Karnataka High Court
Vishwanath Shetty vs K Krishna on 3 March, 2022
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
M.F.A. NO.7003 OF 2019 (MV-I)
BETWEEN:
VISHWANATH SHETTY
S/O JYOTHI
AGED ABOUT 21 YEARS
R/AT BANUKUDRU HOUSE
YALOOR, HALADADY VILLAGE
AND POST, KUNDAPURA TALUK
UDUPI DISTRICT - 576 201
... APPELLANT
(BY SRI M.S.MALLIKARJUNA, ADVOCATE FOR SRI
HAVERI S.S, ADVOCATE)
AND:
1. K.KRISHNA
S/O.SUBBAYYA POOJARY
AGED ABOUT 53 YEARS
R/O "KANSAL MANE"
MALLANNA BETTU ROAD
KONI VILLAGE AND POST
KUNDAPURA TALUK - 576 201
2. THE UNITED INDIA
INSURANCE COMPANY LIMITED
BRANCH OFFICE, KUNDAPURA
UDUPI DISTRICT - 576 201
... RESPONDENTS
(BY SRI LAKSHMINARASAPPA, ADV. FOR SRI A.M.
VENKATESH, ADV. FOR R-2; R-1 SERVED &
UNREPRESENTED)
***
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT
AGAINST THE JUDGMENT AND AWARD DATED 17.05.2019
PASSED IN MVC NO.95/2018, ON THE FILE OF THE
ADDITIONAL DISTRICT JUDGE AND ADDITIONAL
MACT,UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this matter is listed for admission, with the
consent of both the learned counsel the same is taken up
for final disposal.
2. Heard learned counsel Mr. M.S.Mallikarjuna,
appearing on behalf of Mr. S.S. Haveri, learned counsel for
appellant and learned counsel Mr. Lakshminarasappa,
appearing on behalf of Mr. A.M. Venkatesh, learned counsel
for respondent No.2.
3. This is an appeal preferred by the claimant
being aggrieved by the judgment and award of
compensation in MVC No. 95/2018 before the Addl. District
Judge and Addl. MACT, Udupi, (Sitting at Kundapura),
Kundapura dated 17.05.2019 and seeking for an
enhancement of the compensation.
4. Brief Facts:
On 23.09.2017 at about 11.30am when the claimant
was walking on the mud portion of the Main road,
Kundapura, from Kundapura Bus Stand towards Kundapura
Shastri Circle side, a motor cycle ridden by its rider bearing
Registration No. KA-20 V-7463, came in a high speed and
in a rash and negligent manner from his opposite side and
dashed against the claimant. Due to which claimant
sustained grievous injuries on his person. Immediately
thereafter, he was shifted to Vinaya Hospital, Kundapura,
where he has taken inpatient treatment from 23.09.2017 to
24.09.2017. He suffered injuries to his left leg, left foot and
other parts of the body.
5. It is the case of the claimant that the accident
occurred due to sole negligence and rash driving by the
motor cycle bearing Registration No. KA-20 V-7463. In
view of the accident having been caused by the respondent
No.1 due to rash and negligent manner of riding of the
motor cycle and injuries having been suffered by the
claimant, the claimant preferred a claim petition before the
Tribunal seeking compensation.
6. On service of notice, the respondent No.2 - the
Insurance company, appeared and filed its statement of
objections. It denied the claim made by the claimant, inter
alia, amongst other grounds also took up a plea that the
accident occurred due to the fault of the claimant and
contended that the respondent No.1 - rider of the motor
cycle was not holding a valid driving license as on the date
of accident. It is contended that the negligence was on the
part of the claimant. Further, it denied the avocation of the
claimant. Hence, denied the liability on itself to pay the
compensation and sought for dismissal of the claim petition.
7. On the basis of the pleading the Tribunal
framed relevant issues.
8. In order to prove and establish his case, the
claimant got examined himself as PW1 and got marked
Ex.P1 to P13. He also got examined a Doctor as PW2-Dr.
Nikil Kumar Rai an Orthopedic Surgeon, Kundapura and eye
witness by name Avinash Rai as PW3.
9. The respondents on the other hand did not step
into the witness box or neither lead any evidence to counter
the case of the claimant, but they produced one document
marked as Ex.R1.
10. After hearing both sides and providing sufficient
opportunity to both parties, the Tribunal came to the
conclusion that the claimant would be entitled for a
compensation in a sum of Rs.2,72,300/- with interest at the
rate of 6% per annum from the date of claim petition till
the date of payment. The Tribunal fixed joint liability as
against respondent Nos.1 and 2 to pay the compensation.
11. Being aggrieved by the Judgment and award of
the Tribunal, the claimant has preferred this appeal seeking
for enhancement.
12. The point that would arise for consideration is
as to whether the Tribunal has awarded a reasonable and
just compensation in commensurate to the injuries suffered
by the claimant in the accident occurred on 23.09.2017?
13. Learned counsel for the claimant contends that
the impugned order passed by the Tribunal is erroneous
and Tribunal has awarded a meager and inadequate
compensation resulting in mis-carriage of justice to the
claimant. He further contends that Tribunal has committed
a serious error in awarding only paltry sum of
Rs.2,72.300/- and the same requires to be enhanced. He
further contends that the Tribunal has failed to take proper
income to arrive at a compensation which ought to be just
compensation.
14. Learned counsel for claimant further contends
that Tribunal has not awarded the compensation for the
loss of future earning capacity, loss of amenities so also
disability arrived at by the Tribunal is erroneous and the
same requires interference by this Court. Hence, on those
grounds he seeks to allow the appeal and enhance the
compensation.
15. Per contra, learned counsel Mr.
Lakshminarasappa, appearing on behalf of Mr. A.M.
Venkatesh, learned counsel for respondent No.2 - Insurer
vehemently contends that judgment and award passed by
the Tribunal is very reasoned and considered order and the
Tribunal has considered all aspects of income, multiplier,
loss of future income so also pain and sufferings and
accordingly awarded just and reasonable compensation and
the same does not warrant interference by this Court. He
further contends that disability has been arrived by the
Tribunal based on the evidence lead by Doctor as PW2 and
accordingly there is no requirement of interference under
this head. Hence, the appeal does not merit consideration
and the same requires to be dismissed.
16. Having heard the learned counsel for appellant
and respondent No.2 this Court will have to decide as to
whether the compensation awarded by the Tribunal is just
and reasonable and whether the claimant is entitled for
enhancement.
17. It is not in dispute that the accident occurred on
23.09.2017 at 11.30 am while the claimant was walking on
the mud portion of the Main Road at Kundapura, he met
with an accident due to rash and negligent riding of the
motor cycle bearing Registration No.KA-20 EC-7463 by
respondent No.1, due to which claimant suffered serious
injuries.
18. The claimant examined himself and got marked
Ex.P1 to P13 and other two witness PW2 & 3 in support of
his case. Ex.P1 to P6 are police records, which has been
registered with the jurisdictional Police Station of accident
having been occurred due to the rash and negligent driving
of the motor cycle ridden by respondent No.1, which has
not been disputed or challenged before appropriate forum
or Court of law nor any material is produced by the
claimant challenging FIR and other records. Claimant has
produced Ex.P7 to P13 which are his medical bills and
medical records showing the expenses incurred by him for
treatment of injuries sustained by him due to the accident.
Claimant has also produced Ex.P10 - disability certificate
and study certificate to show that he is a student.
19. It is the case of the claimant that as on the date
of accident he was 17 years and he was working as helper
in Centering work and earning income of Rs.15,000/- per
month. However, no document has been produced by the
claimant to show or prove his income before the Tribunal or
before this Court. However, since no document of income
has been produced by the claimant, the Tribunal accepted
the monthly income on the basis of notional income of the
claimant at Rs.9,000/- per month. It is not in dispute that
the accident occurred on 23.09.2017. The notional income
as per the Chart provided by the Legal Services Authority is
at Rs.11,000/- for the year 2017 which requires to be
adopted in this case as well. Therefore, I find sufficient
force in the submission made by the learned counsel for
appellant that the income adopted by the Tribunal is on the
lower side and the same requires to be enhanced to
Rs.11,000/- per month.
20. There is no dispute with regard to the fact that
as the date of accident the age of the claimant was 18
years, whereas the claimant has produced document to
show that he was born in the year 2000, which shows that
he was 17 years. However, whether 17, 18 or 19 years the
multiplier applicable to the claimant as per the judgment of
the Apex Court in the case of Sarla Verma (Smt) and
others vs. Delhi Transport Corporation and another,
reported in (2009) 6 Supreme Court Cases 121
would be 18. Accordingly, multiplier 18 has been adopted
by the Tribunal which is not disputed by the respondents.
21. The claimant got examined Doctor as
PW2, who deposed that claimant has suffered certain
serious injuries, such as, (1) Green stick fracture distal
third tibia of left leg and (2) Fracture of 1st Metatarsal left
foot. Based on the evidence of the Doctor, who was
examined as PW2, who analysed the permanent disability
to the extent of 12% in respect of left lower limb. Based on
which the Tribunal has arrived disability at 6% to the whole
body. This aspect of the matter has not been challenged by
the respondent either in this appeal by filing cross
objections or by filing any separate appeal. In view of the
above evidence, the claimant is entitle for the loss of future
earning capacity at Rs.1,42,516/- (Rs.11,000/- X 12 X 18
X 6/100) as against Rs.1,16,640/- awarded by the Tribunal.
22. It is contended that the claimant was an
inpatient in the hospital for a period of two days and the
Tribunal awarded Rs.600/- towards loss of earning during
treatment period, this requires to be enhanced to
Rs.2,000/- per day for claimant being inpatient in the
hospital.
23. The Tribunal has awarded a sum of Rs.36,000/-
towards loss of earning during bed rest. I am of the opinion
that this is on the lower side since this Court has enhanced
income of the claimant from Rs.9,000/- to Rs.11,000/-.
Accordingly, laid up period would be considered as four
months and the claimant is entitled in a sum of
Rs.44,000/- (Rs.11,000/- X 4 months) under the head
loss of earning during laid up period.
24. The claimant has produced his SSLC certificate
to show that he is continuing his education, but the Tribunal
has awarded a sum of Rs.50,000/- towards loss of
education. The same is not challenged and hence the same
is retained.
25. The Tribunal further awarded a sum of
Rs.10,000/- towards conveyance, nourishment and
attendant charges to the claimant, which is just and
reasonable and hence the same is not disturbed.
26. It is noticed that the Tribunal has not awarded
any amount towards loss of amenities. I deem it
appropriate to award a sum of Rs.25,000/- towards loss of
amenities to the claimant.
27. The Tribunal on the basis of the medical bills
and other documents produced by the claimant as per
Ex.P7 to P12, has awarded a sum of Rs.9,090/- towards
Medical expenses. In my opinion awarding of the said
amount is based on the materials produced by the claimant.
I deem it just and proper and the same is retained.
28. The Tribunal has awarded a sum of
Rs.36,000/- towards loss of bed rest, which is not
challenged and the same is retained.
29. In view of the discussions made above, the
claimant would be entitled for the enhanced
compensation as mentioned in the table below.
Sl.No. Heads Amount (Rs.)
1. Loss of future income Rs.1,42,560=00
(Rs.11,000/- X 12 X 18 X
6/100)
2. Loss of earning during 6,000=00
treatment
3. Loss of bed rest 36,000=00
4. Loss of education 50,000=00
5. Loss of conveyance, 10,000=00
nourishment and attendant
charges
6. Loss of amenities 10,000=00
7. Medical expenses 9,090=00
8. Loss of earning during 44,000=00
treatment period
TOTAL: 3, 07,650=00
28. In view of the discussions made above, I pass
the following:
ORDER
i) The appeal is partly allowed.;
ii) Consequently, the judgment and award of
compensation in MVC No. 95/2018 before the
Addl. District Judge and Addl. MACT, Udupi,
(Sitting at Kundapura), Kundapura dated
17.05.2019 is modified.;
iii) The compensation awarded by the Tribunal in
a sum of Rs.2,72,330/- is enhanced to
Rs.3,07,650/- (Rupees three lakhs seven
thousand six hundred & fifty only), with 6%
interest from the date of claim petition till its
realization.;
iv) All other conditions imposed by the Tribunal
being left intact.;
v) The insurer shall pay the differential enhanced
compensation amount within a period of eight
weeks from the date of receipt of a copy of
this judgment, failing which the interest would
accrue at 9% for the said amount.
vi) Registry to send back the trial Court records.
vii) No order as to costs.
Sd/-
JUDGE
VK
