Ningaraju vs Mahadeva K M
2022 Latest Caselaw 10609 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 11TH DAY OF JULY, 2022

                         BEFORE

     THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

 MISCELLANEOUS FIRST APPEAL NO.7078/2017 (MV-I)

BETWEEN:

NINGARAJU
S/O LATE NINGEGOWDA @
DODDABAKREGOWDA
AGED ABOUT 56 YEARS
BALLAPATTANA VILLAGE
VIRUPAKSHIPURA HOBLI
CHANNAPATTANA TALUK
RAMANAGARA DISTRICT                          ...APPELLANT
(BY SRI RAJU S, ADVOCATE )

AND:

1.      MAHADEVA K.M.
        S/O MADEGOWDA
        R/AT KODAMBALLI VILLAGE
        VIRUPAKSHIPURA HOBLI
        CHANNAPATTANA TALUK
        RAMANAGARA DISTRICT - 572 159

2.      THE NATIONAL INSURANCE
        COMPANY LIMITED
        REGIONAL MANAGER (LEGAL MANAGER)
        NO.144, SHUBHARAM COMPLEX
        M.G.ROAD, BENGALURU - 560 001    ...RESPONDENTS
(BY SMT.BHARATHI, ADVOCATE FOR
    SRI.VENKATESH R BHAGATTI, ADVOCATE FOR R2;
    NOTICE TO R1 IS DISPENSED WITH)

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
21.04.2017 PASSED IN MVC NO.53/2013 ON THE FILE OF THE
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SENIOR  CIVIL  JUDGE  AND    J.M.F.C., ADDL.   MACT,
CHANNAPATTANA, RAMANAGARA DISTRICT, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

      THIS M.F.A. COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal is filed under Section 173(1) of the Motor

Vehicles Act, 1988, (hereinafter referred to as 'MV Act' for

brevity) by the appellant-claimant challenging the

judgment and award dated 21.04.2017, passed in MVC

No.53/2013, on the file of Senior Civil Judge & J.M.F.C &

Addl., MACT, Channapattana, (hereinafter referred to as

'the Tribunal' for brevity) for seeking enhancement of

compensation.

Brief facts:

2. That on 13.01.2013 at about 11.00 p.m. when

the appellant was going as pillion rider in Hero Honda

Motor Cycle bearing No.KA-42-L-5852. When they reached

near Sri. Manteswamy Temple the appellant asked the

rider of the motor cycle to stop the vehicle to attend

nature call for which the rider has stopped the vehicle and

when the appellant was getting down from the said motor

cycle, the rider of the said motor cycle drove the same in

rash and negligent manner as a result of which he fell

down and sustained grievous injuries. He took treatment

at hospital and has spent lot of money for his treatment.

3. Hence, a claim petition was filed by the

appellant-claimant under Section-166 of the M.V. Act,

claiming compensation. The deceased was a coolie worker

and earning Rs.6,000/- per month. The appellant is

suffering from discomfort and disability. The Tribunal on

appreciating the materials on record, allowed the petition

in part and awarded a compensation of Rs.85,000/-, along

with interest at 6% per annum from the date of petition till

the date of deposit. The Tribunal held respondent Nos.2

and 3 therein, jointly and severally liable to pay the

compensation.

4. Sri S.Raju, learned counsel appearing for the

appellant-claimant submitted that the amount of

compensation awarded by the Tribunal is meager one

considering the nature of injuries. Therefore, prays to

enhance the compensation on various heads.

5. On the other hand, Smt.Bharathi, learned

counsel appearing for respondent No.2 - Insurance

company vehemently argued that considering the nature

of injuries sustained, the amount of compensation awarded

under each of the heads is exorbitant. However, she

submitted that there is no good ground to allow the appeal

for enhancement. Further, she submitted that the Tribunal

has not awarded any compensation under the head 'loss of

earning capacity' due to disability. Even the doctor is not

examined and the disability certificate is also not

produced. Therefore, whatever the amount is awarded

under 'loss of amenities' and other heads is proper and

sufficient. Hence, there is no need to enhance the

compensation amount. Therefore, prays to dismiss the

appeal.

6. The compensation awarded by the Tribunal

under various heads are as follows:

1 Towards Pain and Sufferings : Rs. 30,000/- 2 Towards Loss of amenities & : Rs. 20,000/-

Happiness 3 Towards Medical and incidental : Rs. 25,000/-

charges

4 Towards Loss of earnings during : Rs. 10,000/-

laid up period TOTAL : Rs. 85,000/-

7. Heard the learned counsels and perused the

material on record.

8. Ex.P.6 the wound certificate and Ex.P7 the

discharge summary prove the fact that the appellant had

sustained following injuries:

"The petitioner has sustained injuries ie., abrasion on left side of cheek 3 c.m. X 0.2 c.m., abrasion on right forearm 3 c.m. X 6 c.m., which are described as simple in nature and swelling on left forearm, tenderness present which is described as grievous in nature resulting in post-traumatic fracture distral 1/3rd left ulna for which he was treated at KIMS Hospital, Bengaluru."

9. Therefore the appellant had suffered fracture

of left ulna which was grievous in nature. The

compensation amount awarded under the head of 'Pain

and Suffering' at about Rs.30,000/- by the Tribunal is

appropriate. The Tribunal awarded compensation of

Rs.25,000/- towards 'Medical and incidental charges'. It is

stated that the appellant had spent more than Rs.25,000/-

towards medical expenses and hospital charges. Apart

from the medical expenses and hospitalization charges, the

compensation awarded under incidental charges is meager

one. Therefore under the incidental charges like

conveyance, food and nourishment etc., another sum of

Rs.15,000/- is to be awarded.

10. The Tribunal had considered 'notional income'

of only Rs.5,000/- per month and awarded compensation

of Rs.10,000/- under the head of 'loss of earning during

the laid-up period'. The accident has occurred in the

year 2013 and the 'notional income' is to be considered at

Rs.8,000/- as recognized by 'Karnataka State Legal

Services Authority'. The appellant is a coolie worker and

certain fractures caused to his left forearm constrained the

appellant not to do coolie work for the period of three

months for which he lost the income. Therefore, it is

suitable to be compensated. Accordingly compensation of

Rs.24,000/-(8000 X 3 months) is to be awarded under the

head of 'loss of earning during laid up period'.

11. Further the Tribunal had awarded

compensation of only Rs.20,000/- towards 'loss of

amenities and happiness' which is found to be meager one.

The appellant had not examined the doctor and also he has

not produced disability certificate. Otherwise, he would

have been entitled to the compensation under the head

'loss of future income'. Therefore, considering the factors

that the appellant is a coolie worker, who had suffered

fracture to the left hand, certainly he must be facing

inconvenience like mental agony etc., Accordingly,

compensation of Rs.40,000/- is awarded under the head of

'loss of amenities'.

12. Therefore, the appellant is entitled to the

enhanced compensation as follows:

1 Towards Pain and Sufferings : Rs. 30,000/- 2 Towards Loss of amenities & : Rs. 40,000/-

Happiness 3 Towards Medical and incidental : Rs. 40,000/-

charges 4 Towards Loss of earnings during : Rs. 24,000/-

laid up period ( Rs.8000/- x 3 months = Rs.24,000/-)

TOTAL : Rs. 1,34,000/-

13. The appellant-claimant is entitled for a total

enhanced compensation of Rs.1,34,000/- as against

Rs.85,000/- awarded by the Tribunal. Hence, the appellant

is entitled for an additional Compensation of Rs.49,000/-

(Rs.1,34,000 - Rs.85,000), along with interest at the

rate of 6% per annum from the date of petition till the

date of realization.

14. Accordingly, I pass the following

ORDER

i. Appeal is allowed in part.

ii. The judgment and award dated 21.04.2017, passed

in MVC No.53/2013, on the file of Senior Civil Judge

& J.M.F.C & Addl., MACT, Channapattana is modified

to the above extent.

iii. The appellants are entitled to an enhanced

compensation of Rs.49,000/- (Rs.1,34,000 -

Rs.85,000), along with interest at the rate of 6%

per annum from the date of petition till the date of

realization, in addition to what has been awarded by

the Tribunal.

iv. The entire amount shall be released in favour of the

appellant/claimant along with interest to the account

of claimant.

v. Registry is directed to return the Trial Court Records

to the Tribunal, along with certified copy of the order

passed by this Court forthwith without any delay.

vi. Draw award accordingly.

Sd/-

JUDGE PKN