Karnataka High Court
Elumale vs Madhu Kumar on 7 July, 2022
Bench: Anant Ramanath Hegde
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
M.F.A.NO.11920 OF 2011 (MV-I)
BETWEEN:
ELUMALE,
AGED ABOUT 27 YEARS,
LORRY CLEANER,
S/O ARMUGAM,
R/O SULEBYLU,
SHIVAMOGGA TQ & DIST - 577201. ...APPELLANT
(BY SRI RAVINDRANATH, ADV.)
AND:
1. MADHU KUMAR,
S/O GOVINDA RAJU,
AGE:MAJOR,DRIVER OF TIPPER LORRY
BEARING NO.KA-14/A-2789,
RDL NO.2006-07
VALID UPTO 30-3-2008 TO 23-3-2011
R/O INDIRA NAGAR, SULEBYLU,
SHIVAMOGGA - 577201.
2. MAKMOOR,
S/O NAWABJAN,
AGED ABOUT 42 YEARS,
OWNER OF THE TIPPER LORRY
BEARING NO. KA-14/A-2789,
R/O SULEBYLU,7TH CROSS,
URGADOOR (P)
SHIMOGAA - 577201.
3. THE NEW ASSURANCE CO.LTD.,
BRANCH OFFICE, III CROSS, NEHRU ROAD,
2
SHIVAMOGGA - 577201,
POLICY NO.670601/31/L08/01/00001950
VALID FROM 19-7-08 TO 18-7-09577201.
...RESPONDENTS
(BY SMT.GEETHARAJ, ADV. FOR R3,
R1 AND R2 ARE SERVED)
-----
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 17.03.2011 PASSED IN MVC
NO.932/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-III, ADDITIONAL MACT-IV, SHIVAMOGGA,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed by the claimant seeking
enhancement of compensation challenging the judgment
and award dated 17.03.2011 in MVC No.932/2009 passed
by the Fast Track-III and Additional MACT-IV,
Shivamogga.
2. For the sake of convenience, parties are
referred to as per their rank before the Tribunal.
3. Heard the learned advocate for the appellant
and the learned advocate for respondent No.3. Though
notice was served on respondent No.1/driver and
respondent No.2/owner of the vehicle, both are
unrepresented.
4. There is no dispute over the fact that the
accident took place on 15.04.2009 at midnight, about 1
K.M., from Thyagarthi Village, Sagar Taluk. Claimant was
injured in the said accident. He suffered grievous injuries
and fracture of both bones of the right leg i.e. tibia and
fibula. At the time of the accident, the claimant was aged
25 years. The claimant has undergone surgery and took
treatment as an inpatient for a period from 20.04.2009 to
28.04.2009. The doctor/PW-2 assessed the disability to an
extent of 20.8% to both bones and disability to an extent
of 6.7% to the whole body. The Tribunal has taken the
disability while calculating the award of compensation by
applying the principle of the Workmen's Compensation Act,
1923. The Tribunal has awarded compensation of
Rs.39,043/- against the insurer and Rs.97,267/- against
the owner and driver of the lorry involved in the accident
as under:-
Sl. Heads Amount
No.
1 Pain and suffering Rs.40,000/-
2 Medical expenses Rs.25,267/-
3 Future medical expenses Rs.10,000/-
3 Food, diet & conveyance Rs.3,000/-
charges
4 Loss of amenities Rs.10,000/-
5 Loss of income during the Rs.9,000/-
laid-up period
6 Loss of future income Rs.39,043/-
(5000X6.9%X12X18)
Total Rs.1,36,310/-
5. The appellant being aggrieved has preferred
this appeal-seeking enhancement.
6. Learned advocate for the appellant would
submit that the insurance policy issued by the insurer
covers the liability under the Motor Vehicles Act, 1988 and
the compensation awarded under the head of the
Workmen's Compensation Act is incorrect, the
compensation should be assessed under the provision of
the Motor Vehicles Act.
7. The policy in question was marked as Ex.R.1.
The policy did not indicate the premium breakup. Learned
advocate for respondent No.3/insurer on instructions
submits that premium collected by the insurance company
would indicate that the insured covered higher risk. Under
the circumstances, the compensation is to be assessed
under the provisions of the Motor Vehicles Act, 1988.
8. In that view of the matter, this Court has
undertaken the exercise of determining the compensation
payable to the claimant under the provisions of Motor
Vehicles Act 1988.
9. The accident took place on 15.04.2009. The
claimant was aged 25 years. The claimant sustained a
fracture of both bones of his right leg and he was an
inpatient for 9 days. As noticed earlier the disability to an
extent of 20.8% to both the bones and disability is 6.9%
to the whole body.
10. The Tribunal has noticed that the claimant was
a cleaner earning Rs.1800/- per month under the
Workman's Compensation Act. In the absence of proof
relating to the income, as per the chart prepared by the
Karnataka State Legal Services Authority, notional income
should be taken at Rs.5000/- for the accident of the year
2009 and at the time of the accident, the claimant was
aged 25 years. Under the circumstance, this Court is of
opinion that the income of the claimant is to be taken at
Rs.5,000/- per month. Therefore, the claimant is entitled
to enhancement of compensation under the head of loss of
earnings. Under the said head the compensation would be
Rs.5000X6.9%X12X18=74,520/- as against Rs.39,043/-
awarded by the Tribunal.
11. It is forthcoming from the records that the
claimant was inpatient for 9 days and also considering the
nature of the injuries suffered by the claimant,
compensation of Rs.40,000/- awarded under the head
'pain and suffering' is on the lower side. This Court is of
opinion that the claimant is entitled to compensation of
Rs.65,000/- under the said head.
12. The Tribunal has awarded compensation of
Rs.25,267/- under the head of the medical expenses and
the compensation of Rs.10,000/- under the head 'future
medical expenses' which are just and proper and do not
require any modification and their is no scope for
enhancement.
13. The Tribunal has awarded Rs.3,000/- under
the head of food, nourishment, conveyance and other
incidental expenses. Considering the nature of the injuries
sustained by the claimant and that he has taken treatment
as an inpatient for 9 days, compensation of Rs.10,000/- is
awarded under the head said head.
14. The claimant has taken treatment as an
inpatient for 9 days. The Tribunal has awarded Rs.9,000/-
towards income during the laid-up period. Considering the
nature of the injuries and also disability suffered by the
claimant, This Court is of opinion that compensation of
Rs.15,000/- be awarded under the head of loss of earning
during the laid-up period.
15. The Tribunal has awarded Rs.10,000/- under
the head of loss of amenities. On considering the nature
of injuries and disability sustained by the claimant and also
because the claimant has taken treatment as inpatient for
9 days, this Court is of the view that the compensation of
Rs.20,000/- is awarded under the head of loss of
amenities.
16. The claimant is entitled to enhanced
compensation as under:-
Sl.No. Heads Amount
1 Pain and suffering Rs.65,000/-
2 Medical expenses Rs.25,267/-
3 Future medical expenses Rs.10,000/-
3 Food, diet & conveyance Rs.10,000/-
charges
4 Loss of amenities Rs.20,000/-
5 Loss of income during the Rs.15,000/-
laid up period
6 Loss of future income Rs.74,520/-
(5000X6.9%X12X18)
Total Rs.2,19,787/-
Less the amount awarded Rs.1,36,310/-
by the Tribunal
Enhanced compensation Rs.83,477/-
17. Hence, the following:-
ORDER
(i) Appeal is allowed in part. The impugned judgment
and award dated 17.03.2011 passed by the Fast Track-III
and Additional MACT-IV, Shivamogga in MVC
No.932/2009 is modified.
(ii) The appellant/claimant is entitled to
compensation of Rs.83,477/- along with interest @ 6%
p.a. from the date of the petition till realisation.
(iii) The respondent/insurance company shall deposit
the amount after deducting the amount, if any,
already paid.
(iv) In all other aspects, the award of the Tribunal is
undisturbed.
Sd/-
JUDGE
HD
