Karnataka High Court

Sri. Jayanna vs Sri. Darshan M G on 4 January, 2022

Bench: Ravi V Hosmani

        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 4TH DAY OF JANUARY, 2022

                            BEFORE

         THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                 M.F.A.NO.589 OF 2019 (MV-I)

BETWEEN:

SRI JAYANNA
S/O BASAVEGOWDA
AGED ABOUT 37 YEARS
R/AT SOMANAHALLI VILLAGE
DUDDA HOBLI
HASSAN TALUK & DISTRICT-573 201.
                                                ...APPELLANT

[BY SRI H.J.ANANDA, ADVOCATE]


AND:

1.     SRI DARSHAN M.G.
       S/O GANGADHARA
       AGED ABOUT 27 YEARS
       R/O NITTURU VILLAGE, SALAGAME HOBLI
       HASSAN TALUK & DISTRICT-573 201.

2.     MANAGER
       SHRI RAMA GENERAL INSURANCE
       COMPANY LIMITED, I-8, EPIP, RIICO
       SEETHAPURA, JAIPURA
       RAJASTHAN-302 022.

       REP. BY ITS LEGAL MANAGER
       SHRI RAMA GENERAL INSURANCE
                                2




     COMPANY LIMITED, HOSPITAL ROAD,
     OPP. BOWRING HOSPITAL
     SHIVAJINAGARA, BENGALURU-560 001.
                                                ...RESPONDENTS

[BY SRI. B.C.SHIVANNE GOWDA, ADVOCATE FOR R2;
    R1 SERVED AND UNREPRESENTED]

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF M.V.ACT
PRAYING AGAINST THE JUDGMENT AND AWARD DATED 10.08.2018
PASSED IN MVC NO.1060/2017, ON THE FILE OF THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL
MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND     SEEKING    ENHANCEMENT      OF
COMPENSATION.

    THIS APPEAL COMING ON FOR FURTHER ORDERS THIS DAY,
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

Challenging judgment and award dated 10.08.2018

passed by II Additional District and Sessions Court and

Additional MACT at Hassan (hereinafter referred to as 'tribunal'

for short) in MVC No.1060/2017, this appeal is filed by

claimant.

2. Brief facts as stated are that on 16.11.2016,

claimant-Jayanna was riding his motorcycle bearing

registration no.KA-13-L-516 on Nittur Road, Hassan, when

driver of Tempo Trax bearing registration no.KA-13-B.0168

drove it in rash and negligent manner and dashed against

motorcycle. Due to said accident, claimant sustained grievous

injuries and was admitted to hospital. Despite taking

treatment, he did not recover fully and sustained reduction of

earning capacity. Claiming compensation for the same, he filed

claim petition under Section 166 of Motor Vehicles Act ('MV

Act' for short) against owner and insurer of Tempo Trax.

3. On service of notice, respondent no.1 owner filed

objections denying the age, occupation income and disability

sustained by claimant apart from denying negligence in

causing accident. It was stated that vehicle was insured with

respondent no.2 insurer and policy was valid as on date of

accident and award if any be passed against respondent no.2.

Respondent no.2 - insurer also denied entire claim petition

averments in toto. Issuance of policy was admitted subject to

terms and conditions. It was alleged that driver of insured

vehicle did not have valid driving licence and therefore there

was violation of terms of policy. Claim petition was also

opposed as being exorbitant.

4. Based on pleading tribunal framed following issues:

1. Whether the petitioner proves that, petitioner sustained grievous injury on 16.11.2016 at about 7.00 p.m., near Somanahally Muthathi Koppalu Gate, Hassan-Nittur Road, it was due to the rash and negligent driving by the driver of Tempo Trax bearing No.KA-13-B-0168?

2. Whether the petitioner is entitled for compensation? If so, from whom?

3. What order or award?

5. In order to establish his case, claimant got

examined as PW-1. He also examined Dr. H.S. Ravi as PW-2.

Exhibits P.1 to P.18 were marked. Respondents did not lead

evidence.

6. On consideration, tribunal answered issue no.1 in

affirmative, issue no.2 partly in affirmative and issue no.3 by

awarding compensation of Rs.2,00,000/- with interest at 6%

per annum and directed respondent no.2 insurer to pay the

same. Not satisfied with quantum of compensation, claimant is

in appeal.

7. Sri. H.J. Ananda, learned counsel for claimant

appellant submitted that as on date of accident, claimant was

34 years of age and earning more than Rs.20,000/- per month

from agriculture and milk vending. He sustained fracture of

talus, apart from pain, swelling and deformity of right foot. He

also sustained tendon injury. However, tribunal considered his

monthly income at a meager amount of Rs.8,000/- per month

which was inadequate. Learned counsel further submitted that

as per PW-2, claimant had sustained physical disability to an

extent of 25% in respect of right lower limb. But tribunal

considered only 8% towards loss of earning capacity. Learned

counsel further submitted that even award towards loss of

income during period of treatment was inadequate.

8. On the other hand Sri. B.C. Shivanne Gowda,

learned counsel for respondent - insurer supported the award

and opposed enhancement. It was submitted that claimant did

not substantiate extent of his income or its reduction due to

injury sustained in accident. It was submitted that on an

overall consideration award of Rs.2,00,000/- for fracture of

talus bone was more than sufficient and there was no

justification for interference.

9. From the above submission occurrence of accident

due to rash and negligent driving of Tempo Trax by its driver

and claimant sustaining injuries in the said accident is not in

dispute. Issuance of insurance policy and its validity as on

date of accident, as well as liability of insurer under the same

is not in dispute. Insurer has not challenged the award. Only

claimant is in appeal seeking enhancement towards future loss

of income on the ground of higher monthly income and

disability and also towards loss of income during laid up

period. Hence, point that arises for consideration is:

"Whether claimant is entitled for enhancement of compensation as sought for?"

10. In order to establish injuries, disability and loss of

earning, claimant has produced wound certificate OPD Books,

Medical Bills, Prescriptions, X-rays and Case sheets marked as

P.3, P.10, P.13 to P.18 respectively. Referring to Ex.P.3 -

Wound certificate, tribunal has observed that claimant has

sustained five injuries of which two are grievous in nature.

Claimant has also examined Dr. H.S. Ravi as PW-2. He

deposed that by referring to treatment records and on

examination of claimant, he determined claimant has suffering

from disability to an extent of 25% in respect of right lower

limb. However, PW-2 has not stated about mal-union or basis

for assessment of disability. Tribunal has considered loss of

earning capacity at 8%. Claimant has stated that he was

working as agriculturist and also doing milk vending. Though

he produced certificate issued Milk Producer's Society and also

record of rights, it appears he was assisting his father.

Therefore, his income has to be assessed notionally. Accident

occurred on 16.11.2016. Notional income for the said period is

Rs.9,500/-. But tribunal has taken it at Rs.8,000/- which calls

for interference. Referring to age mentioned in medical recor,

tribunal determined age of claimant as 34 year; proper

multiplier applicable would be '16'. Thus, future loss of income

would be :

Rs.9,500/- x 8% x 12 x 16 = Rs.1,45,920/-

11. Tribunal has awarded sum of Rs.30,000/- towards

pain and suffering. As claimant sustained one fracture, same is

justified. Tribunal has awarded Rs.37,950/- as medical

expenses towards full reimbursement of amount for which bills

were produced. Therefore, there is no scope of enhancement.

Tribunal awarded Rs.3,450/- towards loss of income during

treatment. As fractures normally requires about two months to

heal, said award would not be justified. Hence, claimant is

awarded Rs.19,000/- instead (i.e. Rs.9,500/- x 2). Tribunal

has also awarded Rs.2,000/- towards conveyance and

Rs.3,700/- towards nourishment charges. As claimant took

inpatient treatment for four days, same would be justified.

Thus, claimant would be entitled to total compensation of

Rs.2,38,570/-. Point for consideration is answered partly in

affirmative.

Hence, this order:

ORDER

1. Appeal is allowed in part with cost.

2. Claimant is held entitled for enhanced compensation of Rs.2,38,570/- as against Rs.2,00,000/- awarded by tribunal, with interest at 6% per annum from date of petition till deposit.