Karnataka High Court

Sri B S Chennappa vs The Head Master on 7 March, 2022

Bench: Pradeep Singh Yerur

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 07TH DAY OF MARCH, 2022

                      BEFORE

  THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

             M.F.A. NO.6115 OF 2019 (MV)

BETWEEN:
SRI B.S.CHENNAPPA,
S/O B.C.SIDDAPPA,
AGED 29 YEARS,
BORAPURA VILLAGE,
MADDUR TALUK-571 428.
MANDYA DISTRICT.
                                       ... APPELLANT
(BY SRI SHIVAPRASAD.M, ADVOCATE)


AND:


1. THE HEAD MASTER,
   GEETANJALI HIGHER,
   PRIMARY SCHOOL,
   JNANASAGARA CAMPUS,
   M.C.ROAD,
   MANDYA-571 401.

2. THE BRANCH MANAGER,
   NATIONAL INSURANCE CO. LTD.,
   V.V.ROAD,
   MANDYA-571 401.
                                   ... RESPONDENTS
(BY SRI SHIVARAJ PATIL, ADV. FOR R2;
    R1 SD. UNREPRESENTED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT
AGAINST THE JUDGMENT AND AWARD DATED
                                2

11.04.2019 PASSED IN MVC NO.766/2017, ON THE FILE
OF THE SENIOR CIVIL JUDGE & MACT, MADDUR,
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

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.Shivaprasad.M.,

appearing on behalf of the appellant and learned

counsel Mr.Shivaraj Patil, appearing on behalf of

respondent No.2.

3. This is an appeal preferred by the claimant

being aggrieved by the judgment and award dated

11.4.2019 passed by the Senior Civil Judge & MACT,

Maddur in MVC No.766/2017. This appeal is founded by

the inadequacy of compensation awarded by the

Tribunal and hence seeking for enhancement of the

compensation.

4. Brief facts of the case:

On 10.05.2016 at about 6.30 am when the

claimant was riding the Honda Activa motorcycle

bearing Registration No.KA-51-EN-517 slowly and

cautiously on the left side of the road namely

Bangalore-Mysore Road, at that time, one school bus

bearing Registration No.KA-11-A-7975 which was being

driven by its driver in a rash and negligent manner and

at a high speed so as to endanger human life, all of a

sudden stopped the bus without giving any signal. Due

to which, claimant, who was riding the motorcycle

dashed against the hind portion of the bus. As a result,

the claimant fell down and sustained grievous and

multiple injuries all over his body. Immediately

thereafter, he was shifted to Government Hospital,

Maddur for initial treatment and thereafter he was

shifted to MIMS, Maddur and subsequently, he was

shifted to JSS, Mysore. Surgery was conducted on the

claimant and he was discharged thereafter and advised

to take regular outpatient treatment.

5. It is the case of the claimant that the

accident occurred due to sole negligence and rash

driving by the driver of the school bus. Due to the

accident and injuries sustained by the claimant and the

expenditure expended by him, the claimant has

preferred the claim petition against the respondents

seeking compensation.

6. On service of notice, respondent No.1,

owner of the offending vehicle namely school bus did

not file statement of objections and the respondent

No.2-Insurance company, appeared and filed its

statement of objections and contested the claim petition

by denying the claim made by the claimants. It was

pleaded by the respondent No.2 that insurance

coverage of the offending vehicle is disputed and it is

also disputed that the driver of the offending vehicle

was not holding a valid driving licence as on the date of

accident. Hence, no liability would arise against the

Insurance Company. Hence, denied the liability on itself

to pay the compensation and sought for dismissal of the

claim petition.

7. On the basis of the pleadings, the Tribunal

framed relevant issues.

8. In order to prove and establish his case, the

claimant got examined himself as PW1 and got marked

Exs.P-1 to P-13. He also got examined an eye witness

namely Mr.Sudhan.H.P. as PW-2. The claimant also got

examined two witnesses namely Dr.Mahesh.S. and

Dr.Adarsh through Court Commissioner as CW1 and

CW2 and through their evidence Exs.C-1 to C-15 were

got marked.

9. The respondents on the other hand did not

step into the witness box or neither led any evidence to

counter the case of the claimant and did not produce

any document on their behalf.

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.3,24,389/- with interest

at the rate of 9% per annum from the date of claim

petition till the date of payment and directed the

respondent No.2 being the insurer to deposit the

compensation amount. Being aggrieved by the

Judgment and award of the Tribunal, the claimant has

preferred this appeal seeking for enhancement.

11. The point that would arise for consideration

is as to whether the Tribunal has awarded a reasonable

and just compensation commensurate to the injuries

suffered by the claimant in the accident occurred on

10.5.2016?

12. Learned counsel for the claimant has

vehemently contended that the impugned judgment and

award passed by the Tribunal is erroneous and Tribunal

has erred in not computing appropriate compensation

under the relevant heads and thereby awarded a

meager and inadequate compensation resulting in mis-

carriage of justice to the claimant. The judgment and

award of the Tribunal requires to be set aside and

compensation has to be enhanced in favor of the

claimant. He further contends that the Tribunal has

failed to assess proper income and total compensation

awarded by the Tribunal under different heads is on the

lower side and same requires to be enhanced. On these

grounds, he seeks to allow the appeal and enhance the

compensation.

13. Per contra, learned counsel for respondent

No.2 - Insurer vehemently contends that judgment and

award passed by the Tribunal is 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, which is in accordance

with the materials and documents produced by the

claimant. The compensation awarded by the Tribunal is

just and reasonable and the same does not warrant

interference by this Court. Hence, the appeal does not

merit consideration and the same requires to be

dismissed.

14. 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.

15. It is not in dispute that the accident

occurred on 10.5.2016 at 6.30 am while the claimant

was riding his Honda Activa Motorcycle on Bangalore-

Mysore Road. It is also not in dispute that the accident

was caused by rash and negligent driving of the school

bus bearing Registration No.KA-11-A-7975 by its driver,

due to which the claimant suffered grievous injuries.

16. It is also not in dispute that a complaint

came to be registered against the driver of the bus,

pursuant to which an FIR and final report came to be

filed. The claimant has produced Ex.P1 to P6 - Police

records. It is apparent that the criminal case has been

lodged against the driver of the bus and final report to

that extent has been filed. These documents Ex.P1 to P6

are not disputed by the respondents, so also admittedly

there is no challenge made to the registration of the

case and filing of the final report against the driver of

the bus. To disprove the same, the insurer or the

owner of the offending vehicle have not produced any

documents to show that there is no negligence on the

part of the driver of the bus or there was contributory

negligence on the part of the claimant. Hence, it can be

concluded on the basis of the police records that there is

rash and negligent driving on the driver of the bus and

due to the said accident, the claimant has sustained

serious injuries.

17. Now, the point for consideration is, 'what

would be the income to be adopted by this Court for

deciding the compensation?'. Admittedly, claimant has

not produced any material evidence as proof of income

or source of income. In case where the claimant is

unable to produce any material to prove the income, the

Tribunal as well as this Court would have to make

guesswork and take the assistance of the notional

income prescribed in the chart prepared by the Legal

Services Authority.

18. In the present case on hand, the Tribunal

has taken the income of the claimant at Rs.7,000/- per

month. I am in agreement with the contention of the

learned counsel for claimant that the same is on the

lower side as the notional income prescribed in the

Legal Services Authority Chart for the accident of the

year 2016, is Rs.9,500/- per month for the computation

of the compensation.

19. The age of the claimant was 27 years as on

the date of accident. The appropriate multiplier would

be 17 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.

20. The claimant has got examined two doctors

as CW-1 and CW-2, who have deposed in favour of the

claimant and produced Exs.C-1 to C-15, wherein they

have deposed that due to the accident the claimant has

suffered disability to the extent of 21.5% to the upper

limb. Evaluating the same, the Tribunal has arrived at

whole body disability to the extent of 6%. On the basic

mathematical calculation, if 1/3rd is deducted, the whole

body disability comes to 7%. Hence, the whole body

disability is ought to be taken at 7% rather than 6%

taken by the Tribunal for calculating the 'loss of future

earning'. In view of the above, the 'loss of future

earning capacity' would be Rs.1,35,660/- (Rs.9,500/-

x 12 x 17 x 7/100) as against Rs.85,680/- awarded by

the Tribunal.

21. The Tribunal has awarded a sum of

Rs.25,000/- under the head of 'pain and sufferings', the

same requires to be enhanced by an additional sum of

Rs.20,000/- making it Rs.45,000/-.

22. The Tribunal has awarded a sum of

Rs.14,000/- towards the 'loss of income during laid-up

period'. Considering the nature of injuries, I deem it

appropriate to award a sum of Rs.30,000/- as 'loss of

income during laid-up period' as against a sum of

Rs.14,000/- awarded by the Tribunal.

23. The Tribunal has awarded a sum of

Rs.12,000/- towards 'medical attendant charges'. The

claimant was treated as inpatient for a period of 21

days. Hence, I deem it appropriate to award a sum of

Rs.21,000/- under the head of 'medical and attendant

charges' as against Rs.12,000/- awarded by the

Tribunal.

24. The Tribunal has awarded a sum of

Rs.15,000/- under the head 'loss of future happiness

and amenities'. Considering the nature of injuries and

disability stated by the doctors, I deem it appropriate to

award a sum of Rs.25,000/- as against Rs.15,000/-

awarded by the Tribunal under the said head.

25. The Tribunal has awarded compensation of

Rs.172,709/- towards 'medical expenses'. The same is

awarded on the basis of the actual medical bills

produced by the claimant at Ex.P-8 to 10. I do not find

any reason to interfere with the said amount awarded

by the Tribunal under the head of 'medical expenses'.

26. In view of the discussions made above, the

claimant would be entitled to the compensation as

mentioned in the table below.

As awarded As awarded Heads by the by this Tribunal Court (Rs.) (Rs.) Pain and sufferings 25,000 45,000 Medical expenses 172,709 172,709 Medical and attendant 12,000 21,000 charges Loss of income during 14,000 30,000 laid up period Loss of amenities 15,000 25,000 Loss of future income 85,680 135,660 Total 324,389 429,369

27. In view of the discussions made above, I

pass the following:

ORDER

a) The appeal is partly allowed.

Consequently, the Judgment & Award of the

Tribunal is modified.

b) The claimant is entitled to a total

compensation of Rs.429,369/- as against

Rs.3,24,389/- awarded by the Tribunal.

c) The Insurance Company is directed to

deposit the compensation amount along with

interest from the date of filing of the claim petition

till the date of realization, within a period of six

weeks from the date of receipt of copy of this

judgment