Manju H D vs Kempachari
2021 Latest Caselaw 496 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 8TH DAY OF JANUARY, 2021

                         PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                           AND

            THE HON'BLE MR. JUSTICE M.I.ARUN

                   M.F.A.No.364/2019
              C/w. M.F.A.No.7411/2018 (MV)

IN MFA No.364/2019:
BETWEEN :
MANJU H.D.
S/O DEVAPPA
AGED 32 YEARS
R/AT HANCHYA VILLAGE
KASABA HOBLI
MYSURU DISTRICT.                             ...APPELLANT

             (BY SRI SYED ABDUL SABOOR, ADV.)

AND :
1.      KEMPACHARI
        S/O CHAMACHARI
        AGED ABOUT 42 YEARS
        R/AT C-31, SENAPATHI HALLI
        T.NARASIPUR TQ, MYSURU DISTRICT
        [OWNER OF M/c KA-55J-7393]

2.      THE MANAGER
        ORIENTAL INSURANCE CO. LTD.,
        MUSLIM HOSTEL BUILDING
        FIRST MAIN, OPP. FIRE BRIGADE
        SARASWATHIPURAM, MYSURU-570009
        [INSURER OF M/c KA-55-J-7393]. ...RESPONDENTS

           (BY SRI S.SRISHAILA, ADV. FOR R-2;
 V/O DATED 05.01.2021 NOTICE TO R-1 IS DISPENSED WITH.)
                           -2-

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
23.05.2018 PASSED IN MVC No.232/2017 ON THE FILE OF THE
PRINCIPAL JUDGE, COURT OF SMALL CAUSES AND MACT,
MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND    SEEKING    ENHANCEMENT      OF
COMPENSATION.

IN MFA No.7411/2018:
BETWEEN:
THE ORIENTAL INSURANCE
COMPANY LTD., MUSLIM HOSTEL BLDG
FIRST MAIN, OPP. FIRE BRIGADE
SARASWATHIPURAM, MYSURU-570009
REP. BY AUTHORISED SIGNATORY AT
REGIONAL OFFICE, KRISHI BHAVAN
5TH FLOOR, HUDSON CIRCLE
NRUPATUNGA ROAD
BANGALORE-560001.                                ...APPELLANT

                  (BY SRI S.SRISHAILA, ADV.]

AND :
1.      MANJU H.D.
        S/O DEVAPPA
        AGED ABOUT 31 YEARS
        R/AT HANCHYA VILLAGE
        KASABA HOBLI, MYSURU DISTRICT.

2.      KEMPACHARI
        S/O CHAMACHARI
        AGED ABOUT 41 YEARS
        R/AT # C-31, SENAPATHI HALLI
        T.NARASIPUR TALUK
        MYSURU DISTRICT.                       ...RESPONDENTS

          (BY SRI SYED ABDUL SABOOR, ADV. FOR R-1.)

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
23.05.2018 PASSED IN MVC No.232/2017 ON THE FILE OF THE
PRINCIPAL JUDGE, COURT OF SMALL CAUSES AS A PRESIDING
OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL, MYSURU,
                           -3-

AWARDING COMPENSATION OF Rs.8,30,200/- WITH INTEREST
AT 9% P.A., FROM THE DATE OF PETITION TILL ITS
REALIZATION.

      THESE APPEALS COMING ON FOR ORDERS, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:

                     JUDGMENT

The claimants as well as the insurer are before

this Court challenging the judgment and award dated

23.05.2018 passed in MVC No.232/2017 on the file of

the Principal Judge, Small Causes and Senior Civil

Judge and Motor Accidents Claims Tribunal at Mysuru

['Tribunal' for short].

2. The claimant filed petition under Section 166

of the Motor Vehicles Act, 1988 claiming compensation

for the injuries sustained by him in the road traffic

accident.

3. It was averred in the petition that on

06.02.2017 at about 08.00 p.m., near Manasinagara

junction on ring road, Mysore, when the petitioner was

proceeding on motorcycle bearing registration No.KA-55-

V-3495 duly observing the traffic rules, met with the road

traffic accident due to the actionable negligence of the

rider of another motorcycle bearing No.KA-55-J-7393

[offending vehicle]. Immediately he was shifted to

Shubhodaya Hospital, Mysuru wherein he took treatment

as an inpatient for about 10 days and spent huge medical

expenses. It was contended that prior to the accident, the

claimant was earning Rs.15,000/- by doing agriculture

work, but due to the impact of the accidental injuries, he

has been deprived of the same. On these set of grounds,

the claimant sought for the compensation.

4. On service of notice, the respondent No.1-

owner of the motorcycle in question remained exparte.

The respondent No.2 - insurer appeared and filed

written statement denying the petition averments. The

defence set up was that the accident in question

occurred due to rash and negligent act of the claimant

himself who had no valid and effective driving licence.

Admitting the issuance of policy, it was contended that

the liability if any, is subject to terms and conditions of

the policy. It was contended that the compensation and

interest claimed by the claimant is highly excessive and

exorbitant. Hence, sought for dismissal of the petition.

5. On the basis of the pleadings, issues were

framed by the Tribunal and answered in terms of the

reasons recorded in the impugned judgment, awarding

total compensation of Rs.8,30,200/- with interest at 9%

p.a., from the date of the petition till its realization.

6. Being dissatisfied with the quantum of

compensation awarded as being inadequate, the

claimant is in appeal whereas the insurer has

challenged the same as excessive and exorbitant.

7. Learned counsel for the claimant argued that

the compensation awarded by the Tribunal is not in

conformity with the evidence placed on record. The

compensation awarded is disproportionate to the gravity

of injuries sustained by the claimant. It was submitted

that the doctor who was examined as PW2 has assessed

the disability to the whole body at 25%, determining the

monthly income of the injured notionally at Rs.12,000/,

the compensation awarded under the different heads is

meager and the same requires to be enhanced

substantially.

8. Learned counsel for the insurer argued that

the nature of the injuries sustained by the claimant in

terms of the wound certificate at Ex.P3 supported by the

evidence of the doctor - PW2 indicates that the injured

has sustained fracture of right radius and ulna, left

wrist and ulna, fracture of third and fourth metal tarsal,

fracture of mandible/maxilla. Dr.Ravi.H.S, Plastic

Surgeon, Mysuru who was examined as PW2 has

assessed the functional disability of 22.5% to the lower

third of face. Dr.Girish Kumar, Orthopedic Suirgeon,

Mysuru who was examined as PW3 has assessed the

functional disability of the injured at 29.46 + 23.4%.

The disability relating to the mouth would not certainly

have any impact on the loss of dependency. Considering

the same, disability assessed by the Tribunal at 25% for

the whole body is on the higher side. It is submitted

that the compensation awarded under the different

heads is on higher side. Further, it was submitted that

the rate of interest awarded at 9% p.a., is excessive. On

these grounds, learned counsel sought for the reduction

in the compensation amount awarded by the Tribunal.

9. We have carefully considered the rival

submissions of the learned counsel appearing for the

parties and perused the material on record.

10. The monthly income of the claimant

determined by the Tribunal at Rs.12,000/- is not in

serious dispute. The main attack of challenge is to the

disability assessed by the Tribunal at 25% and the rate

of interest at 9% p.a., awarded by the Tribunal. There is

considerable force in the submissions made by the

learned counsel for the insurer. It is obvious that the

disability caused to the mouth would not reduce the

earning capacity of the injured causing loss of future

income. If we consider the average disability assessed by

PW3, Orthopedic Surgeon, to the limb affected, 1/3rd of

the same would be 18.6% to the whole body. Thus,

considering the disability to the whole body at 18%,

with monthly income of Rs.12,000/-, applying the

multiplier of 16 since the claimant was aged about 34

years as on the date of the accident in terms of the

driving licence and Aadhaar card at Ex.P12 and 13, the

loss of dependency would work out to Rs.4,14,720/-

[12,000 x 12 x 16 x 18%].

11. Having regard to the nature of injuries

sustained by the claimant and its impact for the rest of

his life, we deem it appropriate to award a sum of

Rs.50,000/- towards the pain and sufferings. In all

other respects, the compensation awarded by the

Tribunal remains intact.

12. For the reasons aforesaid, the total

compensation awarded by the Tribunal is re-assessed

as under:

Amount [in Sl.No. Particulars Rs.] Towards injury, pain and

1. 50,000/-

sufferings Towards medical expenses and

2. 1,30,000/-

nourishment Towards loss of income during

3. 39,200/-

laid up period and rest

4. Towards loss of future income 4,14,720/-

5. Towards loss of amenities of life 30,000/-

6. Towards future medical expenses 25,000/-

Total 6,88,920/-

However, having regard to the fall in the rate of

interest in the banks and to maintain uniformity in the

order as this Court is consistently awarding interest at

the rate of 6% p.a., in identical circumstances, we deem

it appropriate to modify the rate of interest from 9% to

6% p.a.

- 10 -

Thus, the claimants shall be entitled to total

compensation of Rs.6,88,920/- with interest at the rate

of 6% per annum from the date of the claim petition till

the date of realization.

13. Hence, the following:

ORDER

i) Appeal filed by the claimant in

MFA.No.364/2019 is dismissed.

ii) Appeal filed by the insurer in MFA

No.7411/2018 is allowed.

iii) The total compensation awarded by the

Tribunal is modified and reduced to

Rs.6,88,920/- as against Rs.8,30,200/- with

interest at the rate of 6% per annum from the

date of the claim petition till its realization.

iv) The insurance company shall deposit the

amount determined as aforesaid before the

Tribunal within 90 days from the date of

- 11 -

receipt of the certified copy of the judgment

and order.

v) The portion of the order of the Tribunal

inasmuch as liability, apportionment and

disbursement remains intact.

vi) The modified compensation amount shall be

apportioned and disbursed in terms of the

order of the Tribunal.

vii) Draw modified award accordingly.

viii) The Registry shall transfer the amount in

deposit along with original records to the

jurisdictional Tribunal forthwith.

ix) All pending I.As stand disposed of accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

NC.