part-II, Sec.1, June 13, 2001 issued by the
Ministry of Social Justice and Empowerment, Government
of India and guidelines issued by Artificial Limbs
Manufacturing Corporation of India (ALIMCO), the
compensation awarded by the Tribunal deserves to be
recalculated as follows:
Sl. Heads under which Amount
No. compensation is awarded (in Rupees)
1 Pain and suffering 60,000/-
2 Medical expenses 1,27,072/-
3 Loss of income during the laid-up 24,000/-
period
4 Loss of income due to disability 1,58,400/-
(Rs.8000x12x11%x15)
5 Charges towards nourished food, 20,000/-
incidental expenses,
transportation, attendant charges
6 Loss of amenities 30,000/-
Total 4,19,472/-
14. In view of the above, the appeal is allowed in
part and in modification of the impugned Judgment and
Award passed by the Tribunal, the compensation awarded
to the claimant is enhanced from Rs.2,74,072/- to a sum
of Rs.4,19,472/-, which is payable by the insurer along
with interest at the rate of 6% per annum from the date of
the claim petition till the date of realization.
The insurer is directed to deposit the compensation
with interest as stated above within one month from the
date of receipt of certified copy of this Judgment. On such
deposit, 50% of the amount shall be kept in a fixed deposit
in the name of the claimant in any nationalized bank for a
period of two years.
Sd/-
JUDGE
sma
