Karnataka High Court

Nagarajappa vs Arjun on 22 June, 2022

Bench: Hanchate Sanjeevkumar

                          1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 22ND DAY OF JUNE, 2022

                        BEFORE

     THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

     MISCELLANEOUS FIRST APPEAL NO.3779/2017 (MV)

BETWEEN:

NAGARAJAPPA
S/O GONAPPA
AGED ABOUT 64 YEARS,
R/AT 2ND CROSS, KUMBAR GUNDI,
MANJUNATHA TALKIES ROAD,
SHIVAMOGGA-577201.
                                   ... APPELLANT
(BY SRI.VISHWANATH POOJARY K , ADVOCATE )

AND:

1.      ARJUN
        S/O SHANKAR,
        AGED ABOUT 24 YEARS,
        R/O KUMBAR STREET,
        SHIVAMOGGA DISTRICT-577201.

2.      H.S.MANJUNATH
        S/O H.N.SHESHAGIRI,
        R/O B.B.STREET,
        SHIVAMOGGA DISTRICT-577201.

3.   THE NATIONAL INSURANCE CO. LTD.,
     S.S.COMPLEX, B.H.ROAD,
     SHIVAMOGGA,
     SHIVAMOGGA DISTRICT-577201.
                                  ... RESPONDENTS
(R1&R3-NOTICE D/W V.O.D.05.01.2021
 R2-SERVED)
                                  2



     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
22.07.2016 PASSED IN MVC NO.746/2013 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE AND
ADDITIONAL MACT-8, SHIVAMOGGA, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.,

     THIS M.F.A. COMING ON FOR FURTHER ORDERS
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 22.07.2016, passed in MVC

No.746/2013, on the file of the II Additional Senior Civil

Judge and Additional Motor Accident Claim Tribunal-8 at

Shivamogga, (hereinafter referred to as 'the Tribunal' for

brevity) seeking enhancement of compensation.

Brief facts of the case:

2. That on 09.04.2013 at about 9.45 a.m., while the

petitioner was going to his work as a pedestrian in front of

Sangam Tailors, B.H.Road, Shivamogga, the 1st

respondent being the driver of Bajaj Bike, came with great

speed, in a rash and negligent manner and dashed to the

petitioner, consequent to which, the petitioner fell down

and sustained injuries all over the body. Immediately after

the accident, he was shifted to Mc.Gann Hospital,

Shivamogga and on the advise of the doctor, the petitioner

was once again shifted to Nanjappa Hospital, Shivamogga

where he took treatment as inpatient and incurred huge

medical expenses.

3. Hence, a claim petition was filed by the appellant

under Section-166 of the M.V. Act, claiming compensation

for the injuries sustained in the accident. The Tribunal on

appreciating the materials on record, allowed the petition

in part, and awarded a compensation of Rs1,19,000/-,

along with interest at 9% per annum from the date of

petition till the date of deposit. The Tribunal held

respondent Nos.1 and 2 therein, jointly and severally liable

to pay the compensation.

4. Heard arguments of the learned counsel

appearing for the appellant and perused the materials on

record.

is dispensed with vide order dated 05.01.2021.

Respondent No.2 is served but unrepresented. Hence, the

matter is taken up for final disposal.

6. The learned counsel for the appellant

submitted that the quantum of compensation awarded

under various heads is on lesser side. Therefore, seeks for

enhancement of the compensation.

7. The compensation awarded by the Tribunal is

as follows:

Pain, Injuries And Suffering : Rs. 40,000/- Medical And Incidental Expenses : Rs. 8,600/- Loss of earnings during laid of : Rs. 30,000/- period Conveyance, attendant charges : Rs. 10,000/-

     and food and nourishment
     Future loss of income                  :   Rs.         15,120/-
     Future medical expenses                :   Rs.         15,000/-
                                 TOTAL      :   Rs.      1,18,720/-
                                                       Rounded off
                                                      Rs.1,19,000/-




         8.    The    appellant     was     a   labourer    of   Kukke

Enterprises, Shivamogga and contended that he was

earning Rs.400/- per day. The appellant-claimant has

suffered fracture of distal shaft of tibia with status part

ORIF and healing fracture of distal shaft of fibula. The

above said injuries were grievous in nature. The Tribunal

has awarded Rs.40,000/ under the head 'Pain and

Sufferings' which is found to be correct. The tribunal has

awarded Rs.8,600/- under the head 'medical expenses'

based on the medical bills produced by the petitioner.

Therefore, there is no need to make any alteration on the

said head.

9. The Tribunal has taken notional income of the

petitioner is Rs.6,000/- and awarded Rs.30,000/- towards

loss of income during laid up period and the same notional

income is considered towards future loss of income. But

the accident was occurred on 09.04.2013. Therefore, in

the absence of proof regarding monthly income of the

petitioner, a notional income of Rs.8,000/- is taken as

monthly income of the appellant, as per the chart of

Karnataka State Legal Services Authorities, since the

accident has occurred in the year 2013. Accordingly, the

income of the appellant is assessed as Rs.8,000/- per

month and if the laid up period is taken as five Months, the

appellant is entitled for a sum of Rs.40,000/- (Rs.5,000

x 8 months), under the head 'Loss of Earning During Laid

Up Period'.

10. The Tribunal has awarded Rs.10,000/- towards

conveyance attendant charges and food and nourishment

which is on lower side and the same requires to be

enhanced. Accordingly, it is enhanced to Rs.20,000/-.

11. The Tribunal has considered Rs.6,000/- as

monthly income of the petitioner. As discussed above, the

notational income of the petitioner is to be taken as

8,000/- per month. The appellant was doing coolie work,

therefore, certainly said factures affects the earning

capacity of the appellant. The appellant was aged about 62

years at the time of accident, therefore, appropriate

multiplier is '7'. Further, the PW2-doctor has stated that

the appellant sustained 10% permanent disability. Since,

appellant was aged about 62 years and working as a

coolie. Therefore, factures affects the earning capacity of

the appellant. Therefore, 10% disability is considered as

whole body disability. Hence, the compensation under the

head 'Loss Of Future Earning Capacity' is recalculated and

quantified as follows:

Rs.8,000 x 10/100 x 7 x 12 = Rs.67,200/-

12. The Tribunal has awarded Rs.15,000/- towards

future medical expenses which is found to be correct,

therefore, the same is kept in-tact.

13. Hence, the appellant is entitled for a total

enhanced compensation, under various heads as follows:

Pain, Injuries And Suffering : Rs. 40,000/-

Medical Expenses                :         Rs.        8,600/-
Loss of earnings during laid of :         Rs.       40,000/-
period
(Rs.5,000 x 8 months)

Loss of future earning capacity       :   Rs.       67,200/-
(Rs.8,000 x 10/100 x 7 x 12)

Conveyance, attendant charges :           Rs.       20,000/-
and food and nourishment
Future loss of income                               15,120/-
Future Medical Expenses        :          Rs.       15,000/-
                         TOTAL :          Rs.    2,05,920/-
                                               Rounded off
                                              Rs.2,06,000/-

14. Therefore, the appellant is awarded a total

compensation of Rs.2,06,000/- as against the

compensation awarded by the Tribunal at Rs.1,19,000/-.

Hence, the appellant is entitled for an additional

compensation of Rs.87,000/- (Rs.2,06,000 -

Rs.1,19,000), along with interest at 6% per annum from

the date of filing of the petition till deposit. However, the

appellant/claimant is not entitled for the interest for the

delayed period of 140 days.

15. Accordingly, I pass the following:

ORDER

i. The appeal is allowed in-part.