Karnataka High Court

Devaraj vs Adarsh on 9 March, 2022

Bench: J.M.Khazi

                             1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 9TH DAY OF MARCH, 2022

                          BEFORE

             THE HON'BLE MS.JUSTICE J.M.KHAZI

                 M.F.A.NO.8303/2017 (MV)
BETWEEN:

DEVARAJ,
AGED ABOUT 31 YEARS,
S/O MANJAPPA,
R/O BHEEMANERI VILLAGE,
SAGARA TALUK,
SHIVAMOGGA DISTRICT - 577 401
                                           ... APPELLANT
(BY SRI. CHIDAMBARA G S, ADVOCATE)
AND:

1.     ADARSH,
       AGED ABOUT 28 YEARS,
       S/O GURUMURTHY,
       DRIVER,
       R/O NITTURU VILLAGE,
       HOSANAGARA TALUK,
       SHIVAMOGGA DISTRICT - 577 426

2.     K.G.BHAT,
       AGE: MAJOR,
       S/O NOT KNOWN,
       R/O DHARMACHAKRA TRUST,
       No.2, RAMASHRAMA, J.P.ROAD,
       BENGALURU - 01

3.     THE MANAGER,
       UNIVERAL SOMPO GENERAL
       INSURANCE COMPANY LIMITED,
       SHIVAMOGGA - 577 201
                                           ...RESPONDENTS
                                 2


(BY SRI. B. PRADEEP, ADVOCATE FOR R3;
    R1 SERVED & UNREPRESENTED;
    V/O/D 31.05.2019, NOTICE TO R2 IS D/W)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO ALLOW THE APPEAL AND MODIFY THE JUDGMENT
AND AWARD DATED: 07.04.2017 PASSED BY THE SENIOR CIVIL
JUDGE & J.M.F.C. AND ADDL. MACT-9, SAGAR IN MVC
No.310/2014 BY GRANTING ADDITIONAL COMPENSATION OF
Rs.14,04,400/- WITH INTEREST.
     THIS MFA COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal is by the petitioner seeking enhancement.

2. For the sake of convenience the parties are

referred to by their ranks before the Tribunal.

3. It is the case of the petitioner that on 08.09.2013

at about 07.45 a.m. he was proceeding on Bajaj CT-100 Motor

cycle bearing registration No.KA-15/K 468 belonging to his

friend from Sagar to Kannuru on Shivamogga-Sagar Road.

Near Hosadurga village, respondent No.1 being the driver of

tempo traveler bearing registration KA-41-N-3836

(hereinafter referred to as offending vehicle), came in a high

speed, in rash or negligent manner and dashed against the

motor bike of the petitioner. Due to the impact, petitioner

sustained grievous injuries. In spite of prolonged treatment he

is not cured.

4. At the time of accident, he was doing agriculture

work and earning Rs.16,000/-p.m. and maintaining his family.

Subsequent to the accident he is not able to do the work as

he used to and suffering loss of income.

5. Respondent No.1 to 3 being the driver, owner and

insurer of the offending vehicle are liable to pay the

compensation jointly and severally.

6. Though duly served with notice and appeared

through counsel respondent Nos.1 and 2 did not file written

statement.

7. Respondent No.3 appeared through counsel and

filed written statement denying that accident occurred due to

the rash or negligent driving by the respondent No.1. The

accident occurred due to the fault of petitioner himself. He is

not having any driving license. In the absence of owner and

insurer of the motor cycle the petition is bad for non-joinder.

The compensation claimed is on the higher side and has

sought for the dismissal of the petition.

8. Based on the pleadings issues are framed by the

Tribunal.

9. During the enquiry, on behalf of petitioner 2

witnesses are examined including the petitioner and the

Doctor as PWs-1 and 2 and Ex-P.1 to 12 are marked.

Respondent No.2 has not led any oral evidence, but got

marked the photocopy of the insurance policy as Ex-R.1.

10. Vide the impugned judgment and award the

Tribunal has granted a sum of Rs.2,75,600/- as detailed

below:

                   Heads                    Amount in Rs.
     For Pain and sufferings, mental              30,000
     agony
     For Medical expenses                       1,33,600
     For travelling and special diet              10,000
     For permanent physical disability          1,02,000
     TOTAL                                     2,75,600

11. Respondent No.2 has not challenged the impugned

judgment and award.

12. The petitioner is seeking enhancement contending

that the compensation granted under the various heads is on

the lower side. No compensation is awarded under the head

loss of income during laid up period and loss of amenities.

Though PW.2 has deposed that the total disability is 33.55%,

the functional disability is 100%, the Tribunal has erred in

taking the disability at 10%. The income taken at Rs.5,000/-

p.m. is on the lower side.

13. On the other hand, the learned counsel for

respondent has supported the impugned judgment and award

and prays to dismiss the appeal.

14. In the light of the specific contentions raised in the

appeal memo, it is to be examined whether the compensation

granted is just and proper if not, to what extent it calls for

interference by this Court.

15. Pain and Suffering: Tribunal has granted a

compensation in a sum of Rs.30,000/- under this head.

However, the evidence placed on record establish that due to

the accidental injuries petitioner suffered fracture of right

femur with galleazi fracture of left fore arm. He has taken

treatment as in-patient and undergone surgery. Taking into

consideration these aspects, I hold that compensation granted

under this head is on the lower side and it requires

enhancement by a sum of Rs.10,000/- and therefore

petitioner is entitled for compensation in a sum of

Rs.40,000/- under the head pain and suffering as against

30,000/- granted by the Tribunal.

16. Medical expenses: Based on the medical bills the

Tribunal has granted compensation of sum of Rs.1,33,600/-

and I find no reason to interfere with the same.

17. Traveling expenses and Special Diet: Though the

petitioner has claimed compensation of sum of Rs.37,000/-

under this head, taking into consideration the nature of the

injuries and period of treatment, the Tribunal has rightly

granted compensation in a sum of Rs.10,000/- and I find no

reason to interfere with the same.

18. Compensation for permanent partial disability:

Petitioner has claimed compensation in a sum of

Rs.3,50,000/- under this head. The evidence of the Medical

Officer prove that the petitioner has sustained functional

disability of 20.44% of the right lower limb and 13.11% of the

right upper limb. However, considering the evidence placed on

record the Tribunal has taken the whole body disability at

10% which is correct and proper. In the absence of the

evidence to the contrary, the Tribunal has considered the

notional income of the petitioner as Rs.5,000/- p.m. However,

since the accident is of the year 2013 as per the Karnataka

State Legal Services Authority chart which is based on

minimum wages, the notional income is required to be taken

at Rs.8,000/-p.m. Since the age of the petitioner is proved to

be 28 years the '17' multiplier taken by the Tribunal is correct.

Based on these components, the compensation under the

head permanent partial disability comes to Rs.1,63,200/- i.e.,

8,000 x 12 x 17 x 10%=1,63,200/-. Petitioner is entitled for

compensation in a sum of Rs.1,63,200/- under this head as

against Rs.1,02,000/- granted by the Tribunal.

19. Loss of income during laid up period: The Tribunal

has not granted any compensation under this head.

Considering the nature of the injuries sustained by the

petitioner, it could be held that he was under treatment for a

period of three months. At the rate of Rs.8,000/-p.m he is

entitled for compensation in a sum of Rs.24,000/- under this

head.

20. Loss of amenities of life: The Tribunal has not

granted any compensation under this head. Taking into

consideration the nature of the injuries sustained, the

duration of the treatment and the fact of the permanent

partial disability suffered by the petitioner, I hold that

granting sum of Rs.20,000/- under this head would meet the

hands of justice.

21. Future medical expenses: The Tribunal has not

granted any compensation under this head. Having regard to

the nature of the injury sustained, period of treatment, it

would be appropriate to grant compensation of sum of

Rs.15,000/- under this head.

22. Thus, in all the petitioner is entitled for total

compensation in a sum of Rs.4,05,800/- as against

Rs.2,75,600/- granted by the Tribunal together with interest

at 6% p.a as detailed below.

           Heads              Amount granted         Amount granted
                              by the Tribunal         by this Court
                                   In Rs.                In Rs.
   Pain and sufferings,                 30,000                 40,000
   mental agony
   Medical expenses                     1,33,600            1,33,600

   Travelling and special                   10,000               10,000
   diet
   Permanent      physical              1,02,000            1,63,200
   disability
   Loss of income during                -                        24,000
   laid up period
   Loss of amenities of                 -                        20,000
   life
   Future         medical               -                        15,000
   expenses
   TOTAL                                2,75,600            4,05,800

23. To this extent the impugned judgment and order is

liable to be modified and accordingly I proceed to pass the

following order:

ORDER

(i) Appeal is allowed in part.

(ii) Appellant/petitioner is entitled for

compensation in a sum of Rs.4,05,800/- as

against Rs.2,75,600/- granted by the

Tribunal, with interest at 6% p.a. from the

date of petition till realization (minus the

amount already paid/deposited)