R. Govinda Raju vs G. Rajendra
2022 Latest Caselaw 6002 Kant

                                 1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF APRIL, 2022

                          PRESENT

     THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                                AND

         THE HON'BLE MRS. JUSTICE M.G. UMA

             M.F.A NO. 2896 OF 2016 (MV-I)

BETWEEN :
R. GOVINDA RAJU
S/O. LATE S.K. RAMACHANDRA SHETTY
AGED ABOUT 63 YEARS
R/AT 100 FEET ROAD
NEAR PETROL BUNK
VINOBANAGARA
SHIVAMOGGA - 577 201.                 ...APPELLANT

(BY SHRI. P.N. HARISH, ADVOCATE)

AND :
1.     G. RAJENDRA
       S/O. G.R. GANESHA
       AGED ABOUT 35 YEARS
       R/O. BHADRA COLONY
       BHADRAVATHI TALUK - 577 301
       SHIVAMOGGA DISTRICT.

2.     M. KUMARA
       S/O. MARIJOGI
       AGED 33 YEARS
       R/O. HARIGE, 5TH CROSS
       SHIVAMOGGA - 577 201.
                              2




3.   THE NEW INDIA ASSURANCE
     COMPANY LIMITED
     B.H. ROAD, NEAR VIJAYA BANK
     SHIVAMOGGA-577 201.                 ...RESPONDENTS

(BY SHRI. C R RAVISHANKAR, ADVOCATE FOR R-3;
    R-2 SERVED;
    VIDE ORDER DTD. 21.09.2017 NOTICE
    TO R-1 IS HELD SUFFICIENT)
                          ....
      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED30.10.2015 PASSED IN MVC
NO.606/11 ON THE FILE OF THE 2ND ADDITIONAL DISTRICT
JUDGE & AMACT-2, SHIVAMOGGA, PARTLY ALLOWING THE
CLAIM   PETITION    FOR   COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

      THIS MFA COMING ON FOR ADMISSION THIS DAY,
P.S. DINESH KUMAR J, DELIVERED THE FOLLOWING:-


                      JUDGMENT

This appeal is filed by the injured claimant

challenging the judgment and award dated October

30, 2015 in MVC No.606/2011 on the file of the II

Additional District Judge and Additional MACT-II,

Shimoga.

2. Heard Shri. P.N.Harish, learned Advocate

for the claimant and Shri. C.R. Ravishankar, learned

Advocate for the Insurer.

3. For the sake of convenience, parties shall

be referred as per their status in the Tribunal.

4. Brief facts of the case are, petitioner

approached the Tribunal with the instant claim petition

contending inter alia that on May 7, 2011, the

offending bus dashed against him on the hind side

when he was walking near Police Chowki in

Vinobhanagara, Shimoga; that he sustained grievous

injuries and was shifted to Nanjappa Hospital; that

prior to accident, he was running a condiment shop

and earning Rs.12,500/- per month; and sought for

compensation.

5. The driver and owner of the bus remained

exparte. The Insurer contested the claim. On

consideration of the material on record, the Tribunal

has awarded Rs.1,82,600/- as compensation. Hence,

this appeal, seeking enhancement.

6. Shri. Harish, for the claimant submitted

that the claimant has suffered serious head injury.

But, the Tribunal has held that claimant is entitled for

compensation for the injuries mentioned in Ex.P6 and

awarded Rs.1,00,000/- towards loss of amenities. He

submitted that claimant has suffered head injury and

therefore, the Tribunal ought to have awarded

adequate compensation.

7. In substance, the learned Advocate for the

claimant sought enhancement of compensation

without precisely stating the ground for enhancement.

It is stated in the Memorandum of appeal that the

Tribunal has erred in awarding only Rs.1,00,000/-

towards pain and suffering, whereas, claimant is

entitled for another sum of Rs.3,00,000/- and

Rs.2,00,000/-.

8. Learned Advocate for the Insurer argued in

support of the judgment and submitted that claimant

has not made out any case for enhancement and

sought for dismissal of this appeal.

9. We have carefully considered rival

contentions and perused the records.

10. The injuries sustained by the claimant are

recorded in Ex.P6 and they read as follow:

1. Hemorrhage contusion with associated subarachnoid bleed in Bilateral Temporal and frontal lobes.

2. 2mm small subdural Hematoma along right frontal temporal convexity.

3. Hyperdensity along Bilateral tentoriam probable subdural bleed.

4. Undisplaced fracture of left temporal bone.

5. Undisplaced fracture of left parietal bone.

11. The Tribunal has awarded Rs.1,00,000/-

towards pain and suffering and loss of amenities. On

behalf of the claimant, two witnesses are examined.

Claimant has examined himself as P.W.1 and one Dr.

Narayana Panji as P.W.2. Doctor has stated in his

examination-in-chief that claimant had suffered

fracture of skull bone, fracture of mandible joint with

multiple brain hemorrhages and he was discharged

against medical advice. He has further stated that

claimant had not consulted him and he did not know

the further status of the claimant. Learned Advocate

for the claimant had sought to declare Doctor has

hostile witness, but the Tribunal has refused. Thus,

evidence of P.W.2 is not of any assistance to the

claimant to support his ground for enhancement.

12. Tribunal has noted that claimant had spent

Rs.56,658/- towards medical expenses and it has

awarded Rs.70,000/-. Tribunal has awarded a sum of

Rs.2,600/- towards loss during the treatment period

based on claimant's deposition that he was running a

Beeda shop. It has awarded another sum of

Rs.10,000/- towards loss of expectancy of life.

13. Except seeking enhancement of

compensation by oral submission, there is no material

on record to consider this appeal. Ex.P7 is the

Discharge Summary of Nanjappa Hospital. Claimant

was inpatient in the Department of Neuro Surgery

between 07.05.2011 and 19.05.2011, i.e., for 13

days. In our view, with the injuries noted in Ex.P6, a

patient would require about six months to fully

recover. No material is placed on record to compute

loss of income during the laid-up period. This Court

has been considering the notional income of an able-

bodied person in the year 2011 as Rs.6,500/-.

Accordingly, in our view, it would be just and

appropriate to award compensation for six months

towards laid-up period, which works out to

Rs.39,000/-. In addition, claimant is also entitled for

food, nourishment and other miscellaneous.

expenditure of Rs.30,000/-. Accordingly, the claimant

is entitled for a compensation of Rs.69,000/- (rounded

off to Rs.70,000/-), in addition to the compensation of

Rs.1,82,600/- awarded by the Tribunal. In all, the

claimant is entitled for a total compensation of

Rs.2,52,600/-.

14. In view of the above, following:

ORDER

(a) Appeal is allowed in part by holding that

the claimant is entitled for a compensation of

Rs.2,52,600/- as against the compensation awarded

by the Tribunal at Rs.1,82,600/- with interest at 6%

p.a. from the date of petition till deposit/payment.

(b) The owner and the insurer are jointly and

severally liable to pay the said compensation.

(c) Insurer shall pay the entire compensation

amount of Rs.2,52,600/- with interest at 6% p.a.,

excluding the amount paid/deposited, if any, within

eight weeks from the date of receipt of a copy of this

order. Disbursement shall be made as directed by the

Tribunal.

No costs.

Sd/-

JUDGE

Sd/-

JUDGE

SPS