Karnataka High Court

Mallikarjuna @ Mallesh vs H J Prakash on 28 May, 2021

Author: H.P.Sandesh

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 28TH DAY OF MAY, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.NO.5288/2020 (MV)
BETWEEN:

MALLIKARJUNA @ MALLESH
S/O HALAPPA
AGED ABOUT 46 YEARS
R/O. MATHIGATTA VILLAGE
HOLALKERE TALUK
NOW R/O JOGIMATTI ROAD
CHITRADURGA CITY-577 501
                                          ... APPELLANT
             (BY SRI B.M.SIDDAPPA, ADVOCATE)
AND:

1.     H.J. PRAKASH S/O JAYAPPA
       AGED ABOUT 33 YEARS
       OWNER OF THE MOTOR CYCLE
       BEARING REG.NO.KA-17-EA-8921
       R/O. NEAR KARUMARIYAMMA TEMPLE
       TUDARANAL VILLAGE
       T. NULENUR POST
       HOLALKERE TALUK
       CHITRADURGA DISTRICT-577526

2.     THE BRANCH MANAGER
       RELIANCE GENERAL INSURANCE CO. LTD.,
       NO.1 AND 2, FIRST FLOOR
       MAGANUR COMMERCIAL COMPLEX
       B.D.ROAD CHITRADURGA CITY-577501
                                           RESPONDENTS
          (BY SRI D.VIJAYAKUMAR, ADVOCATE FOR R2;
        VIDE ORDER DATED 15.03.2021, NOTICE TO R1 IS
                       DISPENSED WITH)
                                    2



     THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 09.01.2020
PASSED IN MVC.NO.163/2019 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, MACT-IV,
CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION       AND     SEEKING    ENHANCEMENT      OF
COMPENSATION.

     THIS M.F.A. COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                         JUDGMENT

Though this appeal is listed for admission today, with the

consent of learned counsel appearing for both the parties, the

same is taken up for final disposal.

2. Heard learned counsel appearing for the

appellant/claimant and learned counsel appearing for the second

respondent-Insurance Company.

3. This appeal is filed by the appellant/claimant

challenging the Judgment and Award dated 09.01.2020 passed

in M.V.C.No.163/2019 on the file of I Additional Senior Civil

Judge and Additional MACT No.IV, at Chitradurga ('the Tribunal'

for short), questioning the quantum of compensation awarded by

the Tribunal.

4. The factual matrix of the case is that the

appellant/claimant was proceeding in a motorcycle bearing

registration No.KA-16/ED-9575 in a moderate speed on the date

of the accident i.e., on 17.07.2018 at about 5:00 p.m, near

Venkatesha's Poultry Farm, Holalkere Taluk, at that time, the

rider of the motorcycle bearing registration No.KA-17/EA-8921,

came from the opposite direction in a rash and negligent manner

and dashed against the said motorcycle. As a result, the

claimant had sustained grievous injuries and he was taken to the

District Hospital, Chitradurga and thereafter he was referred to

Kanachur Hospital and Research Center, Mangaluru and in the

said hospital, he was an inpatient from 18.07.2018 to

27.08.2018 and he had spent Rs.3,00,000/- towards his medical

expenses and lost his agricultural income and business of

Rs.50,000/- per month.

5. The claimant in order to substantiate his case, he

examined himself as P.W.1 and examined the Doctor as P.W.2

and relied upon the documents, particularly, Exs.P1 to P11. The

respondent examined one witness as RW.1 and got marked the

document - Ex.R1 - Policy copy.

6. The Tribunal, after considering both oral and

documentary evidence available on record, allowed the claim

petition of the petitioner in part granting compensation of

Rs.4,64,385/- with 7% interest per annum from the date of

petition till its deposit. Being aggrieved by the Judgment and

Award of the Tribunal, the present appeal is filed by the claimant

contending that the Tribunal has committed an error in taking

the disability at 20% though the Doctor has assessed the

disability to the extent of 55% to the right leg and foot

component. It is also contended that the Tribunal has grossly

erred in considering the monthly income of the appellant as

Rs.9,000/- though he was an agriculturist and doing milk

vending business and earning an amount of Rs.50,000/- per

month. It is also contended that the Tribunal has committed an

error in awarding the just and reasonable compensation on all

other heads. Hence, it requires an interference of this Court.

7. Per contra, learned counsel appearing for the second

respondent-Insurance Company would vehemently contend that

the Tribunal has taken the income of Rs.9,000/- per month in

the absence of any documentary proof and considered the 'loss

of future income' and awarded the just and reasonable

compensation on all the other heads and an enhancement is

required only in case of assessing the 'future disability' taking

note of the notional income and or otherwise it does not require

any interference of this Court.

8. Having heard the arguments of learned counsel

appearing for the appellant and learned counsel appearing for

the second respondent-Insurance Company and on perusal of

the grounds urged in the appeal and the materials available on

record, the points that would arise for consideration of this Court

are:

(i) Whether the Tribunal has committed an error in not awarding the just and reasonable compensation and it requires an interference of this Court?

(ii) What order?

Point Nos.(i) & (ii):

9. Having heard the respective counsel and on perusal

of the material available on record, the claimant, who has been

examined himself as P.W.1, the Tribunal while discussing the

assessment of compensation in paragraph No.16, taken note of

the nature of injuries and also the evidence of the Doctor, who

has been examined as P.W.2 and considered Exs.P13 and 14

with regard to abnormal swelling of right foot is apparent, it is

almost impossible to do agriculture work by keeping such type of

swollen leg.

10. The Tribunal has taken 20% disability to the whole

body and calculated the 'loss of income due to disability' by

taking the income as Rs.9,000/- per month. It is not in dispute

that the accident was taken place in the year 2018 and the

claimant was aged about 48 years, the notional income would be

Rs.12,500/- in the absence of any documentary proof. However,

the petitioner has produced the RTC extract, which is marked as

Ex.P17, which discloses that he was having an agricultural land

to the extent of 4 acres and 7 guntas of land, when such being

the case, this Court ought to have add an additional income

apart from the notional income. Hence, taking into consideration

of the RTC extract, this Court adding a sum of Rs.500/- to the

notional income of Rs.12,500/-, the income of the injured comes

to Rs.13,000/- per month. The relevant multiplier is '13' and the

disability is 20%. Hence, the 'loss of income due to disability'

comes to Rs.4,05,600/- (13000x12x13x20/100).

11. The Tribunal has awarded an amount of Rs.95,585/-

towards 'medical expenditure' and the same was considered

based on the medical bills, which have been placed before the

Tribunal. Hence, it does not require any interference of this

Court.

12. However, the Tribunal has committed an error in

awarding an amount of Rs.10,000/- on the head of 'Pain and

Sufferings'. The fact that the claimant was suffered fracture of

right distal tibia and fibula is not in dispute. Hence, it is

appropriate to award an amount of Rs.50,000/- as against

Rs.10,000/- awarded by the Tribunal.

13. The injured was aged about 48 years at the time of

accident and he has to lead rest of his life with the disability of

20%. The Tribunal failed to award the just and reasonable

compensation on head of 'loss of amenities' and awarded only an

amount of Rs.10,000/- and the same has to be enhanced to

Rs.40,000/-. Hence, Rs.40,000/- has been awarded towards

'loss of amenities'.

14. The Tribunal awarded compensation of Rs.10,000/-

each under the heads of 'Food and Nourishment', 'Attendant

charges' and 'Conveyance', which are just and reasonable.

Hence, the compensation awarded under these heads does not

require any interference of this Court.

15. The Tribunal has committed an error in taking the

monthly income of Rs.9,000/- and also committed an error in

taking the 'loss of income' only for a period of two months. When

he had suffered the fracture of tibia and fibula, he requires four

months rest for re-union of the fractures. Hence, it is appropriate

to award an amount of Rs.52,000/- (13000 x4) towards 'loss of

income during the laid-up period'.

16. The Tribunal awarded an amount of Rs.20,000/- on

the head of 'future medical treatment for removal of implants',

the same is just and reasonable and does not require any

interference of this Court.

17. In the circumstances, the appellant/claimant is

entitled for an enhanced compensation of Rs.7,13,185/- as

against Rs.4,64,385/- awarded by the Tribunal with interest at

the rate of 7% per annum from the date of petition till its

deposit.

18. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed in part.

(ii) The Judgment and Award dated 09.01.2020 passed in M.V.C.No.163/2019 on the file of I Additional Senior Civil Judge and Additional MACT No.IV, at Chitradurga is modified granting compensation of Rs.7,13,185/- as against Rs.4,64,385/- awarded by the Tribunal with interest at the rate of 7% per annum from the date of petition till its deposit.