Prakash vs S B Marulasiddappa
2021 Latest Caselaw 2001 Kant

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 27TH DAY OF MAY 2021

                        PRESENT

          THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

     THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

             M.F.A. NO.5098 OF 2018 (MV-I)


BETWEEN:

PRAKASH
S/O GAVIRANGAPPA,
AGED ABOUT 38 YEARS,
AGRICULTURIST & BUSINESSMEN,
R/O BURUDEKATTE VILLAGE,
HOSADURGA TALUK -577 527,
CHITRADURGA DISTRICT.
                                          ...APPELLANT

(BY SRI R. SHASHIDHARA, ADVOCATE)

AND:

1.     S.B. MARULASIDDAPPA
       S/O BANAPPA
       AGED 63 YEARS,
       R/O SANEHALLI VILLAGE,
       KASBA HOBLI,
       HOSADURGA TALUK-577 527, R.C. OWNER
       OF CAR BEARING NO.KA-16/M-5263.

2.     THE DIVISIONAL MANAGER
       ROYAL SUNDARAM ALLIANCE
       INSURANCE CO LTD., NO.132,
                                 2



      2ND FLOOR, RICHMOND ROAD, NEAR
      BRIGADE TOWERS, BANGALORE-25.
                                               ...RESPONDENTS

(BY SRI RAVI S. SAMPRATHI, ADVOCATE FOR R-2;
    V/O DATED 16.01.2021 NOTICE TO R-1 IS D/W)

                               ---

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
18.11.2017, PASSED IN MVC NO.199/2015, ON THE FILE OF
THE SENIOR CIVIL JUDGE & JMFC., AND MACT, HOLALKERE,
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 is filed against the judgment and award

dated 18.11.2017 passed in MVC No.199/2015 by the Senior

Civil Judge and JMFC and MACT at Holalkere (for short

`Tribunal')

2. The claimant while proceeding as a rider

sustained accidental injuries on 10.7.2014 due to the rash

and negligent driving by the driver of the offending car. He

filed a claim petition under Section 166 of the Motor Vehicles

Act seeking enhancement of the amount of compensation.

3. The insurer of the offending car filed written

statement contending that the rider of the motorcycle was

not holding valid and effective driving license to ride the

motorcycle and the accident occurred solely due to the

negligent on the part of the rider of the motorcycle. Hence,

sought for dismissal of the claim petition.

4. The Tribunal after considering the evidence on

record has held that the claimant sustained accidental

injuries due to the rash and negligent driving by the

offending car and has awarded a total compensation of

Rs.7,82,000/- with interest at the rate of 6% p.a. to the

claimant. The claimant is thus, in appeal before this Court

seeking for enhancement of compensation.

5. Learned counsel for the appellant/claimant

submits that the Tribunal has assessed the income of the

claimant at Rs.5,000/- p.m. instead of Rs.8,500/- p.m. He

further submitted that having regard to the avocation of the

claimant and also the nature of injuries sustained, the

Tribunal ought to have assessed the functional disability of

the claimant at 100% instead of 33% assessed by the

Tribunal. He also submitted that the compensation awarded

under other conventional heads is on the lower side and the

same may be enhanced.

6. Learned counsel for the insurer submitted that

the Tribunal after appreciating the medical evidence on

record has rightly assessed the functional disability of the

claimant at 33%. He also submits that the compensation

awarded by the Tribunal in favour of the claimant is just and

proper and the same does not call for interference.

7. We have considered the submissions of the

learned counsel for the parties and perused the material on

record. It is not in dispute that the accident has occurred on

account of rash and negligent driving of the offending car by

its driver. Therefore, the only issue which arises for our

consideration in this appeal is with regard to the quantum of

compensation.

8. Before the Tribunal, the claimant in his evidence

has stated on oath that he was an agricultural and

businessman by avocation and he was earning monthly

income of Rs.30,000/-. However, no evidence is produced to

substantiate the said claim. In the absence of proof of

income , the Tribunal has assessed the income of the

claimant at Rs.5,000/- p.m. instead of Rs.8,500/- p.m. which

is normally assessed by this Court and Lok Adalath while

deciding the accidental claims in the year 2014. Hence, the

notional income of the claimant is assessed at Rs.8,500/-

p.m. as on the date of accident.

9. The claimant got examined PW2, Dr.Ashwath

Acharya and produced evidence Ex.P4 - wound certificate

and Ex.P13 - disability certificate to substantiate his claim

with regard to the nature of injuries and the disability

sustained by him. Perusal of evidence of PW2 - doctor and

the disability certificate at Ex.P13 would indicate that the

claimant has sustained the following injuries:

1) Non-union of right femur with implant in situ.

2) There is shortening of 1.5 cm in the right lower limb.

3) There is 20% loss of power in the right lower limb thigh muscles.

10. PW2 - doctor has opined that the claimant is

unable to use right upper limb for any of the activities of

daily living and he has got permanent disability at 18% for

his right lower limb functions. The Tribunal considering the

evidence of PW2 - doctor has held that nothing is elicited

during the cross-examination of PW2, who has clinically

examined the claimant and issued the disability certificate at

Ex.P13 and Ex.P20. However, the Tribunal has assessed the

functional disability of the claimant at 33% to the whole

body. PW2 - doctor has clearly opined that the claimant

cannot use his right lower limb for any of the activities of

daily living and he has sustained permanent disability to the

extent of 81% to his right upper limb function. Hence,

considering the medical evidence and also the avocation of

the claimant, it would be appropriate to assess the functional

disability of the claimant at 50% as against 33% assessed by

the Tribunal.

11. The claimant was aged 42 years as on the date

of accident and appropriate multiplier would be `14' for

determining the compensation payable under the head `loss

of future income'. By assessing the monthly income of the

claimant at Rs.8,500/- p.m., the disability at 50% and

applying the multiplier `14' , the claimant is entitled for

compensation of Rs.7,14,000/- (8,500 x 12 x 14 x 50%)

under the head loss of future income.

12. The Tribunal has awarded compensation of

Rs.90,000/- under the head `pain and suffering' and

Rs.80,000/- under the head `loss of amenities'. Having

regard to the nature of injuries sustained by the claimant, it

would be appropriate to enhance the compensation by

awarding Rs.10,000/- under the head `pain and suffering'

and Rs.20,000/- under the head `loss of amenities' in

addition to the amount already granted by the Tribunal.

13. The compensation awarded under other heads is

just and proper and remains unaltered.

14. Thus the claimant is held entitled to enhanced

compensation of Rs.4,67,000/- with interest at 6% p.a. in

addition to Rs.7,82,000/- awarded by the Tribunal.

Accordingly, the appeal is allowed in part.

The judgment and award passed by the Tribunal is

modified. The claimant is entitled to enhanced

compensation of Rs.4,67,000/- which carries interest at 6%

p.a. from the date of petition till realisation in addition to

Rs.7,82,000/- awarded by the Tribunal.

The enhanced compensation to be deposited by the

Insurer within eights weeks from the date of receipt of

certified copy of this order.

Sd/-

JUDGE

Sd/-

JUDGE

BKM