Karnataka High Court

K L Thimmappa vs Shajesh Kumar 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.2381/2014 (MV)
BETWEEN:
K.L.THIMMAPPA
S/O LATE LINGAPPA
AGED ABOUT 43 YEARS
R/O KEMPAPURA
CHIKKAMALUR POST
KODIGENAHALLI HOBLI
MADHUGIRI TALUK-572132
TUMAKURU DISTRICT.
                                                 ... APPELLANT
               (BY SRI K.SHANTHARAJ, ADVOCATE)
AND:
1.     SHAJESH KUMAR
       S/O SHAJESH VIHAR
       AGED ABOUT 56 YEARS
       R/OF MAMAMANGALAM
       KOCHI DISTRICT
       ERNAKULAM
       KERALA-562011.
2.     NATIONAL INSURANCE COMPANY LTD.,
       P.B. NO.25, MUNICIPAL SHOPPING COMPLEX
       MAIN ROAD, NORTH PARAVUR-683513
       NOW REPRESENTED BY
       THE REGIONAL MANAGER
       REGIONAL OFFICE
       NATIONAL INSURANCE COMPANY LTD.,
       SHUBHARAM COMPLEX, M.G.ROAD
       BENGALURU-560001.
                                             ... RESPONDENTS
        (BY SRI VENKATESH R. BHAGAT, ADVOCATE FOR R2;
                                 2



   VIDE COURT ORDER DATED 16.10.2015, R1-NOTICE DISPENSED
                           WITH)

      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 02.02.2013 PASSED IN
MVC.NO.488/2006 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND MACT XIII AT MADHUGIRI, 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 the matter is listed for admission today, with the

consent of both the learned counsel for the parties, it is taken up

for final disposal.

This appeal is filed by the claimant challenging the

judgment and award dated 02.02.2013, passed in

M.V.C.No.488/2006 on the file of the Additional and Senior Civil

Judge and MACT-XIII at Madhugiri ('the Tribunal' for short)

questioning the quantum of compensation.

2. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

3. The factual matrix of the case is that the claimant had

met with an accident on 15.01.2005 at about 4.00 p.m. when he

was proceeding in a TVS motor cycle bearing registration No.KA-

06-V-5847 along with the pillion rider near Boodihal Gate, at U-

curve near NH-4 Bengaluru-Tumkur road, the lorry bearing

No.KL-07-AB-9122 which was proceeding in front, without prior

signal took U-turn in a rash and negligent manner on the left

side. As a result, the rare portion of the lorry dashed the TVS

Victor and caused the accident. The claimant fell down and

sustained injuries and immediately, he was shifted to the

hospital, where he took treatment as an inpatient for a period of

12 days. He had suffered bilateral lefort II fracture, nasal bone

fracture and zygomatic complex fracture on right side. The

claim petition is opposed by the respondents by filing the

detailed statement of objections. The claimant, in order to

substantiate his claim, examined himself as P.W.1 and the

doctor as P.W.2 and got marked the documents at Exs.P1 to

P16. The respondents got examined one witness as RW.1 and

got marked document at Ex.R1. The Tribunal, after considering

both oral and documentary evidence placed on record, awarded

the compensation of Rs.92,000/- with interest at the rate of 6%

per annum. Being aggrieved by the quantum of compensation,

the present appeal is filed by the claimant.

4. Learned counsel appearing for the appellant would

vehemently contend that though the claimant suffered three

fractures, the Tribunal has awarded only an amount of

Rs.35,000/- on the head of 'pain and sufferings', which requires

enhancement. Learned counsel also would submit that only an

amount of Rs.2,000/- has been awarded towards the 'attendant

charges' which is on the lower side. He would further contend

that the Tribunal has failed to award the compensation towards

the 'future loss of income' though the doctor has deposed with

regard to the disability to the extent of 30% to the limb. Hence,

it requires interference of this Court.

5. Per contra, learned counsel appearing for the

respondent-Insurance Company would vehemently contend that

the accident had taken place in the year 2005. However, the

Tribunal has awarded an exorbitant compensation under all

heads. Hence, it does not require interference of this Court.

6. Having heard the arguments of the learned counsel

for the appellant as well as the learned counsel for the

respondent-Insurance Company, the points that would arise for

the consideration of this Court are:-

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

      (ii)     What order ?


Points No.1 and 2:-

7. Having heard the respective counsel and also on

perusal of the records, the claimant in support of his contention

has produced the wound certificate at Ex.P4, medical

prescription at Ex.P6, medical bills at Ex.P7, referral card at

Ex.P8, discharge summary at Ex.P9, OPD records at Ex.P10,

emergency case record at Ex.P11, case sheet at Ex.P12 and x-

rays at Exs.P13 and 14, OPD Book at Ex.P15 and x-ray at

Ex.P16. The Tribunal having considered the material on record

while answering issue Nos.2 and 3, in para No.6 discussed with

regard to the nature of the injuries and the evidence of the

doctor, who has been examined as P.W.2. It is noticed that

there were three fractures i.e., bilateral lefort II fracture, nasal

bone fracture and zygomatic complex fracture on right side and

he was an inpatient from 16.1.2005 till 27.01.2005 and he was

advised to be on liquid diet for six weeks.

8. Having considered the nature of injuries and also the

evidence of doctor - P.W.2, he has categorically deposed with

regard to the fact of having a scar on the face of the claimant,

which is evident and also deposed that functional aspect of jaws

are normal, inter canthal distance had widened, twitching over

left infra orbital margin are evident and suggestain of periphal

branches of facial nerve to be damaged, naso-lacrimal diet

patency was positive. Though the doctor in his evidence

deposed with regard to the disfigurement due to depressed nose

and malunion of facial bones which would be to the extent of

25% to 30% on facial region, the Tribunal refused to accept the

evidence of the doctor with regard to the disability is concerned.

However, awarded the compensation of an amount of

Rs.35,000/- towards 'pain and sufferings'. Having taken note of

the nature of injuries, particularly, the three fractures suffered

by the claimant, that too on his face, i.e., bilateral lefort II

fracture, nasal bone fracture and zygomatic complex fracture on

right side, it appears that the compensation awarded by the

Tribunal to the tune of Rs.35,000/- under the head of 'pain and

sufferings' requires little modification. Accordingly, it is

enhanced to Rs.50,000/- as against Rs.35,000/-.

9. The Tribunal has awarded the reasonable

compensation on other heads i.e., an amount of Rs.30,000/-

towards 'loss of amenities', an amount of Rs.12,000/- under the

head of 'diet and transportation expenditure' and 'attendant

charges' since the claimant was an inpatient only for a period of

12 days. Hence, the same does not require any interference by

this Court.

10. The Tribunal has awarded an amount of Rs.15,000/-

under the head of 'loss of income'. It is important to note that

the accident is of the year 2005 and the claimant was an

inpatient for a period of 12 days for the injuries he had suffered.

At the time of discharge, it was opined by the doctor that there

is a disfigurement and depressed nose and malunion of facial

bones to the extent of 25% to 30% on facial region. The

Tribunal has considered the nature of injuries and the treatment

taken by the claimant but failed to consider the medical

expenses to the tune of Rs.970/-. Though the compensation is

awarded on the head of 'diet and transportation expenditure and

attendant charges' no compensation has been awarded under

the head of 'medical expenses'. Having taken note of the

medical expenses and also the loss of income awarded by the

Tribunal to the tune of Rs.15,000/- and so also considering the

fractures suffered by the claimant, for which he could not attend

his work for 5 months, an amount of Rs.20,000/- is awarded

under the head of 'loss of income' taking the income of the

claimant at Rs.4,000/- per month for a period of five months

i.e., (Rs.4,000x5=Rs.20,000/-) and an additional amount of

Rs.1,000/- is awarded under the head of 'medical expenses'.

Accordingly, the claimant is entitled to the enhanced

compensation of Rs.21,000/- in all.

11. In view of the discussion made above, I pass the following:-

ORDER

(i) The appeal is allowed in part.

(ii) The judgment and award passed by the Tribunal is modified by enhancing the compensation awarded by the Tribunal to Rs.1,13,000/- with interest at the rate of 6% per annum from the date of petition till realization.