Sri. Gopalappa @ Gopal vs Sri. Kandaluru Shankar Reddy
2021 Latest Caselaw 2534 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 1ST DAY OF JULY 2021

                        PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

              M.F.A. NO.6305 OF 2019 (MV-I)
BETWEEN:

SRI GOPALAPPA @ GOPAL
S/O LATE RAMASWAMY,
NOW AGED ABOUT 37 YEARS,
RESIDING AT GAJALAPERE,
BAGALUR VILLAGE, HOSUR TALUK,
KRISHNAGIRI DISTRICT,
TAMIL NADU.
                                              ...APPELLANT
(BY SRI GOPAL KRISHNA N., ADVOCATE)


AND:


1.     SRI KANDALURU SHANKAR REDDY
       S/O K. ADI NARAYANA REDDY,
       MAJOR IN AGE,
       RESIDING AT NO.16-815,
       NEAR RAILWAY STATION,
       NANDALAPADU, THADAPATHRI,
       ANANTHAPUR DISTRICT,
       ANDHRA PRADESH-515 411.

2.     THE ROYAL SUNDARAM
       ALLIANCE INSURANCE COMPANY LTD.,
       NO.30, JNR CITY CENTRE,
       SAMPANGIRAMANAGAR,
                                 2



     RAJARAMMOHANROY ROAD,
     BENGALURU-560 027
     REP: BY ITS MANAGER.
                                               ...RESPONDENTS

(BY SRI H.S. LINGARAJU, ADVOCATE FOR R-2;
    NOTICE TO R-1 IS DISPENSED WITH V/O DATED 16.02.2021)
                            ---

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 30.01.2019,
PASSED IN MVC NO.1454/2017, ON THE FILE OF THE XXII
ADDITIONAL SMALL CAUSES JUDGE AND XX ACMM., AND
MEMBER, MACT, BENGALURU (SCCH-24), PARTLY ALLOWING THE
CLAIM    PETITION    FOR    COMPENSATION   AND    SEEKING
ENHANCEMENT OF COMPENSATION.

    THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY,
HEMANT CHANDANGOUDAR J., DELIVERED THE FOLLOWING:


                          JUDGMENT

This appeal under Section 173(1) of the Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act' for short) is

filed by the claimant seeking enhancement of the amount of

compensation, against the judgment dated 30.01.2019

passed by the XXII Additional Small Causes Judge and II

Additional Chief Metropolitan Magistrate and Motor Accident

Claims Tribunal, Bengaluru in MVC No.1454/2017.

2. Facts leading to filing of this appeal briefly stated

are that on 01.03.2017 at about 10.45 p.m., when the

claimant was proceeding on his TVS Moped along with his

wife, near Sampangere Village, Malur Taluk, on Malur-Hosur

road, at that time, a lorry came from the same direction with

high speed in a rash and negligent manner and dashed

against the rear side of the TVS Moped. Due to the impact,

the claimant fell down and sustained grievous injuries.

Thereafter, claimant was immediately taken to the

Government Hospital at Malur for treatment and then shifted

to Gaurav hospital, Kolar and thereafter he was referred to

the Hosmat hospital, Bengaluru wherein he took treatment

from 1.3.2017 to 8.3.2017 and incurred huge amount

towards medical expenses.

3. The claimant thereupon filed a petition under

Section 166 of the Act inter alia on the ground that due to

the injuries sustained by him he is not in a position to do his

day to day work and has suffered physical and mental agony.

It is pleaded that the claimant was aged about 35 years as

on the date of the accident. It was further pleaded that he

was working as a Mason and was earning a sum of

Rs.15,000/- per month. He further stated that the accident

occurred due to the rash and negligent driving by the driver

of the lorry and sought for compensation of Rs. 30,00,000/-.

4. The respondent No.1 though served with notice

remained absent. The Insurer filed written statement

denying the petition averments and further the age,

occupation, income and injuries sustained by the claimant

was denied. It was also pleaded that liability of the insurance

company to pay the compensation, if any, is subject to the

terms and conditions of the policy. The insurance-company

admitted the issuance of the insurance policy and its validity

in respect of the lorry in question. It was also stated that the

compensation claimed by the claimant is highly excessive,

speculative and exorbitant. Hence, sought for dismissal of

the claim petition.

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

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant, in order to prove his case,

examined himself as PW-1 and examined two witnesses as

P.W.2 and P.W.3 and got exhibited documents namely Ex.P1

to Ex.P15. The respondents neither examined any witness

nor got exhibited any document.

6. The Claims Tribunal, by the impugned judgment,

inter alia, held that the accident took place on account of

rash and negligent driving of the lorry by its driver, as a

result of which, the claimant sustained injuries. The Tribunal

further held that the claimant is entitled to a compensation of

Rs.10,76,200/- along with interest at the rate of 8% p.a.

Being aggrieved, this appeal is filed by the claimant seeking

enhancement of the amount of compensation.

7. Learned counsel for the claimant submitted that

the Tribunal has grossly erred in assessing the income of the

claimant as Rs.8,000/- per month and in any case, the same

ought to have been taken as per the guidelines framed by

the Karnataka State Legal Services Authority. It is further

submitted that the claimant has sustained 70% permanent

disability to right lower limb and 50% permanent physical

disability to left lower limb and 85% disability to the whole

body and as such he is entitled for 40% of assessed income

towards future prospects in view of the decision of the Apex

Court in the case of PAPPU DEO YADAV V. NARESH

KUMAR AIR 2020 SC 4424. It is further submitted that

the compensation awarded under the other incidental heads

are also on lower side. Hence, he seeks enhancement of

compensation.

8. On the other hand, learned counsel for the

insurance company submitted that no evidence has been

adduced by the claimant to prove the income and age of the

claimant before the Tribunal and that the Tribunal has rightly

taken the income of the claimant at Rs.8,000/- per month. It

is further submitted that the disability assessed by the

Tribunal and the amount of compensation awarded by the

Tribunal under all the heads is just and proper and does not

call for any interference.

9. We have considered the submissions made by

learned counsel for the parties and have perused the record.

The only question which arises for our consideration in this

appeal is with regard to the quantum of compensation.

10. Admittedly, the claimant has not produced any

evidence with regard to proof of his income. Since the

accident is of the year 2017, notional income of the claimant

is to be assessed as per the guidelines issued by the

Karnataka Legal Services Authority, which comes to

Rs.11,000/- per month. PW.2-Doctor in his evidence

has stated that the claimant has suffered 70% permanent

impairment to right lower limb and 50% permanent

impairment to the left lower limb and has assessed functional

disability at 85% to the whole body and opined that the

injuries sustained by the claimant are grievous in nature.

The wound certificate at Ex.P.6 indicates that the claimant

had suffered the following injuries:

(1) Bilateral foot with crush injury with cross

contamination

(2) Left foot wound debridement + right below knee

amputation + mid foot amputation + SSG left foot

11. The Tribunal after considering the medical

evidence has assessed the functional disability of the

claimant at 40%. However, the medical records at Ex.P6,

Ex.10-photographs clearly establishes that the claimant will

not in a position to work as a Mason in future, since his right

leg below knee is amputated and also in the absence of left

Tarsal bones and Meta tarsal bones. Hence, the functional

disability of the claimant is assessed at 85% as opined by the

P.W.2 doctor.

12. In view of the decision of the Apex Court in the

case of PAPPU DEO YADAV V. NARESH KUMAR AIR

2020 SC 442, the claimant is entitled for addition of 40% of

the assessed income towards future prospects. Hence, the

claimant is entitled for compensation of

Rs.25,13,280/-(Rs.11,000+4,400=15,400 x 12 x 85% x 16)

under the head 'loss of earning capacity'.

13. The Tribunal has awarded Rs.1,00,000/- towards

pain and sufferings and has failed to award any

compensation towards loss of amenities. By considering the

nature of injuries sustained by the claimant it would be

appropriate to award a sum of Rs.1,00,000/- towards loss of

amenities and future happiness. The compensation awarded

on the other conventional heads is just and proper and is

maintained.

14. Thus, the claimant is entitled to the modified

compensation as under:

Amount awarded Amount awarded by this Court Heads of compensation by the Tribunal

Loss of future income 6,14,400-00 25,13,280 -00

Pain and Sufferings 1,00,000-00 1,00,000-00

Loss of amenities and - 1,00,000-00 future happiness Loss of earnings during 32,000-00 32,000-00 the laid up period Attendant, conveyance 40,000-00 40,000-00 & nutrition food charges Medical expenses, 2,09,773-00 2,09,773-00 Prosthesis and future 80,000-00 80,000-00 maintenance.

       Total                      10,76,173-00      30,75,053-00
                                   Rounded off
                                  10,76,200-00

15. The claimant is entitled to a total compensation

of Rs. 30,75,053/- as against Rs. 10,76,200/- The

enhanced compensation of Rs.19,98,853/- shall carry

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

petition till realization. To the aforesaid extent, the

judgment of the claims Tribunal is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

HR