Shivakumar Swamy vs The Manager
2021 Latest Caselaw 2901 Kant

                                1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 22ND DAY OF JULY 2021

                          PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                            AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

               M.F.A. NO.5603 OF 2019 (MV-I)
                            C/W
               M.F.A. NO.1540 OF 2019 (MV-I)


M.F.A. NO.5603 OF 2019
BETWEEN:

SHIVAKUMAR SWAMY
S/O PUTTAPPA
AGED ABOUT 60 YEARS
RESIDING AT NO.5
ISEC 2ND CROSS, NAGARABHAVI
NEAR N.G.E.F. LAYOUT BRIDGE
BENGALURU NORTH-560 072.
                                                  ... APPELLANT
(BY SRI. K.B.K. SWAMY, ADV.,)

AND:

1.     THE MANAGER
       FUTURE GENERAL INDIA INSURANCE CO. LTD.,
       3RD AND 4TH FLOOR
       NO.31, SHRAVANEE KRISHNA MANSION
       100 FEET ROAD, 2ND BLOCK
       JAYANAGAR, BENGALURU-560 011.

2.     VISHWANATHAIAH
       S/O ADAVEESHIAH
                               2



       NO.2, 1ST MAIN, 3RD STAGE
       2ND BLOCK, OPP TO GANGAMMA
       THIMMAIAH CONVENTION CENTER
       BASAVESWARANAGAR
       BENGALURU-560 079.
                                            ... RESPONDENTS
(BY SRI. B.C. SHIVANNE GOWDA, ADV., FOR R1
V/O DTD:12.01.2021 NOTICE TO R2 IS D/W)
                           ---

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.11.2018 PASSED IN MVC NO. 5850/2016 ON THE FILE OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU [SCCH-16], PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

M.F.A. NO.1540 OF 2019 BETWEEN:

SRI. VISWANATHAIAH S/O SRI ADAVEESHAIAH AGED ABOUT 60 YEARS R/AT NO.2, 1ST MAIN ROAD 3RD STAGE, 2ND BLOCK OPP. GAGAMMA THIMMAIAH CONVENTION CENTRE BASAVESHWARA NAGAR BANGALORE-79.

... APPELLANT (BY SRI. RAVISHANKAR C.R. ADV.,)

AND:

1. SRI. SHIVAKUMAR SWAMY S/O SRI. PUTTAPPA AGED ABOUT 60 YEARS R/AT NO.5, KAILASH NILAYA ISEC, 2ND CROSS, NAGARBHAVI NEAR NGEF LAYOUT BRIDGE BANGALORE-72.

2. FUTURE GENERAL INDIA INSURANCE CO., LTD., OFFICE CODE NO.13

3RD AND 4TH FLOOR, NO.31 SHRAVANEE KRISHNA MANSION 100 FEET ROAD, 2ND BLOCK JAYANAGAR, BANGALORE-560011 REP. BY ITS MANAGER.

... RESPONDENTS (BY SRI. K.B.K. SWAMY, ADV., FOR R1 SRI. B.C. SHIVANNE GOWDA, ADV., FOR 2)

---

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.11.2018 PASSED IN MVC NO.5850/2016 ON THE FILE OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU [SCCH-16], AWARDING COMPENSATION OF RS.3,71,200/- WITH INTEREST @ 9% P.A. [EXCLUDING RS.20,000/-] FROM THE DATE OF PETITION TILL REALIZATION.

THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

M.F.A. No.5603/2019 has been filed by the claimant

seeking enhancement of the amount of compensation,

whereas, M.F.A.No.1540/2019 has been filed by the owner of

the offending vehicle under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act', for

short) against the judgment dated 29.11.2018 passed by the

Motor Accident Claims Tribunal (hereinafter referred to as

'the Tribunal' for short) in M.V.C.No.5850/2016. Since, both

the appeals arise out of the same accident and from the

same judgment, they were heard together and are being

decided by this common judgment.

2. Facts leading to filing of this appeal briefly stated are

that on 02.02.2012, the claimant - Shivakumar Swamy was

proceeding by walk in front of Basaveshwara Hostel. At that

time, a car bearing registration No.KA-02-ML-5412 which

was being driven by its driver in rash and negligent manner,

dashed against the claimant who was walking on the

footpath. As a result of the aforesaid accident, the claimant

sustained grievous injuries and was immediately given first

aid at Gayathri Hospital and thereafter was shifted to Mallige

Hospital, Bangalore for further treatment where the claimant

was an inpatient.

3. The claimant thereupon filed a petition under

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

claimant was admitted to Gayathri Hospital, where he took

treatment as inpatient for a period of 4 days. It is also

pleaded that the claimant has spent huge amounts towards

medical expenses. It was also claimed that the claimant was

earning Rs.1,39,000/- per month from working as a BESCOM

employee and due to the impact of the accident, the claimant

is unable to carry on with the work as before. It was also

pleaded that the accident took place on account of the rash

and negligent driving of the driver of the offending car. The

claimant claimed compensation to the tune of Rs.25,00,000/-

along with interest.

4. The Respondent No.2 viz., the owner of the

offending car resisted the claim petition denying the mode

and manner of the accident. It was contended by him that

the car was validly insured with the Respondent No.1 and

that any liability to pay compensation is to be fastened on

the Insurance Company. The Respondent No.2 viz., the

Insurance Company appeared through its counsel and filed

separate written statement, inter alia, in which the mode and

manner of the accident was denied. It was pleaded that the

accident occurred on account of the negligence of the

claimant himself. 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. It was also stated that the compensation

claimed by the claimant is highly excessive, speculative and

exorbitant.

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, Dr.Shanthakumar HP (PW2) and

got exhibited documents namely Ex.P1 to Ex.P15. The

respondent insurance company examined Vishwanath (RW1),

Nagaraju K (RW2), Dr.Kiran (RW3) and got exhibited

documents namely Ex.R1 to Ex.R9. The Claims Tribunal, by

the impugned judgment, inter alia, held that the accident

took place on account of rash and negligent driving of the car

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.3,71,200/- along with

interest at the rate of 9% p.a. Being aggrieved, these

appeals have been filed.

6. Learned counsel for the claimant submitted that the

compensation awarded by the Tribunal under the heads 'pain

and Suffering', 'Nourishment, Conveyance and Attendant

Charges', Loss of income during laid up period', 'Loss of

amenities' are on the lower side considering the injuries

sustained by the claimant and the treatment taken by the

claimant as well as the disability sustained by the claimant.

On the other hand, learned counsel for the Insurance

Company submitted that the Tribunal has after meticulous

appreciation of the evidence on record has assessed the

amount of compensation which is just and reasonable

considering the injuries sustained by the claimant and the

same does not call for any interference. Learned counsel for

the appellant in MFA No.1540/2019 has raised a singular

contention that the medical expenses with regard to the

treatment of injuries sustained by the claimant in the

accident to the extent of Rs.1,15,000/- was borne by the

owner of the offending vehicle and the Tribunal has

erroneously ordered the said sum to be paid to the claimant.

In this regard our attention has been invited to the evidence

of RW1, RW3 and Ex.P3 Medical Bills.

7. We have considered the submissions made by

learned counsel for the parties and have perused the record.

It is not in dispute that the claimant has sustained injuries in

the accident which occurred on account of negligence of the

driver of the offending car. The only issue which arises for

our consideration in this appeal is with regard to the

quantum of compensation. Admittedly, the claimant has

continued in his employment as the Controller of Accounts at

BESCOM, Bangalore and has not sustained any loss of future

income. Therefore, the Tribunal has rightly not awarded any

compensation under the head 'Loss of Future Earning

Capacity'. Ex.P10 Wound Certificate discloses that the

claimant has sustained the following injuries:

a. Trimalleolar fracture of right ankle.

b. Swelling of right foot.

Out of the aforesaid injuries injury (a) is grievous in nature.

The claimant has remained an inpatient for a period of 8 days

at Gayathiri and Mallige Hospital, Bangalore. PW2

Dr.Shanthakumar HP has stated in his evidence that the

movement of the right ankle is restricted and that the

claimant has sustained disability to the extent of 10% to

12% to the right lower limb. Therefore, taking into

consideration the injuries and the disability sustained by the

claimant, period of treatment, and the evidence of PW2

Dr.Shanthakumar HP, the claimant is held entitled to

Rs.50,000/- towards 'Pain and Suffering', to Rs.25,000/-

towards 'Nourishment, Conveyance and Attendant Charges'

and to Rs.45,000 towards 'Loss of amenities'.

8. In addition, the claimant is also held to be entitled to

Rs.35,000/- under the head 'Future Medical Expense' in view

of the evidence of the doctor that the claimant would require

a surgery in the future for removal of implants. The amount

of compensation awarded by the Tribunal under the other

heads are maintained as the same are just and reasonable.

Thus, in all, the claimant is held entitled to a total

compensation of Rs.4,17,188/-. Needless to state that the

enhanced amount of compensation shall carry interest at the

rate of 6% per annum from the date of filing of the petition

till the payment is made.

9. As far as the contention of the learned counsel for

the appellant in MFA 1540/2019 that the medical expenses

with regard to the treatment of injuries sustained by the

claimant in the accident to the extent of Rs.1,15,000/- was

borne by the owner of the offending vehicle and the Tribunal

has erroneously ordered the said sum to be paid to the

claimant is concerned, the same deserves to be rejected.

Ex.R3 and Ex.R4 are medical bills for the treatment of the

injuries sustained by the claimant in the accident to the

extent of Rs.1,15,000/-, the payment towards which was

alleged to have been borne by the owner of the offending

vehicle. To prove the aforesaid contention, RW3 Dr.Kiran has

been examined by the owner of the offending vehicle. The

aforesaid witness in his cross examination has admitted that

he is not the author of the contents of the said documents.

Further, Ex.R8 Medical Bill to the extent of Rs.25,000/- which

has been duly proved by RW2 Nagaraj K also does not

disclose that the amount was paid by the owner of the

offending vehicle. Therefore, in the absence of any evidence

of payment of the medical expenses by the owner of the

offending vehicle, no relief with regard to payment alleged to

have been made by the owner can be granted.

To the aforesaid extent, the judgment of the Tribunal in

M.V.C.No.5850/2016 is modified. The amount in deposit in

MFA No.5850/2016 shall be refunded to the appellant.

In the result, MFA No.5603/2019 is partly allowed

whereas, MFA No.1540/2019 is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE ss