Karnataka High Court

R Naveenkumar vs Venkatesha N on 1 April, 2022

Bench: Pradeep Singh Yerur

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 1ST DAY OF APRIL, 2022

                      BEFORE

  THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

           M.F.A. NO. 1780 OF 2020 (MV)

BETWEEN:


R. NAVEENKUMAR
S/O LATE RAVIKUMAR @ RAVI
AGED ABOUT 30 YEARS
MASON WORK,
LABOUR WORK,
R/O P.T. HOUSE,
S.R. ROAD
GANDHINAGAR,
CHALLAKERE TOWN - 577 522.           ... APPELLANT

(BY SRI R. SHASHIDHARA, ADVOCATE)


AND:


1. VENKATESHA N.
   S/O NARASAIAH
   MAJOR,
   OWNER OF MAXI TOOFAN BEARING
   NO.KA-16-B-9341,
   R/O H.NO.210, DEVAGIRI VILLAGE
   SANDURU TALUK - 583 119
   BELLARY DISTRICT.

2. SRI RAMA GENRAL INSURANCE CO. LTD.,
   REPRESENTED BY THE MANAGER
   SRI RAMA GENERAL INSURANCE CO. LTD.,
   NO.5/4, 3RD FLOOR,
   S.V. ARCADE
   BILEKAHALLI MAIN ROAD
                            2


  OFF: B.G. ROAD,
  BENGALURU - 560 076.               ... RESPONDENTS
(BY SRI B. PRADEEP, ADVOCATE FOR R2;
V/O DATED 1/4/2022, NOTICE TO R1 IS
DISPENSED WITH)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED
18.10.2019 PASSED IN MVC NO.788/2018 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND MACT, CHALLAKERE,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ORDERS, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                     JUDGMENT

Though this matter is listed for orders, with

the consent of both the learned counsel, the same

is taken up for final disposal.

2. Heard learned counsel Mr. R.

Shashidhara, appearing on behalf of the appellant

and learned counsel Mr. B. Pradeep, appearing on

behalf of respondent No.2.

3. This is an appeal preferred by the

claimant being aggrieved by the judgment and

award dated 18.10.2019 passed by the Senior Civil

Judge & MACT, Challakere, in MVC No.788/2018.

This appeal is founded on the premise of

inadequacy of compensation awarded by the

Tribunal and hence seeking for enhancement of the

compensation.

4. Brief facts of the case:

On 03.06.2018 at 6.45 p.m., when claimant

herein, who was a pillion rider was travelling with

his friend on a motor cycle bearing Registration

No.KA-16-EG-6416 and while proceeding towards

Lakshmipura, in front of R.K.Dhaba on N.H.150-A

Road, Challakere, at that time, a Maxi Toofan

vehicle bearing Registration No.KA-16-B-9341

being driven by its driver in a rash and negligent

manner, came from the opposite direction so as to

endanger human life and safety and dashed against

the vehicle in which the claimant was a pillion rider.

Due to the impact of the said accident, the rider as

well as the claimant herein sustained grievous

injuries. The claimant herein sustained fracture of

right femur, fracture of lower 1/3rd of his right tibia

and fibula and other injuries. Immediately after the

accident, he was shifted to Government Hospital,

Challakere, where he took first aid treatment and

later he was shifted to Government Hospital,

Chitradurga, where he was treated as inpatient

from 03.06.2018 to 17.06.2018, where rods, screw,

plates and nails were implanted and surgery was

conducted.

5. It is stated that claimant was a mason

doing labour work and used to earn about

Rs.18,000/- per month and he was aged 28 years.

It is further stated that prior to the date of

accident, he was hale and healthy and in view of

the injury sustained in the accident, it has become

difficult for him to do the same work as he was able

to do it prior to the date of accident. Due to the

impact of accident and after sustaining injuries, the

claimant is not able to walk properly and he has

limp while walking. Hence, the claimant has

preferred the claim petition against the respondents

seeking compensation.

6. On service of notice, respondents

appeared before the Court and filed statement of

objections inter alia contending that the petition is

not maintainable and the accident has not occurred

due to rash and negligent driving of the driver of

the offending vehicle. The 1st respondent - Owner

of the offending vehicle took up the plea that his

vehicle was covered by insurance policy of 2nd

respondent. Whereas 2nd respondent took up the

plea inter alia denying age and income of claimant

and also pleaded that there was contributory

negligence on the part of the rider of the vehicle

which was involved in the accident. He also took up

the plea that the offending vehicle's driver did not

have a valid and effective driving licence as on date

of occurrence of accident. Based on these

pleadings, he sought for dismissal of claim petition.

7. On the basis of the pleadings, the

Tribunal framed relevant issues.

8. Since rider of the motor cycle, viz.,

B.R.Naveenkumar also preferred a claim petition,

common evidence was adduced in both matters

i.e., by rider as well as pillion rider. They examined

themselves as P.W.1 and P.W.2 respectively and

got marked Exs.P-1 to P-52. Thereafter, the Doctor

came to be examined as P.W.3 and through whom,

Exs.P-53 to P-57 were got marked. In all, P.Ws. 1

and 2 got marked Exs.P-1 to P-63.

      9.    On    the   other    hand,    respondent    -

Insurance    Company       got     examined   its   Legal

Executive Officer as R.W.1 and got marked Exs.R-1

to R-6.

10. After hearing both sides, learned counsel

for claimant as well as insurer, the Tribunal granted

global compensation of Rs.1,00,000/- with interest

at 9% per annum. Being aggrieved by the

Judgment and award of the Tribunal, the claimant

has preferred this appeal seeking enhancement.

11. It is the contention of learned counsel

appearing for claimant that the judgment and

award of the Tribunal is erroneous and the same is

contrary to the evidence both oral and documentary

produced by the claimant, which have not been

taken into consideration thereby causing serious

miscarriage of justice to the claimant. It is further

contended that the Tribunal grossly erred in only

awarding global compensation of Rs.1,00,000/- and

has not at all considered the material evidence with

regard to age, avocation, income and disability

which is clearly stated by the Doctor - P.W.3. He

further contends that the Tribunal erred in not

awarding compensation on the other heads, viz.,

'loss of amenities', 'future medical expenses', 'pain

and suffering', 'loss of earning during laid up

period', 'food, nourishment and conveyance

charges' and other heads as required. On the basis

of this submission, learned counsel for claimant

seeks to allow the appeal and enhance

compensation consequently.

12. Per contra, learned counsel for the

respondent - Insurer vehemently contends that the

judgment and award passed by the Tribunal is fair,

just and reasonable and does not call for

interference. He contends that the award is passed

on the basis of material documents produced both

oral and documentary and since no cogent proof of

income has been produced, the Tribunal has

awarded global compensation which does not call

for interference. On the basis of this submission, he

seeks for dismissal of the appeal and consequently,

affirm the award passed by the Tribunal.

13. Having heard the learned counsel for

claimant and learned counsel for respondent -

Insurer, the points that arise for consideration

before this Court are,

(a) Whether the Tribunal has grossly erred in awarding meager compensation without considering the material evidence on record?

(b) Whether enhancement is called for in the present case on hand?

14. Having heard the learned counsel for

appellant and respondent No.2, I am of the opinion

that the Tribunal has erred in not considering the

material evidence and has awarded meager

compensation. The Tribunal has also erred in not

awarding just and reasonable compensation on the

other heads and has failed to take into

consideration the disability. Accordingly, the

claimant is entitled to enhancement of

compensation for the reasons stated herein below.

15. It is not in dispute that the accident

occurred on 03.06.2018 between two wheeler as

mentioned above and the Maxi Toofan - Four

wheeler vehicle coming from the opposite direction

due to which the claimant - pillion rider as well as

the rider suffered injuries, as mentioned in the

claim petition and also elaborated by the Doctor in

his evidence. In order to establish the aspect of

negligence and rashness on the part of the driver of

the offending vehicle, the claimant has produced

Exs.P-1 to Exs.P-7 which are the police records. It

has been produced pursuant to the investigation

and enquiry conducted by the jurisdictional police.

16. Police records are not seriously disputed

and there is no challenge made to the charge sheet

laid by the jurisdictional police against the driver of

the offending vehicle. There is also no contrary

material placed before this Court either through the

cross-examination or by evidence of the

respondents that these documents are concocted

and fabricated. Therefore, negligence on the part of

the driver of the offending vehicle is proved as

there is no contra material placed to disprove the

documents produced by the claimant at Exs.P-1 to

P-7. When such being the case, the Tribunal has

rightly concluded that the rashness and negligence

is attributed as against the driver of the offending

vehicle, viz., Maxi Toofan Four Wheeler.

17. Coming to the aspect of income,

avocation and age of claimant, in the present case

on hand though it is alleged that the claimant was

aged 28 years and was working as mason and was

earning Rs.18,000/- per month, no material has

been placed before the Tribunal or before this Court

to substantiate the same. The Tribunal has grossly

erred in not assessing the income of claimant to

arrive at an appropriate computation of

compensation. The Tribunal has merely awarded

global compensation of Rs.1,00,000/- which is

erroneous and the same requires to be set aside.

Accordingly, it is set aside.

18. The claimant got examined the Doctor as

P.W.3 who deposed before the Tribunal that the

claimant herein has sustained fracture of right

femur, fracture of lower 1/3rd of his right tibia and

fibula and other injuries and that he was inpatient

for 15 days and further he took follow-up treatment

for another one month and was operated and rods,

screws, plates and nails were implanted. P.W.3 -

Doctor has opined that the claimant is having 49%

disability to his right leg component, thereby

suffering from partial and permanent disability. This

aspect of disability has not been considered by the

Tribunal and no amount is awarded towards loss of

earning capacity due to disability. If 49% disability

is assessed by the doctor towards his right leg

component, after deducting 1/3rd, the whole body

disability comes to 16%, which has not been

considered by the Tribunal. Hence, I deem it

appropriate that in the present facts and

circumstances of the case and on the evidence

adduced by the Doctor, the disability ought to have

been taken at 16% to the whole body after

deducting 1/3rd. Taking the same into

consideration, the claimant should have certainly

suffered disability to perform his normal day to day

functioning.

19. Having considered the same, in view of

there being no proper material produced regarding

proof of income, courts will have to do guess work

and in order to do such guess work, standard

method has been adopted by Legal Services

Authority by prescribing Notional Income Chart for

relevant years of accident. In the present case,

accident having occurred in the year 2018, notional

income is prescribed at Rs.12,500/- per month

which should have been taken by the Tribunal for

assessment of income and for assessing loss of

future earning capacity. Accordingly, the income is

taken as at Rs.12,500/- per month. In view of the

fact that the claimant was aged 28 years,

appropriate multiplier would be '17' as per the

judgment of the Apex Court in the case of Sarla

Verma (Smt) and others vs. Delhi Transport

Corporation and another, reported in (2009) 6

Supreme Court Cases 121, and the same is

taken for computation. Therefore, the 'loss of

future earning capacity' would be Rs.4,08,000/-

(Rs.12,500/- x 12 x 17 x 16/100).

20. It is seen from the records and the

evidence adduced by the parties that the claimant

was inpatient for a period of 15 days and had

undergone surgery and rods, screw, plates, nails

were implanted. In view of the same, under the

head 'food, nourishment and conveyance charges',

claimant would be entitled to Rs.15,000/- at

Rs.1,000/- per day.

21. In view of the fact that the claimant was

inpatient for 15 days and he had suffered injuries,

under the head 'pain and suffering', claimant would

be entitled to Rs.25,000/-.

22. As stated earlier, the claimant had

suffered two fractures and was inpatient for 15

days, and thereafter, he took follow up treatment,

the claimant would have to undergone rest for a

period of atleast 4 months. In view of the fact that

this Court has taken income at Rs.12,500/- per

month, Rs.12,500 x 4 = Rs.50,000/- is taken as

'loss of income during laid-up period.

23. Towards 'loss of amenities', I deem it

appropriate to award Rs.25,000/-.

24. The claimant has produced Exs.P-18 to

P-37, which are prescriptions and medical bills for

having undergone treatment and expended

amount. The amount so expended is around

Rs.6,029/-. The Tribunal ought to have awarded

actual amount of expenses meted out by the

claimant which has not been done. Hence, I deem it

appropriate to award Rs.6,029/- towards 'medical

expenses' as per Exs.P-18 to P-37.

25. Admittedly, the Doctor - P.W.3 had not

opined with regard to future medical expenses to

be incurred by the claimant in his evidence and

neither is there any material evidence placed on

record. However, considering that the claimant has

undergone surgery and rods, screw, plates and

nails were implanted, I deem it appropriate to

award Rs.25,000/- towards 'future medical

expenses', which shall not carry interest.

26. In view of the discussions made above,

I am of the opinion that the claimant is entitled to

just and reasonable compensation as mentioned

in the table below.

                                 Compensation
             Heads                awarded by
                                   this Court
                                      (Rs.)
 Loss of future earning capacity        4,08,000
 Food, nourishment and                    15,000
 Conveyance charges
 Pain and suffering                       25,000
 Loss of income during laid up            50,000
 period
 Loss of Amenities                        25,000
 Medical expenses                          6,029
 Future Medical Expenses                  25,000
                Total                  5,54,029

27. Accordingly, I pass the following:

ORDER

a) The appeal is partly allowed.

b) The judgment and award passed by the

Senior Civil Judge & MACT, Challakere, in MVC

No.788/2018 is hereby modified.

c) The petitioner is entitled to a total

compensation of Rs.5,54,029/- as against

Rs.1,00,000/- awarded by the Tribunal.

d) The enhanced compensation shall be

deposited/paid by the second respondent -

insurer with interest at 6% p.a. from the date