Karnataka High Court
Lingaraju vs Shivakumar on 5 January, 2022
Bench: Ravi V Hosmani
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
M.F.A.NO.79 OF 2019 (MV-I)
BETWEEN:
LINGARAJU
S/I BYRAIAH S.,
AGED ABOUT 31 YEARS
R/AT KAGGALAHALLI VILLAGE
HAGALAHALLI POST, KASABA HOBLI
RAMANAGARA TALUK-562 159.
...APPELLANT
[BY SRI SHANTHARAJ K., ADVOCATE (VC)]
AND:
1. SHIVAKUMAR
S/O BYRALINGAIAH
AGED MAJOR
R/AT SUGGANAHALLI VILLAGE
KASABA HOBLI
RAMANAGARA TALUK-562 159.
2. UNITED INDIA INS. CO. LTD.,
BY ITS REGIONAL MANAGER
REGIONAL OFFICE NOW SHIFTED TO
5TH AND 6TH FLOOR
KRUSHI BHAVAN, NRUPATUNGA ROAD
BENGALURU-560 001.
...RESPONDENTS
-2-
[BY SRI K.N.SRINIVASA, ADVOCATE FOR R2;
SRI A.N.KRISHNA SWAMY, ADVOCATE FOR R4
NOTICE TO R1 IS DISPENSED WITH V/O DTD.06.02.2019;
NOTICE TO R3 IS DISPENSED WITH V/O DTD.18.10.2019]
THIS M.F.A IS FILED UNDER SECTION 173(1) OF M.V.ACT
PRAYING AGAINST THE JUDGMENT AND AWARD DATED 25.09.2018
PASSED IN MVC NO.71/2010, ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE AND
MACT, RAMANAGARAM, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Challenging the judgment and award dated 25.09.2018
passed by the Principal Senior Civil Judge and CJM and MACT,
Ramanagara (hereinafter referred to as 'Tribunal' for short), in
MVC No.71/2010, this appeal is filed under Section 173 of the
Motor Vehicles Act (hereinafter referred to as 'MV Act' for
short).
2. Brief facts as stated are that in an accident that
occurred on 10.09.2009, when claimant was traveling on TVS
motorcycle bearing registration No.KA-05-HE-9062 as a pillion
rider, another motorcycle bearing registration No.KA-42-H-813
dashed against it due to rash and negligent riding by its rider,
claimant sustained grievous injuries. Despite taking treatment,
he sustained physical disability and reduction of earning
capacity. Claiming compensation for the same, he filed claim
petition against the owners and insurers of the motor vehicles.
On service of notice, respondent no.1 appeared, but did
not file objections. Respondent no.3 was placed exparte.
Respective insurers filed written statement alleged
contributory negligence against other vehicle.
3. Based on pleadings tribunal framed issues.
Thereafter claimant examined himself as PW.1 and Doctor
Raghunath R. as PW.2. Exhibits P-1 to P-10 were marked.
Respondents examined three witnesses as RW-1 to RW-3 and
got marked exhibits R-1 to R-4.
On consideration, tribunal answered the issues partly in
favour of claimant. It held that accident occurred due to
contributory negligence of both the vehicles and apportioned
ratio of contributory negligence at 50% each. It also held that
the vehicles were duly insured with insurers and policies were
valid on date of accident and that riders had valid driving
licence.
4. Tribunal determined age of claimant as 22 years,
occupation as coolie and his monthly income notionally at
Rs.7,000/- per month. Based on evidence of PW-2 - Dr.
Raghunath R., it determined physical disability at 15% and
awarded compensation of Rs.3,53,000/- with 6% interest per
annum and held respondent nos.2 and 4 liable to pay the
same at 50% each. Being not satisfied with the quantum of
compensation claimant is in appeal.
5. Sri. K. Shantharaj, learned counsel appearing for
claimant/appellant submitted that claimant was an agricultural
coolie, who sustained fracture of right femur and disability was
assessed by PW-2 - Doctor at 15% to whole body. However,
tribunal awarded a meager compensation of Rs.50,000/-
towards pain and suffering and awarded inadequate
compensation towards loss of amenities and loss of earning
during laid up period and sought for enhancement.
On the other hand, learned counsel for respondents
supported the award.
6. From the above submission, occurrence of accident
due to rash and negligent riding of motorcycles by respective
riders and claimant sustaining injuries is not in dispute.
Issuance of insurance policies and their validity as on date of
accident is also not in dispute. Tribunal assessed
compensation and held insurer is liable to pay the same.
Insurer has not challenged the same, hence, it's liability to pay
the compensation is also not in dispute. Claimant is in appeal
seeking for enhancement of compensation. Therefore, the only
point that arises for consideration is
"whether the claimant is entitled for
enhancement of compensation as sought for".
In order to establish injuries, disability and loss of
earning capacity, claimant produced wound certificate,
discharge summary, medical bills and prescriptions, X-ray and
disability certificate as Exs.P.5 to P.10 respectively. He also
examined Dr. Raghunath R. as PW-2. As per evidence of PW-2
and referring to contents of Ex.P.5, claimant sustained
fracture of shaft of right femur. Tribunal awarded Rs.50,000/-
towards pain and suffering. Though fracture is mal-united,
compensation awarded towards pain and suffering is
adequate. Hence, no interference is called for.
7. As per evidence of PW-2, fracture is mal-united and
there is limitation of flexion of right hip joint and right knee
joint. He assessed disability at 15% to whole body. However
tribunal has awarded Rs.15,000/- towards loss of amenities is
inadequate. It would be just and proper to enhanced it to
Rs.40,000/-. Further, Tribunal assessed his monthly income at
Rs.7,000/- and awarded Rs.7,000/- towards loss of income
during period of treatment. Normally, fractures require three
months to heal. Therefore, award of Rs.7,000/- would not be
proper. It would be appropriate to award Rs.21,000/-.
Considering duration of inpatient treatment for five days, the
same appears to be just and proper. Tribunal has also
awarded a sum of Rs.2,26,800/- towards future loss of income
and Rs.52,800/- towards medical expenses and other
incidental expenses against bills produced, which appears to
be just and proper and do not call for enhancement. Hence,
total compensation would be :
Loss of future income Rs.2,26,800
Pain and suffering Rs.50,000
Loss of amenities Rs.40,000
Medical expenses and other Rs.52,800
incidental charges
Loss of earning during laid Rs.21,000
up period
Attendant charges Rs.2,000
Total Rs.3,92,600
Point for consideration is answered partly in affirmative.
Hence the following:
ORDER
1. Appeal is allowed in part with costs.
2. There is enhancement of compensation by
Rs.39,000/-. The claimant would be entitled to
interest at 6% per annum on the same from date of
petition till deposit.
3. Insurers are directed to deposit enhanced
compensation within a period of six weeks to the
extent of their respective liability.
4. Since the enhanced compensation is marginal
entire enhanced amount is ordered to be released.
Sd/-
JUDGE
BVK
