Karnataka High Court

Sri Sai Prathap vs Sri Venukumar on 12 July, 2022

Bench: J.M.Khazi

                             1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 12TH DAY OF JULY, 2022

                           BEFORE

             THE HON'BLE MS.JUSTICE J.M.KHAZI

              M.F.A. CROB.NO.57/2012 (MV)
BETWEEN:

SRI SAI PRATHAP
S/O V VENKAT SUBBAIAH,
AGED ABOUT 29 YEARS,
R/AT. MALLAPALLI,
CHINNAMANDEM VILLAGE,
RAYACHOTI TQ.,
CUDDAPAH DISTRICT,
ANDRA PRADESH - 516 001.

                                        ...CROSS OBJECTOR
(BY SMT. SUGUNA R.REDDY, ADVOCATE)
AND:

1.     SRI VENUKUMAR
       S/O NARAYANAPPA,
       MAJOR IN AGE,
       R/A. TAVAREKERE,
       HOSKOTE TQ,
       BENGALURU RURAL DIST-203

2.     THE MANAGER,
       SRI RAM GENERAL INSURANCE CO. LTD.,
       INDIRA TOWERS, 4TH FLOOR,
       11TH CROSS, WILSON GARDEN,
       BENGALURU - 27
                                        ...RESPONDENTS
(BY SRI. H.N.KESHAVA PRASHANTH, ADVOCATE FOR R2;
    R1 SERVED & UNREPRESENTED)
                                 2


     THIS MFA CROB IS FILED UNDER ORDER 41 RULE 23 R/W
SECTION 151 OF CPC PRAYING TO MODIFY THE JUDGMENT AND
AWARD    DATED   28.12.2010   AND  TO   ENHANCE    THE
COMPENSATION TO Rs.18,00,000/- FROM Rs.4,35,000/- AS
AWARDED BY THE CLAIMS TRIBUNAL AND TO DIRECT PAYMENT
OF INTEREST AT THE RATE OF 12% P.A. ON THE AWARD
AMOUNT AND TO GRANT SUCH OTHER RELIEF'S AS THIS
HON'BLE COURT MAY DEEM FIT TO GRANT UNDER THE
CICUMSTANCES TO MEET THE ENDS OF JUSTICE.
     THIS MFA CROB HAVING BEEN HEARD AND RESERVED ON
22.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This is claimant's appeal by way of cross-objections under

Order 41 Rule 23 r/w Section 151 CPC, filed against the

judgment and award in MVC.4876/2009, whereby the Tribunal

has granted compensation in a sum of Rs.4,35,000/- with

interest at 6% p.a. and directed respondent No.2 - Insurance

company to deposit the same.

2. For the sake of convenience the parties are referred

to by their rank before the Tribunal.

3. FACTS: Brief facts leading to the filing of the claim

petition under Section 166 of the MV Act, are that petitioner was

working as a driver. On 05.06.2009, he was engaged by one B.

Venkatesh to transport vegetables from Chinna Mandem village

of Cuddapah District, Andhra Pradesh to Bengaluru. Accordingly,

he transported vegetables in his goods vehicle -TATA Ace

bearing registration No.AP-04-W-7291 (hereinafter referred to as

'TATA Ace'). He unloaded the vegetables at Bengaluru. Again

vegetables purchased by said B.Venkatesh at Bengaluru were

loaded and they were returning to Raya Choti. On 06.06.2009,

while they were passing via Kolar-Bengaluru route at 11.00 am.,

near Kendhatti on NH-4 a lorry bearing registration No.AP-03-V-

5620 (hereinafter referred to as offending vehicle), came from

opposite side i.e., plying from Kolar towards Bengaluru, driven

by its driver in a high speed, in a rash or negligent manner and

dashed against the Tata Ace of the petitioner.

3.1 In the said accident, petitioner sustained grievous

injuries. B.Venkatesh who had hired the vehicle was also injured.

In respect of the said accident, case was registered in Crime

No.182/2009 against the driver of the offending vehicle. Inspite

of prolonged treatment, petitioner is not completely cured. He is

unable to work as he used to and is suffering from loss of

income. As the owner and insurer of the offending vehicle, both

respondents are jointly and severally are liable to pay the

compensation.

4. Before the Tribunal, respondent No.1 remained

Ex-parte.

5. Respondent No.2 filed written statement admitting

the coverage of the offending vehicle, however, its liability is

subject to the terms and conditions of the policy. Since at the

time of alleged accident, the driver of the offending vehicle was

not possessing a valid driving license, respondent No.2 is not

liable to pay the compensation. The petition is bad for non-

joinder of owner and insurer of TATA Ace.

6. Respondent No.2 has denied the age, occupation,

income of the petitioner, the nature of the injury sustained and

also the treatment taken. It has also denied that on account of

accidental injuries, the petitioner has suffered permanent partial

disability and he is unable to work as he used to and thereby

suffering loss of income.

7. It is pertinent to note that arising out of the same

accident, one more petition in MVC No.4877/2009 was filed by

B.Venkatesh, owner of TATA Ace, in which vegetables were

transported. A common enquiry is conducted by the Tribunal.

8. In support of his case, petitioner examined himself

as PW-1 and Doctor as PW-3. He got marked Exs.P-1 to 8 and

13 to 15.

9. Respondent No.2 has not led any oral and

documentary evidence on its behalf.

10. Vide the impugned judgment and award, the

Tribunal has partly allowed the claim petition granting

compensation in a sum of Rs.4,35,000/- with interest at 6% p.a

as detailed below:

                     Heads                           Amount
                                                      In Rs.
      Pain and sufferings                                60,000
      Medical expenses                                   30,000
      Loss of amenities and future                       50,000
      happiness
      Loss of future earning                           2,55,000
      Loss of earning during                             15,000
      treatment period
      Towards Conveyance,                               25,000
      Attendant and nourishment
      TOTAL                                           4,35,000

11. During the course of arguments, the learned counsel

representing the petitioner submitted that the impugned

judgment and award is contrary to law and suffers from error

apparent on the face of the record and violative of the provisions

of Sections 166 and 163-A of the MV Act. The compensation

awarded under all the heads is on the lower side. The Tribunal

has not appreciated the fact that petitioner has sustained 100%

disability and prays to allow the appeal and enhance the

compensation.

12. On the other hand, learned counsel representing

respondent No.2 submitted that the appeal filed by respondent

No.2 in MFA.No.5603/2011, challenging the impugned judgment

and award is dismissed and thereby confirming the order of the

Tribunal and there is no scope for interference and prays to

dismiss the appeal.

13. Heard arguments and perused the record.

14. It is relevant to note that the impugned judgment

and award is dated 22.12.2010 and petitioner has filed this

appeal on 04.06.2012. However, petitioner has not chosen to

file application for condonation of delay. It is also relevant to

note that challenging the grant of compensation to the petitioner

respondent No.3 filed MFA.No.5603/2011 and

Misc.CVL.No.13655/2011 for condonation of delay, By order

dated 06.07.2012, the said appeal came to be disposed of at the

stage of preliminary hearing without notice to the petitioner. The

appeal filed by respondent No.2 came to be dismissed and

thereby confirming the impugned judgment and award.

15. Regarding the delay the learned counsel for

petitioner has made a submission that as the appeal filed by

respondent No.2 came to be disposed of without notice to him

and he came to know about the said appeal in Execution Petition

filed by him and he got the information regarding the appeal

filed by respondent No.2 on 25.05.2012 through the internet and

from the date of knowledge, the appeal is in time.

16. Now coming to the merits of the appeal filed by the

petitioner for enhancement. Since the appeal filed by respondent

No.2 with regard to the question of injuries being caused to the

petitioner due to the rash or negligent driving of the offending

vehicle and liability of respondent No.2 to indemnify the insured

has attained finality and the same need not be once again gone

into. Therefore, now the only question which is required to be

determined is whether the compensation granted is reasonable

and adequate having regard to the nature of the injury sustained

by the petitioner under the following heads.

17. Pain and suffering: As evident from the documents

placed on record at Ex.P3 and 6, petitioner has sustained the

following injuries and was in-patient for 9 days:

"(i) Open Type III-B fracture of Right femur mid 1/3rd

(ii) Open Type III-B fracture of 2nd metatarsal shaft

(iii) Open dislocation of Metatarsal joint

(iv) Closed fracture of right patella and

(v) Closed undisplaced intra articular fracture of left radius."

18. The evidence of PW-3 Dr.P.V.Manohar establish the

fact that petitioner has undergone surgery with K-wire fixation

and other procedures. At the time of accident, petitioner was

aged 27 years and was working as a driver. Taking into

consideration these aspects, the Tribunal has granted

compensation in a sum of Rs.60,000/- under the head pain and

suffering and having regard to the fact that the accident is of the

year 2009, I hold that the same is adequate and reasonable and

there is no scope for interference.

19. Medical expenses: The petitioner has produced

medical bills for a sum of Rs.26,332.72 Ps. Taking into

consideration the period of treatment, the Tribunal has rightly

granted compensation in a sum of Rs.30,000/- under this head

and I hold that there is no scope for interference under this head

also.

20. Conveyance, nourishment, diet and incidental

charges: Though suffered 5 injuries as detailed in the wound

certificate at Ex.P3, the petitioner was in-patient for only 9 days.

Of course having suffered fractures, as held by the Tribunal it

would be reasonable to expect that he was under treatment at

least for a period of 3 months. Having regard to these aspects,

the Tribunal has granted compensation in a sum of Rs.25,000/-

under this head and I find no reasons to interfere with the same.

21. Loss of amenities: Taking into consideration the

nature of the injury sustained, period of treatment and the fact

that petitioner has suffered permanent partial disability, the

compensation granted in a sum of Rs.50,000/- under this head is

quite reasonable and sufficient, especially having regard to the

fact that the accident is of the year 2009 and I find no reason to

interfere with the same.

22. Loss of income during laid up period: As discussed

earlier, the Tribunal has rightly held that petitioner was under

treatment for a period of 3 months and during this period, he

was not able to work. Though the petitioner has claimed that he

was earning Rs.6,000/-p.m apart from daily batta of Rs.75/-, he

has not produced any documentary evidence except his

interested testimony. In the absence of the same, the Tribunal

has rightly taken the notional income at Rs.5,000/-p.m. At this

rate for a period of three months, the Tribunal has granted

compensation in a sum of Rs.15,000/- and there is no scope for

interference with the same.

23. Loss of income on account of permanent partial

disability: During the course of his evidence, PW-3

Dr.P.V.Manohar has deposed about the injury sustained by the

petitioner and the treatment given. He has also calculated the

disability sustained by the petitioner as 60% of right lower limb

and 15% to the left lower limb i.e., in all 75% and it comes to

25% so far as whole body disability is concerned. Since at the

time of accident, the petitioner was aged 27 years, the multiplier

17 taken by the Tribunal is correct. With these components, the

Tribunal has calculated the compensation at Rs.2,55,000/-.

22.1 However, the Tribunal has not taken into

consideration the loss of future prospects. As per the decision of

Hon'ble Supreme Court in Magma General Insurance Co.Ltd,

and Erudayapriya Vs. State Express Transport Corporation

2020 ACJ 2159 dated 27.07.2020 cases, even in case of

permanent partial disability for calculating compensation under

the head loss of income, loss of future prospects is required to

be added. Since at the time of accident, petitioner was aged 27

years i.e., less than 40 years and was in a private employment,

40% of his income is required to be added towards loss of future

prospects. 40% of Rs.5,000/- is Rs.2,000/-. Therefore, the

notional income for calculating loss of income on account of

disability is 7,000 x 12 x 17 x 25% = Rs.3,57,000/- as against

Rs.2,55,000/- granted by the Tribunal.

24. Thus, in all petitioner is entitled for compensation in

a sum of Rs.5,37,000/- as against Rs.4,35,000/- granted by the

Tribunal as detailed below:

                    Heads             Amount granted        Amount granted
                                      by the Tribunal        by this Court
                                           In Rs.               In Rs.
      Pain and sufferings                        60,000               60,000
      Medical expenses                             30,000               30,000
      Loss of amenities and future                 50,000               50,000
      happiness
      Loss of future earning                  2,55,000             3,57,000
      Loss of earning during                    15,000               15,000
      treatment period
      Towards Conveyance,                          25,000               25,000
      Attendant and nourishment
      TOTAL                                  4,35,000             5,37,000

25. Of course the petitioner is entitled for interest at the

rate of 6% on the enhanced amount. To this extent, appeal filed

by the petitioner succeeds and accordingly, I proceed to pass the

following:

ORDER

(i) Appeal is allowed in part.

(ii) Appellant/petitioner is entitled for compensation in a sum of Rs.5,37,000/- as against Rs.4,35,000/- granted by the Tribunal together with interest at 6%

p.a. from the date of petition till realization (minus the amount already paid/deposited).