Sri. Harish vs Hanumanthappa T
2022 Latest Caselaw 8825 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 15TH DAY OF JUNE, 2022

                           BEFORE

  THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

            M.F.A.NO.7014 OF 2014 (MV-I)

BETWEEN:

SRI. HARISH,
S/O SHIVACHANDRAIAH,
AGED ABOUT 27 YEARS,
R/O NALLAHALLI,
HAROHALLI POST,
KANAKAPURA TALUK,
BANGALORE DISTRICT-562123.                   ...APPELLANT

(BY SRI BHOJARAJA, ADV.)

AND:

  1. HANUMANTHAPPA T,
     S/O THAGADE GOWDA,
     MAJOR, R/O NO.166,
     THUNGANAGAR EXTN,
     BYEDARAHALLI,
     VISHWANEEDAM POST,
     BANGALORE-560091.

  2. M/S ICICI LOMBARD GENERAL
     INSURANCE CO. LTD.,
     ZENITH HOUSE
     KESHAVA RAO KHADE MARG,
     MAHALAKSHMI MUMBAI-400034,
     REP. BY ITS BRANCH MANAGER.         ...RESPONDENTS

(BY SRI MALLIKARJUNA REDDY N A, ADV. FOR
 SRI B.PRADEEP, ADV. FOR R2,
 NOTICE TO R1 IS DISPENSED V/O/DT: 17.07.2019)
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     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:06.03.2014
PASSED IN MVC NO.572/2012 ON THE FILE OF THE XVIII
ADDITIONAL JUDGE, MEMBER, MACT-4, COURT OF SMALL
CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-

                           JUDGMENT

Heard the learned counsel for the appellant and the

learned counsel for respondent No.2.

1. Since there is no dispute over the insurance

coverage, notice to respondent No.1/owner is dispensed.

2. Shri. Pradeep, learned counsel appearing for

respondent No.2 is permitted to file vakalath.

3. The appellant in this appeal is seeking

enhancement of the compensation awarded by the Small

Causes Court-IV (SCC-4), MACT, Bengaluru in MVC

No.572/2012 in terms of judgment and award dated

06.03.2014. Accident referred in the petition is not in

dispute.

4. It is claimed that claimant was aged 25 years

at the time of the accident and he has suffered injuries and

abnormal mobility over the right leg. He sustained

fractures of the distal shaft of the right fibula and

commuted fracture of the distal shaft of the right tibia with

post displacement of the distal fragment. The appellant

has undergone surgery for a fracture of the tibia. He was

inpatient for 7 days. He was examined by the doctor who

treated him and issued a disability certificate stating that

the claimant has 50% disability to the whole body. The

claimant claimed the compensation of Rs.27,80,000/-. The

Tribunal has awarded compensation of Rs.2,63,000/-

under the following heads:-

     Pain and Sufferings                  Rs.50,000/-

     Loss of amenities & Happiness        Rs.30,000/-

     Medical     and   Incidental     & Rs.40,000/-
     Happiness
     Loss of earnings during         the Rs.15,000/-
     period of treatment





     Permanent disability                Rs.1,08,000/-

     Future medical expenses             Rs.20,000/-

                   Total                 Rs.2,63,000/-

5. The appellant is seeking enhancement.

6. The Learned counsel for the appellant would

submit that the compensation awarded by the Tribunal is

on the lower side looking to the nature of injuries and

disability sustained by the claimant. It is also his

submission that the claimant was having an income of

Rs.12,000/- per month at the time of the accident.

However, the Tribunal has committed an error by taking

his income at Rs.5,000/- per month is the grievance.

7. The Learned counsel for the respondent would

submit that the income of the appellant ought to have

been proved by examining the employer. Income claimed

is not established. The Tribunal after considering the oral

and documentary evidence has awarded just compensation

and there is no scope for enhancement.

8. This Court has considered the rival contentions

raised by the learned counsel appearing for the parties and

the materials placed on record. The salary certificate for

June 2013 is marked at Ex.P14. Said certificate reveals

that the gross salary of the appellant is Rs.12,000/- and

the net salary is Rs.10,920/-. The further break up in the

said certificate would indicate that the basic salary is

Rs.6,000/- and CCA is Rs.500/-, Conveyance allowance is

Rs.2,000/- and Food Allowance (R) is Rs.1,000/-. In

addition Rs.1,500/- is given as House Rent Allowance. The

certificate further disclosed a mobile allowance (R) of

Rs.1,000/-. Out of the said amount Rs., 210/- is deducted

towards insurance and Rs.150/- towards Professional Tax

and Rs.720/- towards Provident Fund. Therefore, it can

be safely assessed that the appellant's net income was at

Rs.7000/- per month. Tribunal erred in taking the monthly

income as Rs.5000=00.

9. Accordingly, compensation under the head of

loss of future earnings due to disability would be

Rs.7000X12 (month) X13 (disability) X18

(multiplier)/100=1,96,560/-.

10. It is also forthcoming from the records that,

the claimant was an in-patient for seven days and he was

advised three months of bed rest. Accordingly, the

compensation awarded under the head of pain and

suffering is to be enhanced by Rs.10,000/-. Compensation

under the head of loss of amenities and happiness is to be

enhanced by Rs.15,000/- as award compensation of

Rs.30,000/- is on the lower side considering the nature of

the injury. Under the head of loss of earning during the

laid-up period the compensation is to be enhanced to

Rs.21,000/- (Rs.7000X3) as against Rs.15,000/- awarded.

11. Insofar as the compensation under the head,

conveyance, nourishment, attendant charges and special

diet is concerned, Rs.10,000/- is awarded. This Court does

not disturb the compensation awarded under the

remaining heads.

12. It is also to be noted that the appellant has

filed the instant appeal after the lapse of 97 days. The

application was filed to condone the delay in filing the

appeal. This Court had allowed the application on the

condition that the appellant will not be entitled to interest

for the delayed period in the event of enhancement. The

appellant is entitled to the interest from the date of deposit

till the date of actual payment excluding the delayed

period of 97 days referred to above.

13. Thus, in all the claimant is entitled to

compensation as under:-

     Sl.No.               Heads             Amount (Rs.)

     1         Pain and suffering          Rs.60,000/-

     2         Loss of amenities and       Rs.45,000/-
               Happiness
     3         Medical and Incidental      Rs.40,000/-
               & Happiness
     4         Loss of earning during      Rs.21,000/-
               the laid-up period
     5         Loss of future earnings     Rs.1,96,560/-
               due to disability
     6         Future medical              Rs.20,000/-
               expenses





        7        Attendant charges,          Rs.10,000/-
                 conveyance,
                 nourishment and diet
                 etc.,
                       Total                 Rs.3,92,560/-


        Hence, the following:-

                                ORDER

        (i)     Appeal is allowed in part. The impugned judgment

and award dated 06.03.2014 passed by the XVIII Additional

Small Causes Court, Bengaluru (SCCH-4) in MVC No.572/2012

is modified.

(ii) The appellant/claimant is entitled to compensation

of Rs.3,92,560/- along with interest @ 6% p.a. from the date

of the petition till realisation.

(iii) The 2nd 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