Karnataka High Court
Somesha S/O Late Thimmashetty vs Mallesha S/O Late Karigowda on 15 February, 2022
Bench: P.Krishna Bhat
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MISCELLANEOUS FIRST APPEAL NO.8553 OF 2011 (MV)
BETWEEN:
SOMESHA
S/O. LATE THIMMASHETTY,
AGED 42 YEARS,
NO.116, 9TH CROSS,
BEHIND GOVT. SCHOOL, BOGADHI,
MYSORE.
... APPELLANT
(BY SRI S.N. BHAT, ADV.)
AND:
1. MALLESHA
S/O. LATE KARIGOWDA,
AGED 31 YEARS,
RESIDING AT CHIKKABYADARAHALLI CIRCLE,
PANDAVAPURA TALUK,
MANDYA DISTRICT.
2. SATHISH
S/O. MAHADEVU,
AGED 36 YEARS,
RESIDING AT CHIKKABYADARAHALLI CIRCLE,
PANDAVAPURA TALUK,
MANDYA DISTRICT.
3. UNITED INDIA INSURANCE CO. LTD.
BRANCH NO.1119/8,
M.C. ROAD, MANDYA.
... RESPONDENTS
(BY SRI M.S. SRIRAM, ADV., FOR R-3,
NOTICE TO R-1 & R-2 IS DISPENSED WITH VIDE ORDER
DATED 12-11-2013)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND
AWARD DATED 29-6-2011 PASSED IN M.V.C. NO.192 OF 2010 ON THE
FILE OF PRESIDING OFFICER, FAST TRACK COURT-I & MEMBER
ADDITIONAL MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
This appeal is at the instance of the claimant seeking
enhancement of the compensation awarded in the judgment
and award dated 29-6-2011 in M.V.C. No.192 of 2010 passed
by the Fast Track Court-I and Additional Motor Claims
Tribunal, Mysuru.
2. The facts of the case are not required to be stated in
view of narrow scope of dispute raised in this appeal.
3. Learned counsel for the appellant-claimant makes
three fold grievances on the compensation awarded by the
Tribunal. Firstly, he submits that the claimant was a panipuri
vendor, aged thirty-five years, and had suffered comminuted
fracture of upper 3rd of right tibia and since his job requires him
to stand entirely to serve his customers, compensation awarded
under the head of pain and sufferings is on the lower side and it
is required to be enhanced. Secondly, he submitted that for the
same reasons, the claimant would not have been in a position
for a period of five months immediately following the accident
and therefore, under the head of loss of income during laid up
period, the compensation awarded is also on the lower side and
the same requires to be enhanced. Lastly, he submitted that the
compensation awarded in a sum of Rs.3,200/- for loss of
amenities is too low and the same also requires to be enhanced.
4. Learned counsel for the respondent-Insurance
Company submitted that the compensation awarded by the
Tribunal is just and reasonable and there is no case made out
for enhancing the compensation under any of the heads and the
appeal lacks merit and it is liable to be dismissed.
5. I have given my anxious consideration to the
submissions made by the learned counsel on both sides and
perused the records.
6. Ex.P.2 is Wound Certificate which shows that the
claimant had suffered two simple injuries and comminuted
fracture of upper 3rd of right tibia. He was in Hospital as in-
patient for 46 days. In that view of the matter, amount awarded
in a sum of Rs.50,000/- under the head of pain and sufferings
is reasonable and just and no case is made out to enhance the
same.
7. The Tribunal awarded Rs.16,000/- towards loss of
income during laid up period. Case of the claimant before the
Tribunal is that he was a panipuri vendor and even otherwise, if
he is considered as a manual labourer in view of the suffering of
fracture in the leg, notional income of Rs.5,000/- per month is
fixed for the year 2009 as per the chart prepared by the
Karnataka Legal Services Authority. Therefore, he is required to
be awarded by Rs.25,000/- (5,000 x 5 months) for the loss of
income during laid up period.
8. For the loss of amenities of life, the Tribunal has
awarded Rs.3,200/-. As already noticed, the claimant had
suffered fracture of right lower limb which is comminuted one
and his avocation requires him to be standing through out the
day. Evidence of P.W.2-Doctor shows that he has suffered
discomfort in his day-to-day activities on account of injuries
suffered. Therefore, I am of the view that a reasonable sum of
Rs.35,000/- is required to be awarded under the head of loss of
amenities.
9. Thus, the claimant is entitled for following
compensation:
As awarded by As awarded
Heads the Tribunal by this Court
(in Rs.) (in Rs.)
Pain and
50,000.00 50,000.00
suffering
Conveyance 7,000.00 7,000.00
Attendant's
12,000.00 12,000.00
charges
Loss of income
during treatment 16,000.00 25,000.00
period
Medical expenses 1,57,800.00 1,57,800.00
Loss of amenities 3,200.00 35,000.00
Total 2,46,000.00 2,86,800.00
Accordingly, the appeal is hereby partly allowed. The
claimant is entitled to enhanced compensation of Rs.40,800/-
(Rupees forty thousand and eight hundred only) with interest at
the rate of 6% per annum from the date of petition till the date
of payment. Insurance Company is directed to deposit the
award amount within six weeks' from the receipt of a certified
copy of this judgment. Transmit the records to the Tribunal,
forthwith.
Sd/-
JUDGE
kvk
