Karnataka High Court

Z Geevarghese vs Sri Bijo Zakaraiah on 8 March, 2022

Bench: Pradeep Singh Yerur

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 08TH DAY OF MARCH, 2022

                         BEFORE

     THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

              M.F.A. NO.1942 OF 2019 (MV-I)

BETWEEN:
       Z.GEEVARGHESE
       S/O.LATE EAPPEN ZACHARAIAH
       AGED ABOUT 41 YEARS
       R/AT NO.3, ABBANAKUPPE
       BIDADI HOBLI
       RAMANAGARA TALUK - 562 109
                                              .. APPELLANT
       (BY SRI SHANTHARAJ K., ADVOCATE)
AND:
1.     SRI BIJO ZAKARAIAH
       S/O.ZACHARAIAH EAPEN
       MAJOR
       RESIDING AT NO.134
       1ST FLOOR, 8TH 'D' CROSS
       1ST MAIN, K.S.TOWN
       BENGALURU - 560 060

2.     BAJAJ ALLIANZ GEN.INS CO.LTD
       BY ITS MANAGER
       GOLDEN HEIGHTS, 4TH FLOOR
       NO.1/2, 59 'C' CROSS
       4TH M BLOCK, RAJAJINAGAR
       BENGALURU - 560 010
                                       ... RESPONDENTS
     (NOTICE TO R-1 IS SERVED V.OD 30.08.2021 ; BY
SRI H.N.KESHAVA PRASHANTH, ADVOCATE FOR R-2)

                           ***
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT
AGAINST THE JUDGMENT AND AWARD DATED 20.12.2018
                                   2

PASSED IN MVC NO.4772/2017 ON THE FILE OF THE X
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT,
BENGALURU 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. Shantharaj.K., for

appellant and learned counsel Mr. H.N. Keshava Prashanth,

for respondent No.2.

3. This is an appeal preferred by the claimant

being aggrieved by the judgment and award dated

20.12.2018 passed in MVC No. 4772/2017 before the Court

of Small Causes and MACT, Bengaluru, (SCCH-16) and is

founded on the premise of inadequacy of compensation.

4. Brief Facts:

On 03.08.2017 at about 09.00 am while the claimant

was going in Honda active moped bearing Registration

No.KA-41 EE-9821 as a pillion rider, near RMC Yard,

Ramanagara, rider of the said moped rode the same in a

high speed and rash and negligent manner and suddenly

applied the brake as a stray dog crossed the road and as a

result of which the claimant fell down on the road and

sustained severe injuries all over the body. He was

immediately shifted to Ramakrishna Hospital, where he

took treatment and was inpatient for three days. Due to

the accident claimant became permanently disabled and

lost the earning capacity. Due to which claimant preferred

claim petition seeking compensation.

5 On service of notice, the respondent No.1, who

was the owner of the Honda Activa remained absent and

was placed exparte, whereas respondent No.2 - the

Insurance company, appeared and filed its statement of

objections. It denied the claim made by claimant, inter alia,

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 occurrence of accident.

Hence, denied the liability on itself to pay the compensation

and sought for dismissal of the claim petition.

6. On the basis of the pleading the Tribunal

framed relevant issues for consideration .

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

claimant got examined himself as PW1 and got marked

Ex.P1 to P12. He also got examined a Doctor as PW2 - Dr.

Venkataram Kumar.K. in support of his case.

8. The respondent No.2 - Insurer, on the other

hand, did not step into the witness box and neither lead

any evidence to counter the case of claimant, nor produced

any documents in support of their case.

9. 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.3,49,200/- with interest at the

rate of 9% per annum from the date of claim petition till

the date of payment. The Tribunal directed respondent No.2

- Insurer to pay the compensation thereby indemnifying

respondent No.1 - Owner.

10. Being dissatisfied with the meager award of

Tribunal, claimant is before this Court seeking

enhancement.

11. Learned counsel for the claimant contends that

the Tribunal erred in passing the impugned order without

consideration of the material documents both oral and

documentary and has ignored in not considering the

avocation of claimant as Painter and thereby mis-directed

itself in assessing the income at Rs.9,000/- per month,

instead of assessing just and reasonable income in

commensurate to the evidence adduced by claimant-

PW-1.

12. Learned counsel for claimant contends that the

evidence of PW2 - Doctor has been ignored by the Tribunal

and has arrived at erroneous conclusion of disability to the

extent of 12%, whereas expert Doctor has deposed that

there is 48% of functional disability and 16% disability to

the whole body considering the profession of claimant.

Thereby, he contends that the expert opinion of the medical

doctor has been ignored causing mis-carriage of justice to

the claimant. He further contends that the Tribunal has

erred in awarding just and reasonable compensation on all

other heads in view of the claimant being a skilled worker

and having sustained serious injuries causing permanent

disability effecting his future earning capacity. Hence, on

those grounds he seeks to allow the appeal and enhance

the compensation.

13. Per contra, Mr. H.N. Keshava Prasad, learned

counsel for respondent No.2 - Insurer vehemently contends

that judgment and award passed by the Tribunal is a

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.

14. He further contends that in view of the fact that

claimant has not produced any cogent material evidence

with regard to his income the Tribunal has assessed his

income at Rs..9,000/- per month and requirement of

enhancement of the same does not arise for consideration

in view of non-production of the material evidence to that

effect. He further contends that disability has been arrived

by the Tribunal based on the evidence lead by Doctor- 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.

15. Having heard the learned counsel for appellant

and learned counsel for respondent No.2 point that would

arise for consideration is whether the compensation

awarded by the Tribunal is just and reasonable and whether

the claimant is entitled for enhancement of compensation.

16. It is not in dispute that the accident occurred on

03.08.2017 at 09.00 am while the claimant was going in

Honda active moped bearing Registration No.KA-41 EE-

9821 as a pillion rider, near RMC Yard, Ramanagara, rider

of the said moped rode the same in a high speed in and

negligent manner and suddenly applied the brake as a stray

dog crossed the road as a result of which the claimant fell

down on the road and sustained severe injuries all over the

body.

17. The claimant examined himself and got marked

Ex.P1 to P12 and another witness PW2-doctor in support of

his case. Ex.P1 to P5 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 or the Final charge sheet against

the rider of moped. Claimant has produced Ex.P7 to P12

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.

18. Now Coming to the aspect of what was the

income of the claimant as on the date of accident; claim

was made by claimant that he was working as a Painter and

drawing the income of more than Rs.1,000/- per day.

However, no documentary evidence to that effect is

produced by the claimant to establish his income. In the

absence of any material as to the proof of income, the

Tribunal or this court is left with no either alternative but to

do some guess work to assess the income of the claimant

based on his profession/avocation. It is stated by the

claimant that he is working as a Painter and also learned

counsel for claimant relied on Ex.P3, which is Police record,

wherein it is mentioned that claimant is working as Painter.

19. However, this aspect of the matter was not

seriously disputed with regard to claimant being a Painter

by profession, by respondent No.2 - Insurer in their

evidence or pleadings. However, learned counsel for

respondent No.2 - Insurer contends that when there is no

documents produced with regard to proof of income, the

court will have to rely on the chart provided by the Lok

Adalath/ Legal Services Authority to arrive at a conclusion

with regard to income of the claimant

20. Having considered the submissions of the

learned counsel for both parties, I am of the opinion that in

a situation where there is no income proof produced by the

claimant, no doubt, the court will have to do some guess

work and for the said purpose chart is provided by the

Legal Services Authority. In the instant case the accident is

of the year 2017 and the notional income prescribed is

Rs.11,000/- per month. However, in my opinion, the

notional income chart prescribed is not a straight jacket

formula and Court has to assess income on the basis of

facts and circumstances of each and every case while

assessing the income of claimant. In the present case on

hand, claimant being a Painter by profession has not been

disputed and he being a skilled worker, cannot be treated

as a coolie to award notional income prescribed by Legal

Services Authority Chart.

21. In view of the same, I feel it appropriate to

assess the income of the claimant at Rs.12,000/- per

month instead of Rs.9,000/- per month adopted by the

Tribunal. Age of the claimant is 42 years as on the date of

accident and accordingly the multiplier applicable, in the

present case on hand, 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 14,

which is rightly adopted by the Tribunal, which is not

disputed by the respondents. Hence, the same does not

call for interference.

22. The claimant got examined Doctor as PW2, who

deposed that claimant has suffered certain serious injuries

and that there is disability to the extent of 48% towards

right lower limb and 16% disability to the whole body. This

aspect of the matter is considered by the Tribunal and

disability to the whole body is arrived at 12%, which I feel

is on the lower side while computing disability to the whole

body.

23. The Court should consider disability reflecting

upon the earning capacity of the person/injured. Therefore,

in the present case on hand, the disability is communited

fracture of right patella and abrasion over left hand dorsum.

Therefore, in my opinion, the reasonable percentage of

disability will have to be taken into consideration by this

Court commensurate to the loss of earning capacity of the

claimant. In the present case on hand, the claimant is a

Painter, I feel it appropriate to consider the percentage of

disability at 14% to the whole body. Therefore, under such

circumstances, the loss of future earning capacity due to

the permanent disability would be Rs.2,82,240/-

(Rs.12,000/- X 14 X 12 X 14/100) as against Rs.1,81,440/-

awarded by the Tribunal.

24. The Tribunal has awarded a sum of

Rs.50,000/- towards pain and sufferings, I am of the

opinion it does not call for interference and the same is

retained.

25. Towards attendant charges, extra nutritious

food and conveyance expenses the Tribunal has awarded a

sum of Rs.4,000/-, which is on the lower side. Accordingly,

in my opinion, Rs.20,000/- is awarded as against

Rs.4,000/- awarded by the Tribunal.

26. The Tribunal has awarded Rs.36,000/-

towards loss of income during laid up period. If the income

of the claimant is taken at Rs.12,000/- per month the loss

of income during laid up period awarded by the Tribunal is

proper and correct.

27. The Tribunal has awarded a sum of

Rs.32,709/- towards medical expenses and under the

head loss of future amenities and happiness a sum of

Rs.25,000/- is awarded by the Tribunal, which I feel does

not call for interference and the same are retained.

28. Under the head loss of future medical expenses

the Tribunal has awarded a sum of Rs.20,000/-, which

requires enhancement and Rs. 25,000/- is awarded under

this hand.

29. In view of the discussions made above, the

claimant would be entitled for enhancement of

compensation as mentioned in the table below.

   Sl.No.             Heads            Amount (Rs.)
     1.   Loss of future income       Rs.2,82,240=00
           (Rs.12,000/- X 12 X 14 X
          14/100)
     2.   Attendant charges, extra         20,000=00
          nutritious food and
          conveyance expenses
     3.   Pain and sufferings              50,000=00
     4.   Loss of income during laid       36,000=00
          up period
     5.   Medical expenses                 32,709=00
     6.   Loss of future amenities         25,000=00
          and happiness
     7.   Future medical expenses          25,000=00
                               TOTAL:   4,70,949=00

30. In view of the discussions made above, I pass the following:

ORDER

i) The appeal is partly allowed.;

ii) Consequently, the judgment and award dated

20.12.2018 passed in MVC No. 4772/2017

before the Court of Small Causes and MACT,

Bengaluru, (SCCH-16), is modified.;

iii) The compensation awarded by the Tribunal in

a sum of Rs.3,49,200/- is enhanced to

Rs.4,70,949/- (Rupees four lakhs seventy

thousand nine hundred & forty nine only),

which is rounded off to Rs.4,71,000/- (Rupees

Four Lakhs Seventy One Thousand Only) with

6% interest from the date of claim petition till

its realization.;

iv) All other conditions imposed by the Tribunal

are left intact.;

v) The insurer shall pay the differential enhanced

compensation amount within a period of six

weeks from the date of receipt of a copy of

this judgment, failing which the interest would

accrue at 9% for the said amount.