Karnataka High Court

Sri Harish K vs M/S Sathya Sai Tourist on 4 February, 2022

Bench: P.Krishna Bhat

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 04TH DAY OF FEBRUARY, 2022

                         BEFORE

         THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

                MFA NO. 9596/2011 (MV)

BETWEEN:

SRI HARISH K
S/O SUBBA REDDY
AGED ABOUT 23 YEARS
R/AT NO.102, JAMBUSAVARI DINNE
J P NAGAR
BANGALORE
                                           ... APPELLANT
(BY SMT. G.K. SREEVIDYA, ADVOCATE FOR
    SRI. T.N. VISHWANATH, ADVOCATES)

AND:

1.     M/S SATHYA SAI TOURIST
       S S CHAMBERS,
       NO.151/71/1,
       36TH CROSS 5TH BLOCK,
       JAYANAGAR
       NEAR TELEPHONE EXCHANGE
       BANGALORE
2.   M/s ICICI LOMBARD GENERAL INSURANCE CO LTD
     REGIONAL OFFICE NO.89
     2ND FLOOR, SVR COMPLEX
     HOSUR MAIN ROAD, MADIWALA
     BANGALORE-560068
                                       ... RESPONDENTS
(BY SRI. B. PRADEEP ADVOCATE FOR R2;
    V/O DATED 27.09.12 NOTICE TO R1 D/W)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 24.1.2011 PASSED IN
                                 2




MVC NO.6883/2009 ON         THE FILE OF PRINCIPAL MACT &
CHIEF JUDGE, COURT          OF SMALL CAUSES, BANGALORE,
PARTLY   ALLOWING           THE    CLAIM   PETITION  FOR
COMPENSATION   AND          SEEKING   ENHANCEMENT     OF
COMPENSATION.

    THIS MFA COMING ON FOR HEARING THIS DAY,
THROUGH VIDEO CONFERENCE/ PHYSICAL HEARING, THE
COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

This appeal is at the instance of the claimant seeking

enhancement of compensation awarded by the judgment and

award dated 24.01.2011 passed in MVC No.6883/2009 by the

Principal MACT & Chief Judge, Court of Small Causes,

Bangalore.

2. Claimant has alleged in the claim petition that on

22.06.2009 while he was driving his auto-rickshaw bearing

No.KA-05-AA-4764 near Royal Country Layout, the offending

Qualis car bearing registration No.KA-05-C-4630 came from

opposite direction being driven in a rash and negligent

manner and dashed against the auto-rickshaw resulting in

serious injuries to the claimant.

3. Before the learned Tribunal, the owner of

offending vehicle has remained absent and he was placed

exparte. Insurance company filed its detailed written

statement denying material averments made in the claim

petition.

4. During trial, claimant examined himself as PW1

and he examined a surgeon from Sanjay Gandhi Hospital as

PW2. Exs.P-1 to P-18 were marked for claimant. Respondent

Nos.1 and 2 did not examine any witness and no documents

were marked on behalf of them.

5. After hearing the learned counsel on both sides

and perusing the records, learned Tribunal allowed the claim

petition in part awarding a compensation of Rs.1,41,581/-

with interest thereon at 6% p.a. from the date of petition till

date of payment.

6. Learned counsel for the claimant submitted that

learned Tribunal has awarded a lower compensation and it has

considered the monthly income of the claimant only at

Rs.4,000/- even though he was an auto-rickshaw driver. It

was also contended by the learned counsel for the appellant

that under the head of loss of amenities, loss of income

during laid up period, pain and sufferings, conveyance and

attendant charges, nourishment, food and loss of future

earning capacity, learned Tribunal has awarded a lower

compensation. It is therefore submitted that appeal is

required to be allowed and compensation be enhanced.

7. Learned counsel for the insurance company, per

contra, contended that even the learned Tribunal has taken

the whole body disability at 5%, but on that ground it has

erred in granting compensation for loss of earning capacity

while the claimant has not at all shown that he does not

continue to drive the auto-rickshaw for earning his livelihood

and he has not shown that he has surrendered his driving

licence. He submitted that learned Tribunal has awarded just

and reasonable compensation and therefore there is no

necessity to enhance the compensation awarded by the

learned Tribunal.

8. Learned Tribunal has noted the injury suffered by

the claimant as follows [as per Ex.P-6]:

(1) Head injury with frontal hemorrhagic contusions;

(2) Degloving injury to right elbow and forearm with fracture upper third ulna.

9. It has also noted the wound certificate (Ex.P-8)

issued by the Sanjay Gandhi Hospital. As per the same, there

was fracture of ulna right. Further as per Ex.P-9, claimant

was admitted to Nimhans Hospital for few hours on

23.06.2009 and medical records on that showed the

following:

      (1)    Ear bleeding
      (2)    Left supra orbital abrasion
      (3)    Degloving injuries - right elbow
      (4)    Right knee abrasion

10. Ex.P-9 - case record showed fracture of upper

third right ulna and right temporal linear fracture. It is not in

dispute that appellant was inpatient for 30 days. Based on

Ex.P-12 - medical bills, learned Tribunal awarded

compensation in a sum of Rs.38,381/- towards 'medical

expenses'.

11. Since claimant has suffered fracture of right ulna

and also he has suffered fracture of temporal bone and there

was degloving injury and he was inpatient for 30 days, under

the head of 'pain and sufferings' a sum of Rs.50,000/- is

awarded.

12. He was inpatient for 30 days and he had fracture

of temporal bone and facture of right ulna and therefore, he

would not have been in a position to work atleast for a period

of 4 months. For the year 2009, the notional income fixed by

the Karnataka State Legal Service Authority is Rs.5,000/-.

Claimant has asserted that he was an auto-rickshaw driver

and has also produced driving licence - Ex.P-15 to the said

effect. Therefore, for the year 2009, his notional income is

fixed at Rs.5,500/- per month. Thus, a sum of Rs.22,000/-

(Rs.5,500x4) is awarded under head of 'loss of earning during

laid up period'.

13. Since he was inpatient for 30 days under the head

of 'attendants and conveyance charges', a sum of Rs.21,000/-

is awarded and under the head of 'nourishment and food' a

sum of Rs.10,000/- is awarded.

14. PW2 has stated in detail about the condition of the

claimant as on 10.12.2010. As per the same, there was some

defirmity in the right forearm and wasting of forearm. He has

noted some restriction in the movement of right arm. He has

stated in detail about restriction in the coordinated activities,

which would affect his normal and routine day-to-day

activities. In that view of the matter, under the head of 'loss

of amenities' a sum of Rs.50,000/- is awarded.

15. Even though learned Tribunal based on the

medical evidence has taken the whole body disability at 5%

for the claimant, it is not the case of claimant that after the

treatment period was over he cannot any longer drive the

auto-rickshaw and earn his livelihood. He has also not shown

that he has surrendered his driving licence. Under such

circumstances, on the records placed before the Court, it is

difficult to come to a conclusion that there is any functional

disability resulting in loss of earning capacity and therefore,

no compensation need be awarded for 'loss of earning

capacity'.

Thus, in all claimant is entitled to:

Sl.No.            Particulars                          Amount (Rs.)
   1   Pain and sufferings                                50,000-00
   2   Medical expenses                                   38,381-00
   3   Loss of earning during laid up                     22,000-00
       period
   4   Attendant and conveyance charges                    21,000-00
   5   Nourishment and food                                10,000-00
   6   Loss of amenities                                   50,000-00
                     TOTAL                              1,91,381-00


      16.      Thus   in   all   claimant     is   entitled    to    total

compensation of Rs.1,91,381/-. Learned Tribunal has already

awarded a sum of Rs.1,41,581/-. Therefore, claimant is

entitled to enhanced compensation of Rs.49,800/- with

interest @ 6% p.a. from the date of petition till date of

payment.

Hence, the following:

JUDGMENT

(1) Appeal is allowed in part.

(2) Judgment and award dated 24.01.2011

passed in MVC No.6883/2009 by the

Principal MACT & Chief Judge, Court of

Small Causes, Bangalore, is modified by