Sri A Madesh vs The Manager
2022 Latest Caselaw 2156 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF FEBRUARY, 2022

                         BEFORE

        THE HON'BLE Mr. JUSTICE P. KRISHNA BHAT

MISCELLANEOUS FIRST APPEAL No.8641/2010 (MV)

BETWEEN:

SRI A MADESH
S/O LATE APPAJAPPA
AGED ABOUT 42 YEARS
R/AT NO.9/2, 18TH CROSS
K.P. AGRAHARA, MAGADI ROAD
BHUVANESHWARI NAGARA
BANGALORE-560 023.
                                             ...APPELLANT
(BY SRI G.K. SREEVIDYA, ADVOCATE thro' VC)

AND:

1.     THE MANAGER
       M/S. THE ORIENTAL INSURANCE
       CO. LTD., NO.1001/58
       JAYALAKSHMI MANSION, 2TH FLOOR
       DR. RAJKUMAR ROAD
       4TH BLOCK, RAJAJINAGAR
       BANGALORE-560 010

2.    THE MANAGING DIRECTOR
      M/S. MINERVA TOURS & TRAVELS PVT. LTD.
      NO.25/7 & 8, MUNIBASAPPA BUILDING
      LALBAGH FORT ROAD
      BANGALORE-560 004.
                                         ...RESPONDENTS
(BY SRI S.Y. SHIVALLI, ADVOCATE FOR R.1
R.2 IS SERVED)
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      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 09.06.2010 PASSEDIN MVC No.5144/2008 ON THE FILE
OF VIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.


     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                           JUDGMENT

This appeal is at the instance of claimant seeking

enhancement of compensation awarded in MVC

No.5144/2008 by judgment and award dated 09.06.2010

by the learned VIII Additional Judge, Court of Small

Causes, Member MACT, Bangalore (for short 'Tribunal').

2. The appellant was the claimant. His case is that on

27.01.2008 at about 10.30 p.m., he was proceeding along

with others in a Maxicab Tempo Traveler bearing

Regn.No.KA-01/AC-991 as a passenger and near

Thimmanayakanahalli road, on account of rash and

negligent driving of the vehicle by its driver, the Maxicab

dashed against a roadside tree and consequently, the

claimant/appellant suffered serious injuries.

3. Before the learned Tribunal, respondent-Insurance

Company and owner of the vehicle contested the

proceedings by filing separate written statements.

4. During the Trial, the claimant examined himself as

PW.1 and examined an Orthopedic Surgeon as PW.4. In

the common trial, upon examination of the claimant and

others by the MACT, Exs.P.1 to P.26 were marked.

Respondents did not examine any witness and no

documents were marked. The learned Tribunal, after

hearing learned counsel on both sides and on perusal of

the records, allowed the claim petition of the

claimant/appellant in-part and awarded compensation of

Rs.80,500/- with interest at 6% per annum from the date

of petition till the date of deposit in Court.

5. Learned counsel for the appellant submits that the

learned Tribunal has taken the notional income of the

claimant at a lower amount of Rs.3,500/- per month even

though the notional income fixed by the Karnataka State

Legal Services Authority in the year 2008 is Rs.4,500/- per

month. She submitted that even though the claimant had

suffered two fractures, under the head 'pain and suffering',

only Rs.25,000/- was awarded. She submitted that on

several other heads also, lower compensation was awarded

and therefore, the claimant/appellant is entitled to

enhanced compensation and therefore, the appeal requires

to be allowed.

6. Heard learned counsel for the Insurance Company

Sri S.Y. Shivalli, who submitted that the judgment and

award made by the learned Tribunal is just and reasonable

and there is no good ground to interfere with the same.

He further submitted that the appeal is liable to be

dismissed.

7. I have considered the rival contentions and carefully

perused the records.

8. Ex.P.5 is the Wound Certificate pertaining to the

appellant. It shows that he had suffered fracture of the

distal end of left radius and further fracture of left patella

knee joint and one surgery was also performed on him for

the fracture of the radius. Therefore, the award of

Rs.25,000/- towards 'pain and suffering' by the learned

Tribunal appears to be on the lower side. Hence,

Rs.40,000/- is awarded under the head 'pain and

suffering'.

9. Learned counsel has pointed out that Ex.P.6 are the

medical bills produced towards expenses incurred for the

treatment of appellant/claimant and they add-up to

Rs.3,420/-. Even though the Discharge Summary has not

been produced, it is evident that on account of two

fractures, he would have been in-patient in the hospital.

Therefore, the award made under the head 'medical

expenses' in a sum of Rs.15,000/- appears to be on the

lower side as no other separate compensation has been

awarded towards 'attendant expenses, nourishing food and

conveyance charges'. Accordingly, the award of

compensation under the head 'medical expenses' at

Rs.15,000/- is retained. Further, a sum of Rs.10,000/- is

awarded under the head 'attendant expenses, nourishing

food and conveyance charges'.

10. Learned Tribunal after discussing the deposition of

Orthopaedic Surgeon examined as PW.4 has rightly held

that the evidence regarding disability cannot be accepted

and I agree with the same. However, taking into

consideration the two fractures suffered one in the knee

and another on the left radius, a sum of Rs.25,000/-

awarded under the head 'loss of amenities in life' is

maintained.

11. Towards 'loss of income during laid-up period,

Rs.10,500/- was awarded, which appears to be on the

lower side. In view of the nature of fractures suffered and

also the nature of employment of the claimant mainly as a

Tailor, he would not have been able to do his work atleast

for a period of six months and accordingly, Rs.27,000/-

(i.e. Rs.4,500/- per month x 6months = Rs.27,000/-) is

awarded under the head 'loss of income during laid-up

period'.

12. From the discussions in the impugned judgment and

award, I do not find any basis for awarding Rs.5,000/-

under the head 'future medical expenses'. Therefore, the

same is disallowed. The learned Tribunal has awarded

Rs.80,500/- as total compensation [less Rs.5,000/-

awarded by learned Tribunal towards future medical

expenses]. Thus, in all claimant/appellant is entitled for

the enhanced compensation of Rs.41,500/- with interest at

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

payment.

13. The appeal is partly allowed to the aforesaid extent.

Deposit of enhanced compensation amount of Rs.41,500/-

to be made within six weeks from the date of receipt of

certified copy of this judgment.

Office to send back the Trial Court Records forthwith,

if received already.

Sd/-

JUDGE mv