Karnataka High Court

The Manager vs D G Kumar on 15 June, 2022

Bench: Hanchate Sanjeevkumar

                              1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 15TH DAY OF JUNE, 2022

                           BEFORE

 THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

  MISCELLANEOUS FIRST APPEAL NO.2442 OF 2018 (MV-I)
                 CONNECTED WITH
  MISCELLANEOUS FIRST APPEAL NO.4256 OF 2018 (MV-I)

IN M.F.A. NO.2442/2018:
BETWEEN:

        THE MANAGER
        RELIANCE GIC LTD.
        FIRST FLOOR, KRUTHIKA ARCADE
        NEAR N.R. CIRCLE
        HASSAN - 573 201
        NOW REPRESENTED BY ITS LEGAL MANAGER
        RELIANCE GENERAL INSURANCE CO. LTD.
        REGIONAL OFFICE, 5TH FLOOR
        CENTENARY BUILDING, M.G. ROAD
        BENGALURU - 560 001
                                               ... APPELLANT
        (BY SRI PRADEEP B., ADVOCATE)

 AND:

 1.     D G KUMAR
        NOW AGED ABOUT 56 YEARS
        S/O C.V. GURUSIDDAPPA
        RESIDING AT DODDABIDARE
        C.N. HALLI TALUK
        TUMAKURU
        NOW RESIDING AT HEGGERE
        BESIDE SSD COLLEGE
        TUMAKURU - 573 201
                               2



 2.   SMT. RATHNAMMA
      W/O LATE BORAIAH
      AGED ABOUT 52 YEARS
      HOYALAKATEE POST
      HULIYAAR HOBLI
      C.N. HALLI TALUK - 573 401
      TUMKUR DISTRICT
                                           ... RESPONDENTS

      (BY SRI K. SHANTHARAJ, ADVOCATE, FOR R-1, &
          SMT. S.B. LAKSHMI, ADVOCATE, FOR R2)

                             ***

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
 SECTION 173 OF THE MOTOR VEHICLES ACT AGAINST THE
 JUDGMENT AND AWARD DATED 2-8-2017 PASSED BY THE II
 ADDITIONAL DISTRICT AND M.A.C.T., TUMAKURU, IN M.V.C.
 NO.611 OF 2016 AWARDING COMPENSATION OF RS.9,56,323/-
 WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL
 REALISATION.


IN M.F.A. NO.4256/2018:
BETWEEN:

      D G KUMAR
      S/O C V GURUSIDDAPPA
      AGED 56 YEARS
      RESIDING AT DOODABIDARE
      C N HALLI TALUK
      NOW RESIDING AT
      HEGGERE, BESIDE SSD COLLEGE
      TUMAKURU 572101
                                              ... APPELLANT

      (BY SRI K. SHANTHARAJ, ADVOCATE)
                               3




AND:

1.     SMT RATNAMMA
       W/O LATE BORAIAH
       AGED 52 YEARS
       RESIDING AT HOYSALAKATTE POST
       HULIYAR HOBLI
       C N HALLI TALUK
       TUMAKURU DISTRICT 572214

2.     THE RELIANCE GENERAL INSURANCE
       COMPANY LTD.
       REPRESENTED BY ITS MANAGER
       1ST FLOOR, KRUTHIKA ARCADE
       NEAR N R CIRCLE
       HASSAN 573201
                                            ... RESPONDENTS

       (BY SMT. S.B. LAKSHMI, ADVOCATE, FOR R-1, AND
           SRI PRADEEP B., ADVOCATE, FOR R-2)

                             ***
       THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 2-8-2017 PASSED BY THE II
ADDITIONAL DISTRICT AND M.A.C.T., TUMAKURU, IN M.V.C.
NO.611 OF 2016 PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION       AND     SEEKING     ENHANCEMENT      OF
COMPENSATION.

       THESE MISCELLANEOUS FIRST APPEALS ARE COMING ON
FOR FINAL HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:
                              4


                     JUDGMENT

M.F.A. No.2442 of 2018 is filed by the Insurance

Company challenging the judgment and award dated

2-8-2017 passed by the II Additional District Judge and

Motor Accident Claims Tribunal, Tumakuru, in M.V.C.

No.611 of 2016 questioning the quantum of compensation

awarded.

2. M.F.A. No.4256 of 2018 is filed by the claimant

challenging the judgment and award dated 2-8-2017

passed by the II Additional District Judge and Motor

Accident Claims Tribunal, Tumakuru, in M.V.C. No.611 of

2016 seeking enhancement of compensation.

3. The brief facts of the case are that, on 5-1-2016

at about 5:00 p.m., the claimant was proceeding on his

motorcycle bearing Registration No.KA.44 H.9699 from

Doddabidare to Huliyar on N.H.150A Road and when he

reached near SLR petrol bunk, Huliyar-Sira Road, at that

point of time, a Tractor bearing Registration No.KA-44

T-7596 being driven by its driver in a rash and negligent

manner came from Huliyar side and dashed against the

motorcycle being ridden by the claimant. As a result, the

claimant sustained grievous injuries.

4. Learned counsel for Insurance Company

submitted that the Tribunal has committed an error in

taking income of the claimant at Rs.12,000/- per month

without proof of income. Though it is contended that the

claimant was an Agriculturist and doing business, but

there is no document regarding proof of income of the

claimant. Therefore, on this circumstance, income of the

claimant ought to have been taken at Rs.9,500/- per

month. He further submitted that rate of interest awarded

at 8% per annum is on the higher side and same may be

awarded at the rate of 6% per annum. Therefore, he is

seeking reduction of compensation awarded.

5. On the other hand, learned counsel for the

claimant submitted that the amount of compensation

awarded by the Tribunal on each head is on the lower

side. He further submitted that P.W.2-Dr. Krishna

Prasad, who treated the claimant, has deposed that the

claimant has sustained disability of 63% to lower limb and

21% to the whole body. However, the Tribunal without

any cogent and proper reasons, assessed the disability at

15% to the whole body. He further submitted that the

compensation awarded towards future medical expenses,

food and nourishment, and attendant charges are on the

lower side. Therefore, he prays for enhancement of

compensation.

6. Heard the learned counsel for the parties and

perused the impugned award.

7. As per Ex.P.6-Wound Certificate, the claimant

had sustained following injuries:

"Swelling and Rom® LL X-ray shows # Tibial condyle"

8. The injuries are grievous in nature. The amount

of compensation awarded under the head of medical

expenses is as per the actual bills produced and the same

is confirmed. Further, the Tribunal has awarded

compensation of Rs.10,000/- towards food and

nourishment and Rs.10,000/- towards transportation

which are found to be correct. Therefore, there is no

interference on these facts.

9. The claimant was aged fifty years as on the date

of the accident and was doing agricultural work and doing

business at APMC yard and therefore, the claimant would

definitely suffered discomfort in his life and loss of

enjoyment in life and mental agony. Therefore, the

compensation awarded under the head of loss of amenities

requires to be enhanced and same is enhanced to

Rs.30,000/-. The claimant has produced R.T.C. extracts

as per Exs.P.13 and P.17 wherein his name is recorded in

the R.T.C. extracts, which proves that he is an

Agriculturist. Further, the claimant has produced

Ex.P.14-VAT Registration Certificate, Ex.P.15-License

Certificate, Ex.P.16-Registration Certificate and Ex.P.12-

Transportation bills which proves that the claimant was

doing business in APMC Market. Therefore, the profession

of the claimant is considered as Agriculturist-cum-

business in APMC Market. Therefore, considering these

factors, the Tribunal had considered the income of the

claimant at Rs.12,000/- per month. Learned counsel for

the Insurance Company submitted that the claimant has

not produced his exact proof of income and hence, his

income to be taken at Rs.9,500/- per month. This

submission of the learned counsel for the Insurance

Company cannot be acceptable for the reasons that it is

proved by the documents that the claimant was

Agriculturist and was doing business. Notional income to

be considered when there is no proof of income as well as

avocation, but in the present case, the avocation of the

claimant is proved that he was working as an Agriculturist

and doing business at APMC yard. Therefore, the

Tribunal has correctly held the monthly income of the

claimant at Rs.12,000/- per month.

10. The Tribunal has committed an error in holding

the disability at 15% as against the medical evidence as

well as evidence of P.W.2-Doctor. The claimant had

suffered fracture of right leg of tibial condyle and other

fracture injuries. Therefore, P.W.2-Doctor had stated that

the claimant had suffered 63% of disability to lower limb

and 21% towards whole body. P.W.2 was a treating

Doctor when the claimant was admitted in the Hospital.

Just because fracture is united that cannot be said that

percentage of disability is reduced. The Tribunal without

assigning any reason has reduced the percentage of

disability at 15% which is not correct. Even though, the

fractures are united, but the functional disability cannot

be said to be reduced. The functional disability can be

considered by taking into factor the avocation of the

claimant. Therefore, considering the principles laid down

by the Hon'ble Supreme Court in the case of RAJ KUMAR

v. AJAY KUMAR AND ANOTHER, reported in

(2011) 1 SCC 343, and considering the evidence of P.W.2-

Doctor and Ex.P.6-Wound Certificate, the functional

disability ought to have been taken at 21% and not 15%.

11. The claimant was aged fifty years. Appropriate

multiplier applicable is '13' as per Sarla Verma's case.

Hence, loss of future income due to disability is calculated

to Rs.3,93,120/- (12,000 X 21% X 13 X 12). Further, the

Tribunal has awarded only Rs.2,000/- towards attendant

charges and the same is enhanced to Rs.10,000/-. The

claimant has suffered injuries to the right leg and has

undergone surgery. The Tribunal has awarded

Rs.30,000/- towards future medical expenses. Hence, for

removal of implants, the compensation is required to be

enhanced. Therefore, Rs.50,000/- is awarded under the

head of future medical expenses.

12. Thus, the claimant is entitled for a total

enhanced compensation, under various heads as follows:

As awarded As awarded by by the Heads this Court Tribunal (in Rs.) (in Rs.) Pain and Sufferings 40,000.00 40,000.00 Medical expenses 5,22,523.00 5,22,523.00 Food and nourishment 10,000.00 10,000.00 Transportation charges 10,000.00 10,000.00 Loss of amenities in life 25,000.00 40,000.00 Loss of future income 2,80,800.00 3,93,120.00 Attendant charges 2,000.00 10,000.00 Loss of income during laid 36,000.00 36,000.00 up period Future medical expenses 30,000.00 50,000.00 Total 9,56,323.00 11,11,643.00

13. The claimant is awarded a total compensation of

Rs.11,11,643/- as against the compensation awarded by

the Tribunal at Rs.9,56,323/-. Hence, the claimant is

entitled for an additional compensation of 1,55,320/-.

The Tribunal has awarded interest at the rate of 8% per

annum. In view of the enhancement, the entire amount

shall carry interest at the rate of 6% per annum from the

date of petition till its realisation. Therefore, the appeals

preferred by the Insurance Company and the claimant

respectively are liable to be partly allowed.

14. Accordingly, I proceed to pass the following

ORDER

i. M.F.A. No.2442 of 2018 filed by the Insurance

Company is partly allowed only to an extent of rate of

interest;

ii. M.F.A. No.4256 of 2018 filed by the claimant is partly