Sri.Venkatesh M vs C.G.Enterprises
2022 Latest Caselaw 9805 Kant

                         1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF JUNE, 2022

                      BEFORE

 THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

MISCELLANEOUS FIRST APPEAL NO.4855/2018 (MV)

BETWEEN:

SRI.VENKATESH M
S/O MYTHE GOWDA
AGED ABOUT 21 YEARS
R/AT NO 258, 13TH MAIN,
1ST CROSS, GOKULA,
MATHIKERE, BANGALROE - 54
                                    ... APPELLANT
(BY SRI. SHRIPAD V.SHASTRI, ADVOCATE )


AND:

1 . C.G.ENTERPRISES
NO 153/26, 13TH 'B' MAIN,
GOKULA I STAGE, IPHASE,
MATHIKERE, BENGALURU - 560 054.
(RC OWNER OF MOTOR CYCLE,
BEARING REG NO.KA- 04-JB-6178)

2 . THE ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE, LEO SHOPPING,
RESIDENCY ROAD, M.G. ROAD,
BANGALORE - 560 001
BY ITS MANAGER
(I.P. NO.423101/31/2010/12292 VALID
FROM 07.12.15 TO 06.12.16
                                    ...   RESPONDENTS

(BY SRI. M.ARUN PONNAPPA, ADVOCATE FOR R2)
                                    2



     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
07.03.2018 PASSED IN MVC NO.5486/2016 ON THE FILE
XXI ACMM & XXIII ADDITIONAL SMALL CAUSE JUDGE,
MACT, BANGALORE (SCCH-25), PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.,

     THIS M.F.A. COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

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

Motor Vehicles Act, 1988 by the appellant-claimant

challenging the judgment and award dated 07.03.2018,

passed in MVC No.5486/2016, on the file of the Motor

Accident Claims Tribunal Court of Small Causes,

Bengaluru, seeking enhancement of compensation.

2. On 27.07.2016 at about 2.15 p.m., the claimant

was traveling in a motorcycle bearing Registration

No.KA-04-JB-6718 from Sadhashivanagar to Gokula

via Malleshwaram. At that time, near Ayyappa temple,

18th cross junction, Malleshwarm, the rider of the said

motor cycle rode it in a rash and negligent manner

and dashed against the car bearing registration

No.KA-51-C-2994, due to which, the appellant fell

down. As a result of the aforesaid accident, the

claimant sustained grievous injuries. Thereafter,

appellant-claimant was shifted to MSR Hospital and

later shifted to Columbia Asia Hospital, Yeshwanthpur.

He has undergone surgery with internal fixation and

was discharged with an advice to take follow up

treatment.

3. Thereafter, the appellant filed a claim petition

under Section 166 of the Motor Vehicles Act, 1988

whereunder the Tribunal has awarded a compensation of

Rs.2,27,400/- along with interest at 8% per annum from

the date of petition till realization.

4. Heard arguments of the learned counsel for the

appellant and the learned counsel for respondent No.2 -

insurance company and perused the materials on record.

5. Learned counsel for the appellant submitted

that the amount of compensation awarded under each

head is on the lower side and the same needs to be

enhanced. Therefore, he seeks for enhancement of

compensation.

6. Further, he submitted that the notional income

awarded by the tribunal is on the lower side. Further

submitted that tribunal has not awarded compensation on

the balance amount of medical expenses and hospital

charges. Therefore, appellant is entitled for Rs.72,105/-.

He further submitted that the doctor had stated the

disability @ 15% to the whole body but the tribunal only

on assumption has taken disability of whole body at 5%

which is not correct. Therefore, prays to hold 15%

disability while awarding compensation under the head

future income due to disability. Therefore, he prays to

allow the appeal and enhance the compensation awarded

by the tribunal.

7. On the other hand, learned counsel for

respondent No.2 submitted that the compensation

awarded by the tribunal is perfectly justifiable. Hence, he

submits that there is no need for any interference and

prays for dismissal of the appeal.

8. The tribunal has awarded compensation under

various heads as follows:

  1. Pain & suffering                Rs.70,000/-
  2. Medical expenses                ----

3. Loss of income during laid up Rs.16,000/- period

4. Loss of future income Rs.86,400/-

5. Loss of future amenities and Rs.15,000/- happiness

6. Attendant, conveyance, food and Rs.20,000/- nourishment charges

7. Future Medical expenses Rs.20,000/-

TOTAL Rs.2,27,400/-

9. Ex.P5 is the wound certificate and PWs.2 and 3

are the Doctors, who have supported the version of the

claimant to prove that the appellant has suffered the

following injuries:

(1) Multiple abrasion present over anterior aspect of

knee and posterior aspect of distal leg,

(2) Lacerated wound over middle of left leg,

(3) Communitted displaced fracture of left

tibia/fibula,

(4) Head injury with (a) Acture small extradural

heamatoma left anterior temporal pole (b) Subdular

haemorge right frontal lobe (c) fracture of left destral

flor roof (d) fracture greater wing left spheroid

(e) fracture left maxillary einus (f) fracture left

gomatically,

(5) Comminuted abrasions over the face.

10. The tribunal has awarded compensation of

Rs.70,000/- under the head "pain & suffering" which is

found to be correct. Hence, there is no need for

interference in this regard.

11. Further, the tribunal has not awarded

compensation on many aspects. Under the head "Medical

Expenses", Ex.P.12 is the medical bills (193 numbers)

amounting to Rs.1,58,902/.- The mother of the appellant

is holding ESI card and ESI has reimbursed a sum of

Rs.86,797/-. The balance amount of Rs.72,105/- was not

paid. It is also not disputed that the total medical bills

produced is amounting to Rs.1,58,902/-. Therefore, under

these circumstances, whatever amount has not been

reimbursed, the same is entitled to be paid to the

appellant. Accordingly, after deducting Rs.86,797/- out of

Rs.1,58,902/-, the remaining amount of Rs.72,105/- is

entitled to be paid. Accordingly, a sum of Rs.72,105/- is

awarded under the head "Medical Expenses" and as well as

hospital charges.

12. Further, the accident was occurred in the year

2016 but the tribunal has considered notional income as

Rs.8,000/-. Therefore, the notional income as recognized

by the Karnataka State Legal Services Authority has to be

considered. Accordingly, Rs.9,500/- per month is taken as

notional income of the appellant. Doctors PWs.2 & 3 have

stated that the appellant had suffered 15% whole body

disability, but considering that the appellant had suffered

fracture of left tibia/fibula also the back of the shoulder

and abrasions over the face, 10% of disability is

considered to the whole body. The appellant was 19 years

old as on the date of the accident. Therefore, loss of future

income as per multiplier '18' is awarded as under:

Rs.9,500 X 10%X 18 X 12=2,05,200/-

13. Further, compensation of Rs.16,000/- is

awarded by the tribunal under the head "loss of income

during laid up period" for two months, but as stated above,

the notional income is taken at Rs.9,500/- per month.

Therefore, for two months "loss of income during laid up

period" is awarded at Rs.19,000/- (Rs.9,500X2).

14. Further, the tribunal has awarded

compensation of Rs.15,000/- towards "loss of future

amenities and happiness". It is true that due to the

accident, a boy of 19 years old has suffered grievous

injuries from top to bottom. Certainly, he has lost the

comfort in his life and accordingly, a compensation of

Rs.30,000/- is awarded under the head "loss of future

amenities and happiness".

15. Further, a compensation of Rs.20,000/-

awarded under the head "Attendant, conveyance, food and

nourishment charges" and Rs.20,000/- towards "Future

Medical expenses" are correct and same is kept intact.

16. Thus, in all the appellant is entitled for the

following compensation under various heads:

   Sl         Particulars                         Amount
   No.
   1.         Pain & suffering                    Rs.70,000/-
   2.         Medical expenses                    Rs.72,105/-
   3.         Loss of income during laid          Rs.19,000/-
              up period
   4.         Loss of future income             Rs.2,05,200/-
   5.         Loss of future amenities            Rs.30,000/-
              and happiness
   6.         Attendant,      conveyance,         Rs.20,000/-
              food    and     nourishment
              charges
   7.         Future Medical expenses             Rs.20,000/-
              TOTAL                    Rs.4,36,305/-
              Less:                    Rs.2,27,400.00

Total compensation to be Rs.2,08,905.00 paid by respondent

Accordingly, I pass the following:

ORDER

i. The appeal is allowed in part.

ii. The appellant is entitled for an additional

compensation of Rs.2,08,905/- (Rupees

Two Lakh Eight Thousand Nine Hundred

and Five Only), along with interest at 6% per

annum from the date of filing of the petition till

deposit in addition to what has been awarded

by the Tribunal.

iii. 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.

     iv.    Draw the award accordingly.



                                         Sd/-
                                        JUDGE



DS