Karnataka High Court
Erappa vs The Managing Director Ksrtc on 25 January, 2022
Bench: P.Krishna Bhat
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MISCELLANEOUS FIRST APPEAL NO.2798/2014(MV-I)
BETWEEN:
ERAPPA
S/O CHANDRAIAH @ MARIAPPA
AGED ABOUT 36 YEARS,
R/AT: C/O MOHAN RAO,
RBF BRICK FACTORY,
KIRANAGERE,
KANANKAPURA TQ RAMANAGAR-DIST-562117.
... APPELLANT
(BY SRI. P SURESH, ADVOCATE)
AND:
1. THE MANAGING DIRECTOR,
KSRTC, CENTRAL DIVISION
SHANTHINAGAR, K.H.ROAD,
BANGALORE-560027
2. THE NEW INDIA ASSURANCE CO.LTD.,
BANGALORE REGIONAL OFFICE (T.P.HUB)
2-B, UNITY BUILDING, ANNEXE-E,
P.KALINGA RAO ROAD,
BANGALORE-560027
REP.BY ITS INCHARGE MANAGER
3. VARADARAJU
S/O LATE. VARADIAH
DIED, (HENCE WIFE IS THE LR)
2
3(a) SUMA
W/O LATE VARADARAJU,
R/AT HULUGONDANAHALLI-VG,
HAROHALLI-HO, KANAKAPURA-TQ,
RAMANAGAR DIST
(LRS OF OWNER OF AUTO VEHICLE)
4. KRISHNAPPA
S/O LATE HANUMAIAH
MAJOR IN AGE
R/AT:SINDLYAPURA VG,
YERHALLI DAKALE,
MEDAMARANAHALLY ,KANAKAPURA-TQ,
RAMANAGAR-DIST, (DRIVER OF AUTO)
... RESPONDENTS
(BY SRI. T. HARISH BHANDARY, ADVOCATE FOR R1;
NOTICE TO R2 TO R4 IS DISPENSED WITH
VIDE ORDER DATED 12.1.2015)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 11.12.2013 PASSED IN
MVC NO.6028/2008 ON THE FILE OF THE 8TH ADDITIONAL
SMALL CAUSES JUDGE, 33RD ACMM, MEMBER, MACT,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY,
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THE
COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
This appeal is at the instance of claimant seeking
enhancement of the compensation awarded in MVC
No.6028/2008 by judgment and award dated 11.12.2013
passed by VIII Additional Small Causes Judge and The Motor
Accident Claims Tribunal (SCCH-5), Bengaluru.
2. Claim petition proceeds on the allegation that on
24.02.2008 at about 4.00 p.m. the appellant along with
others was traveling in auto-rickshaw bearing registration
No.KA 42 366 and when it reached near Tamsandra, a bus
bearing registration No.KA-01-F-7380 belonging to KSRTC
came in a rash and negligent manner and dashed against the
auto-rickshaw resulting in serious injuries to the appellant and
several others.
3. Before learned Tribunal the claim petition was
contested by the respondents by filing a detailed written
statement.
4. Trial of all the claim petitions were held in
common and appellant examined himself as PW1 and he also
examined one doctor as PW5. Exs.P-1 to P-35 were marked.
RW1 and RW2 were examined for the respondents and Exs.R-
1 to R-6 were marked.
5. After hearing the learned counsel on both sides
and appreciating the materials placed before it, learned
Tribunal allowed the claim petition in part awarding a
compensation of Rs.1,13,000/- with interest thereon at 8%
p.a. to the appellant.
6. Grievance of the learned counsel for the appellant
is that learned Tribunal has awarded a lower compensation on
all permissible heads of compensation. He, therefore,
submitted that, by applying relevant principles, compensation
awarded by the learned Tribunal is required to be enhanced
and appeal is liable to be allowed.
7. Learned counsel appearing for the respondent
No.1 - KSRTC, per contra, submitted that compensation
awarded by the learned Tribunal is just and reasonable and
there are no grounds to entertain the compensation already
awarded and he further submits that appeal is liable to be
dismissed.
8. The aspect of negligence on the part of driver of
the offending vehicle namely, bus owned by the KSRTC and
liable to pay the compensation, is not under challenge in this
appeal.
9. It is not in dispute that appellant had met with an
accident involving the offending bus owned by KSRTC and he
suffered among others, grievous injuries of fracture of 1/3rd of
left humerus i.e., left upper arm. Appellant was working as a
coolie and he was aged 35 years at the time of accident.
PW5, who had treated the appellant has given detailed
evidence as noted in the judgment of the learned Tribunal in
internal pages 31 to 34 and he has assessed the disability of
total body permanent disability from left upper limb C+D as
15+3=18%. In support of the same and also as a basis for
such assessment the doctor has noted the limitation on the
movements of the left upper limb by way of reduction of
internal and external rotation. He has also spoken about the
implication of said restricted movement of left upper arm on
the capacity for the appellant to lift objects over head etc. and
also in normal activities; but, surprisingly the assessment of
coordinating activities as noted by the doctor includes
elements of restriction and reduction in the capacity for eating
in Indian style at 10%, combing 10% and writing 10%, when,
obviously, most Indians are right handed persons and loath to
eat or write using left hand. It is not shown in this case that
appellant was a left hander. Taking into consideration all
these aspects and the fact that for working as a coolie use of
both hands with full efficiency is required, whole body
disability is fixed at 10%.
10. Since the appellant was aged 35 years, 40% of his
established income has to be taken towards loss of future
prospects by following the decisions of Hon'ble Supreme Court
in:
(1) ERUDHAYA PRIYA V. STATE EXPRESS TRANSPORT
CORPORATION LTD. - 2020 SCC Online(SC) 601
(2) JAGADISH v. MOHAN AND OTHERS -
(2018) 4 SCC 571
(3) SANDEEP KHANUJA v. ATUL DANDE AND ANOTHER -
(2017) 3 SCC 351
Since the income of the appellant has not been established by
any definite evidence, it is useful to refer to the chart
prepared by the Karnataka State Legal Services Authority for
the year 2008 when the appellant suffered the accident and
consequential disability. Thus, his monthly income has to be
taken at Rs.4,500/-. The applicable multiplier for his age is
'16'. Accordingly, loss of future income is recomputed as
follows:
Rs.4,500 + 40% = Rs. 6,300/-
Rs.6,300/- x 12 x 16 x 10% = Rs.1,20,960/-
11. Since claimant has suffered fracture of left upper
arm, under the head of 'pain and sufferings' he is entitled to
be awarded a sum of Rs.30,000/-. For arriving at this figure,
it is required to take note of the fact that he was impatient for
16 days.
12. Towards medical expenses, as per the bills
produced appellant is entitled to be awarded a sum of
Rs.23,000/-.
13. Towards food and nourishment, a reasonable sum
of Rs.10,000/- is required to be awarded and same is hereby
awarded.
14. Towards conveyance charges, a sum of Rs.3,000/-
is the reasonable compensation and same is awarded.
15. Claimant is required to be compensated for the
loss of income during laid up period i.e., for a period of 3
months, which would be Rs.4,500/- x 3 = Rs.13,500/.
Accordingly, same is awarded under the said head.
16. Under the loss of amenities, a sum of Rs.10,000/-
is awarded as compensation by applying multiplier has been
awarded by the learned Tribunal under the head of loss of
earning capacity also (RAJ KUMAR v. AJAY KUMAR -
(2011) 1 SCC 343).
17. Thus, claimant is entitled to:
Sl. Particulars Amount
No. (Rs.)
1 Pain and Sufferings 30,000-00
2 Loss of future income 1,20,960-00
3 Medical Expenses 23,000-00
4 Food & nourishment 10,000-00
5 Conveyance charges 3,000-00
6 Loss of income during laid up period 13,500-00
7 Loss of amenities 10,000-00
TOTAL 2,10,460-00
In view of the above, claimant is entitled to total
compensation of Rs.2,10,460/-, learned Tribunal has already
awarded a sum of Rs.1,13,000/-. Therefore, claimant is
entitled for enhanced compensation of Rs.97,460/- 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 11.12.2013
passed by VIII Additional Small Causes
Judge and The Motor Accident Claims
Tribunal (SCCH-5), Bengaluru, in MVC
No.6028/2008 , is modified by awarding
an enhanced compensation of
Rs.97,460/- with interest thereon @ 6%
p.a. from the date of petition till date of
realization.
(3) Respondent No.2-insurance company
shall deposit the said enhanced
compensation within 6 weeks from the
date of receipt of certified copy of this
order.
(4) Registry shall transmit the records to the
learned Tribunal forthwith.
Sd/-
JUDGE
DR
