Arase Gowda vs Bajaj Allianz General Insurance ...
2021 Latest Caselaw 5033 Kant

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 29TH DAY OF NOVEMBER, 2021

                           BEFORE

         THE HON'BLE MR. JUSTICE E.S.INDIRESH

 MISCELANEOUS FIRST APPEAL NO.994 OF 2014 (MV)

BETWEEN:

Arase Gowda
S/o Munninarasaiah
Aged about 43 years
No.15, I Main, II Cross
Ravibhadavane
Nandini Layout
Jaimaruthinagar
Bengaluru-560 096.
                                                 ... Appellant
(By Sri Prasad P, Advocate)

AND:

       1. Bajaj Allianz General Insurance Company Ltd
          Regional Office;
          Shop No.203, II Floor
          Soundaraya Sampige Complex
          II Main, 8th Cross
          Sampige Main Road
          Malleshwaram
          Bengaluru-560 008.

       2. K Vinay Kumar
          S/o Karunanid
          No.195/2, Gangamma Nilaya
          Opp. Gayathri Temple
          Yeshwanthapur
          Bengaluru-560 022.
                                           2


       3. Sri Shashidhar
          S/o Sri N Seetharam
          Residing at No.194, 'A' Block
          Between 14th and 15th Main Road
          I Cross, Subramanyanagar
          Srirampuram Post,
          Bengaluru-560 021.
                                                                ... Respondents
(By Sri B Pradeep, Advocate for R1;
Sri Nagendra Shetty, Advocate for R3;
Notice to R2 is dispensed with)

      This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicle Act, 1988 against the judgment &
award dated 01st October, 2013 passed in MVC No.9010 of
2010 on the file of the XXII ACMM and XXIV Additional Small
Causes Judge, Motor Accident Claims Tribunal, Bengaluru,
partly allowing the claim petition for compensation and
seeking enhancement of compensation.

      This appeal coming on for final hearing, this day, the
court, delivered the following:

                               JUDGMENT

This appeal is preferred by the claimant challenging the

judgment and award dated 01st October, 2013 passed in MVC

9010 of 2010 on the file of the Motor Accident Claims

Tribunal, XXIV Additional Small Causes Judge, Bengaluru (for

short hereinafter referred to as the 'Tribunal'.)

2. For the sake of convenience, parties in this appeal

are referred to with respect to their status before the

Tribunal.

* Page No.2 retyped and replaced vide Chambers order dated 13.12.2021

3. It is the case of the claimant that on 29th September,

2010 while he was crossing the road near Kanteerava Studio

Main Road near Nandini Layout, at that time a Bajaj

motorcycle bearing registration No.KA-01/EB-8624 dashed to

the claimant and as a result of the same he sustained injuries

and immediately he was taken to Hosptial and he was an

inpatient for a period of nineteen days. The claimant suffered

three fractures and as such, he filed MVC No.9010 of 2010

before the Tribunal, seeking compensation.

4. On service of notice, respondents entered

appearance and filed detailed written statement denying the

averments made in the claim petition. The Tribunal framed

issues based on pleadings and in order to prove the claim

petition, claimant got himself examined as PW1 and examined

two more witnesses as PW2 and PW3 and produced 27

documents and same were marked as Exhibits P1 to P27. On

the on the other hand, respondents have examined two

witnesses as RW1 and RW2 and produced four documents and

same was marked as Exhibits R1 to R4. The Tribunal, after

considering the material on record, by its judgment and award

dated 01st October, 2013 allowed the claim petition in part

and awarded compensation of Rs.5,33,000/- with interest at

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

date of realisation. Being not satisfied with the compensation

awarded by the Tribunal, the claimant has preferred the

present appeal seeking enhancement of compensation.

5. I have Sri Prasad P, learned counsel appearing for

the appellant-claimant and Sri B. Pradeep, learned counsel

appearing for the Insurance Company.

6. Sri Prasad P, learned counsel for the appellant

submitted that the claimant has sustained grievous injuries

and there are three factures and he further contended that

the claimant was a labour contractor as well as he had the

business of lending cars on for travel agencies and hence the

income of Rs.10,000/- taken by the Tribunal is on the lesser

side, which requires to be rectified in this appeal.

7. Per contra Sri Pradeep, learned counsel appearing

for the respondent sought to justify the impugned judgment

and award.

8. I have given my anxious consideration to the

submissions made by the learned counsel appearing for the

parties. It is forthcoming from the record that the claimant

sustained injuries on account of accident on 29th September,

2010. In order to prove the income, claimant has produced

Exhibit P6 (six income tax returns) and taking into account

the income of the claimant as per Exhibit P16, I am of the

view that the average has to be taken at Rs.17,265/- per

month. The Tribunal had assessed the disability at 15% and

taking into account the nature of injuries sustained by the

claimant. In terms of the dictum of the Hon'ble Supreme

Court in the case of SARLA VERMA AND OTHERS v. DELHI

TRANSPORT CORPORATION AND ANOTHER reported in 2009

ACJ 1298, the appropriate multiplier would be 15.

Accordingly, the loss of future income would be Rs.4,66,155/-

(Rs.17,625/- x 12 x 15 x 15%). Claimant is entitled for

Rs.51,795/- (Rs17,625/- x 3) towards loss of income during

laid-up period. Taking into account the fractures suffered by

the claimant and considering the discomfort the claimant has

to undergo for the rest of life, Rs.50,000/- is awarded towards

loss of amenities; and Rs.50,000/- is awarded towards pain

and suffering. In all, the claimant is entitled for compensation

of Rs.6,17,950/-, with interest at 6% from the date of petition

till realisation. In the result, appeal is allowed in part.

Sd/-

JUDGE

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