Sandesh. K. C vs Basavaraju
2022 Latest Caselaw 4108 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 10TH DAY OF MARCH, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

 MISCELLANEOUS FIRST APPEAL NO.6688 OF 2019 (MV)

BETWEEN:
SANDESH K.C.
S/O.CHANDRA
AGED ABOUT 35 YEARS
R/AT 5TH CROSS
GANDHINAGARA
MANDYA CITY - 571 401                ... APPELLANT

(BY SRI M.Y.SREENIVASAN, ADVOCATE)

AND:
1.     BASAVARAJU
       S/O.BASAPPA
       MAJOR
       R/AT T.MALLIGERE VILLAGE
       DUDDA HOBLI
       MANDYA TALUK & DISTRICT - 571 408

2.     THE BRANCH MANAGER
       ICICI LOMBARD MOTOR
       INSURANCE CO.LTD.
       NO.204, MYTHRI ARCADE
       KANTHRAJ URS ROAD
       SARASWATHIPURAM
       MYSURU - 570 005           ... RESPONDENTS

(BY SRI B.PRADEEP, ADVOCATE FOR R-2;
    NOTICE TO R-1 IS DISPENSED WITH
      VIDE ORDER DATED 19.03.2020)
                          ---
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT TO
MODIFY THE JUDGMENT AND AWARD DATED 06.02.2019
PASSED IN M.V.C.NO.1493/2014 BY I ADDITIONAL SENIOR
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CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, MANDYA
AND ETC.

     THIS APPEAL COMING ON FOR FURTHER ORDERS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal is preferred by the claimant challenging

the judgment and award dated 06.02.2019 passed by the

I Additional Senior Civil Judge and CJM, Mandya ('the

Tribunal' for short), in MVC No.1493/2014. This appeal is

founded on the ground of inadequacy of compensation.

2. Though this matter is listed for orders, with

consent of learned counsel on both sides, matter is taken

up for final disposal.

3. Parties to the appeal shall be referred to as per

their status before the tribunal.

4. Brief facts of the case are as under:

On 24.04.2014, while the claimant was going along

with his friend to Manjunatha Conventional Hall, Mandya to

attend a marriage on motor cycle bearing registration

No.KA-11/EA-585 ridden by the claimant, the motor cycle

had halted near APMC road, Mysuru-Bengaluru road, at that

time i.e. at about 10.30 p.m., a motor cycle bearing

registration No.KA-05/HQ-338 ridden by its rider came in a

rash and negligent manner came from Bengaluru side and

proceedings towards Mysuru dashed against motor cycle of

the claimant, on account of which, the claimant and pillion

rider fell down and sustained grievous injures. The claimant

thereafter shifted to General Hospital, Mandya, where he

took first aid treatment and thereafter shifted to NIMHANS,

Bengaluru. Thereafter, the claimant was again shifted to

M.S.Ramaiah Hospital, where he has admitted as an

inpatient for 14 days and he also took treatment at

Aradhana Eye Care and Mahaveer Eye Hospital, Bengaluru,

where the claimant claims to have expended

Rs.20,00,000/- towards treatment. The claimant was aged

about 30 years as on the date of accident and was working

as a Marketing Supervisor in APMC at Mandya and drawing

a salary of Rs.21,060/- per month. He further claims that

he sustained permanent disability on account of injuries

sustained in the accident due to the rash and negligent

driving of the rider of the motor cycle and that he has lost

his future earning capacity.

5. On notice being served, respondent No.2-insurer

has filed written statement denying the claim made by the

claimant. The first respondent who is the owner of motor

cycle pleaded that he had insurance policy coverage and

that respondent No.2 would be liable for compensation or

liability as he would be indemnified by said policy coverage,

whereas the second respondent disputed the claim put-

forth by the claimant by pleading that the rider of the

motor cycle did not have a valid and effect driving licence

as on the date of the accident. It is further pleaded that

the claimant himself was negligent in riding the motor cycle

and has contributed to the occurrence of the accident.

Therefore, contributory negligence requires to be attributed

against the claimant as well. Based on these pleadings, the

tribunal framed issues.

6. To substantiate the issues and to establish the

case, claimant got examined himself as PW.1 and got

marked Exs.P1 to P101. The claimant also examined one

witness as PW.2, whereas respondents did not step into the

witness box and did not produce any documents on their

behalf.

7. After considering the material records both oral

and documentary, the tribunal has awarded global

compensation of Rs.4,00,000/- to the claimant. Aggrieved

by the same, the claimant is before this Court.

8. It is the contention of learned counsel for claimant

that judgment and award passed by the tribunal is

erroneous as it has not considered the material evidence

both oral and documentary and hence, same requires

interference and claimant is entitled for enhancement of

compensation. He further contends that the tribunal has

awarded global compensation of Rs.4,00,000/- for the

injuries sustained and the medical expenses expended and

same is on the lower side and same requires to be

enhanced. He further contends that the claimant was

working in APMC and he had to apply leave and could not

attend the work, due to which, he has lost income during

laid up period. Further, he claims that the compensation

awarded under the head of pain and suffering and other

heads is very meager and the same requires to be

enhanced. On the basis of these submissions, appellant-

claimant seeks enhancement of compensation.

9. Per contra, learned counsel for insurer vehemently

contends that judgment and award passed by the tribunal

is in accordance with material evidence both oral and

documentary and there is no legal infirmity by the tribunal.

Hence, this matter does not warrant interference by this

Court much less for enhancement of compensation.

10. Learned counsel for insurer contends that the

claimant is an employee of APMC, which is a statutory

authority and he was drawing a fixed salary and that even

during the period of his treatment, he was paid salary and

there is no loss of income during laid up period or even

future earning capacity. Therefore, the tribunal considering

the fact that injury suffered by the claimant and money

expended towards the said treatment, has awarded global

compensation of Rs.4,00,000/-, which is just and

reasonable in the fact and circumstances of the case. On

this ground, learned counsel for the insurer seeks to

dismiss the appeal.

11. Having heard the learned counsel for appellant

and learned counsel for respondent No.2, on perusal of the

material evidence both oral and documentary evidence

produced by the claimant and the impugned judgment and

award questioned herein, the point that arises for

consideration is ;

(i) "whether the tribunal has committed any

legal infirmity in awarding just and

reasonable compensation ?"

12. It is not in dispute that accident occurred on

20.04.2014, while claimant was traveling along with his

friend, another motor cycle came in a rash and negligent

manner and dashed against the motor cycle of the claimant

and the pillion rider, due to which, both of them fell down

and sustained grievous injuries.

13. To substantiate the same, the claimant has

produced Ex.P.6 to Ex.P.10 which are the police records.

There is no dispute to the said police records and there is

no challenge to the Charge Sheet filed by the police after

conducting investigation and enquiry. However, it can be

safely concluded that there is no challenge made either by

rider of the motor cycle or the Insurer/owner on the

criminal case registered against the rider of the motor

cycle. Hence, it can be concluded that there is rash and

negligence on the part of the motor cycle rider leading to

the injuries being sustained by the claimant.

14. In order to prove the income, the claimant has

produced salary slip at Ex.P.5 so also the medical

expenditure expended by the claimant for the treatment

undergone by him along with discharge summary at

Ex.P.12 to 73 and Ex.P.76 to Ex.P.101. These are all

material documents with regard to income of the claimant

and also the medical bills for having expended money for

the treatment met by him arising out of the accident.

15. In the present case on hand, admittedly the

claimant being an employee of an organization is drawing

monthly income of Rs.21,060/- which is not disputed as

salary slip is produced. Based on this aspect, the

compensation will have to be awarded. It is also not much

disputed by learned counsel for the claimant that during the

treatment undergone by the claimant, he has though

claimed loss of income during the laid up period, he has

been disbursed salary for the said period. It is also

contended by learned counsel for the respondents which is

not much disputed by learned counsel for the claimant that

there is no loss of future income and earning capacity as

the claimant is paid with the said income in accordance with

the salary slip and future increment that would be

applicable as per the statutory regulation.

16. Nothing material has been produced by the

claimant to show that he has lost his earning capacity and

that value of earning has been diminished. I agree with the

contention raised by learned counsel for the respondents

that the earning capacity of the claimant is not diminished

and he continues to work in the same organization and has

not lost his job. Therefore, I do not find much force in the

submissions made by learned counsel for the appellant.

The Tribunal on consideration of all these documents

produced by the claimant has awarded global compensation

of Rs.4,00,000/- on the basis of the material produced by

the claimant with regard to the medical bills and the

treatment and the expenses for the purpose of re-

imbursement.

17. Therefore, I do not find any legal infirmity or

infraction in awarding global compensation of Rs.4,00,000/-

on the basis of the oral evidence adduced and the material

document produced by the claimant. In the said

circumstances, I pass the following

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ORDER

The appeal is dismissed as there is no merit,

Sd/-

JUDGE

LB/PN