Karnataka High Court
Sujaya vs Raghavendra Bhat on 10 March, 2022
Bench: J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
M.F.A.NO.5087/2012 (MV)
BETWEEN:
SUJAYA,
AGED ABOUT 23 YEARS,
S/O SUNDAR BANGERA,
R/O BAILOOR POST & VILLAGE,
UDUPI TALUK.
... APPELLANT
(BY SMT. NAZEEFA M MULLA, ADVOCATE FOR
SRI. H PAVANACHANDRA SHETTY, ADVOCATE)
AND:
1. RAGHAVENDRA BHAT,
AGED ABOUT 40 YEARS,
S/O SUBRAMANYA BHAT,
BHARATHI MOTORS,
ADARSHA BUILDING,
BRAHMAGIRI, UDUPI - 576 101
2. RELIANCE GENERAL INSURANCE CO., LTD.,
570-NELGUM CROSS ROAD,
NEXT TO ROYAL IND ESTATE,
WADALA (W), MUMBAI - 400 031
REP: BY ITS AUTHORIZED OFFICER
...RESPONDENTS
(BY SRI D.VIJAYAKUMAR, ADVOCATE FOR R2;
V/O/DTD 17.11.2014, R1 NOTICE DISPENSED WITH)
2
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
07.06.2011 PASSED BY THE COURT OF THE MACT AT UDUPI, IN
MVC No.1122/2009 TO THE EXTEND OF DISALLOWED CLAIM
AND ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION,
IN THE INTEREST OF JUSTICE.
THIS MFA HAVING BEEN HEARD AND RESERVED ON
04.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal by the petitioner seeking
enhancement of compensation granted by the Tribunal for
personal injury sustained by him, in the petition filed under
Section 163A of the MV Act under no fault liability.
2. For the sake of convenience the parties are
referred to by their rank before the Tribunal.
3. The petitioner has filed this appeal seeking
enhancement contending that the compensation granted is
highly insufficient, inadequate and disproportionate and as
such requires enhancement.
4. It is the case of the petitioner that on
28.06.2009 at about 10.20 a.m. petitioner was proceeding
on his motor cycle on Kundapura-Udupi Highway-17
towards Sasthana side. When he reached Saligrama Pete of
Chitrapady village, bus bearing registration No.KA 20/B
4131 (hereinafter referred to as offending vehicle) came
from Kundapura side towards Udupi, in a high speed and
over took the motor cycle of the petitioner and moved
further. When a passenger gave a hand signal to stop the
bus, the driver of the said bus suddenly applied brake, as a
result of which the petitioner who was behind the bus fell
down and sustained injuries.
5. Petitioner claimed compensation in a sum of
Rs.2,50,000/- from the owner and insurer of the offending
vehicle.
6. Before the Tribunal, respondent No.1 has
remained Ex-parte.
7. Respondent No.2 appeared through counsel and
filed written statement denying that the accident occurred
due to the rash or negligent driving of the bus. On the other
hand, it was the petitioner who rode the motor cycle in a
rash or negligent manner without following the traffic rules
and rode the motor cycle from the wrong side and as a
result of which accident occurred. In fact the police have
registered the case against the petitioner. The coverage of
the bus is denied. The driver of the bus was not holding a
valid and effective driving license and sought for dismissal
of the petition.
8. During enquiry petitioner has examined himself
as PW-1 and got marked Ex.P1 to 11.
9. On behalf of respondent No.2, RW-1 is examined
but no documents are marked.
10. Vide the impugned judgment and award, the
Tribunal has partly allowed the claim petition and granted
compensation in a sum of Rs.32,210/- as detailed below:
Heads Amount in
Rs.
Medical expenses 5,720
Pain and sufferings 20,000
Food and extra nourishment 2,000
Loss of income 3,000
TOTAL 32,210
11. Though, Tribunal has calculated the
compensation payable as Rs.32,210/-, relying upon the
second schedule of the MV Act, it has granted global
compensation in a sum of Rs.50,000/-.
12. Respondent No.2 has not challenged the
impugned judgment and award.
13. Not being satisfied with the quantum of
compensation, petitioner has approached this Court in this
appeal.
14. Even though the petitioner claim that the
accident occurred due to rash or negligent driving by the
driver of the offending vehicle, it is an undisputed fact that
the criminal case was registered against the petitioner
himself. The very fact that he has filed the petition under
163A of the MV Act goes to show that he is the person who
is at fault. While maintaining the petition under 163A of the
MV Act, it is not open to the petitioner to claim that the
accident occurred due to rash or negligent driving by the
offending vehicle. To that extent his contention cannot be
accepted.
15. As evident from the wound certificate, the
petitioner has sustained the following injuries:
"1.Capsular injury to both T.M.J.
2.Subluxation of Maxillary anterior teeth.
3.Cut lacerated wound over forehead 2 cmX1/2 cm
4.Cut lacerated wound below right nostril 2X1/2 cm
5.Cut lacerated wound below left eye 2X1/2 cm.
6.Contusion over right shoulder.
7.Contusion over right wrist.
8.Cerebral concussions.
9.Abrasions:
a)Above upper lip.
b)Below the right and left nostril
c)Dorsum of right hand.
d)Front of right shoulder
e)Behind left forearm
f)Lateral right eyebrow
g)Above the right and left eyebrow
h)Over the nose
i)Below the left eye
j)Over the chin
k)over the left hand."
16. Out of the above injury No.1 and 2 are grevious.
The remaining injuries are simple in nature. In a petition
filed under Section 163A of MV Act, compensation is
required to be calculated as per second schedule of the MV
Act. So far as personal injuries are concerned, the
compensation is required to be calculated as per clause (iv)
which deals with the general damages in case of injuries
and disability. As per this schedule, for a grevious injury the
maximum compensation that could be awarded is
Rs.5,000/- and for non grevious injuries Rs.1,000/-. In view
of the above injuries sustained by the petitioner, I hold that
the compensation in a sum of Rs.20,000/- under the head
pain and suffering is sufficient and it requires no
interference.
17. According to clause (iv) of the second schedule,
the maximum amount which could be granted for medical
expenses is Rs.15,000/-. In the present case, based on the
medical bills, the Tribunal has granted Rs.5,720/- towards
medical expenses which is correct. The remaining
compensation granted under the head attendant charges,
food, extra nourishment, conveyance and loss of income
are all inadmissible. Therefore, the findings of the Tribunal
that petitioner is entitled for compensation in a sum of
Rs.32,120/-, is erroneous and it is on the higher side.
18. After computing the compensation payable as
Rs.32,120/- the Tribunal has come to wrong conclusion that
as per the second schedule, the minimum compensation
should not be less than Rs.50,000/-. As per clause (ii) of
the second schedule, the minimum compensation of
Rs.50,000/- refers to fatal accidents. In other words in case
of death the minimum compensation shall not be less than
Rs.50,000/-. This is not applicable to injury cases. Wrongly
the Tribunal has applied clause (ii) to the present case and
granted global compensation in a sum of Rs.50,000/-.
Since, the Insurance company has not challenged the
impugned judgment and award, the compensation so
granted by the Tribunal, even though on the higher side
cannot be reduced.
19. In the circumstances, there is no scope for any
enhancement of more than what has been granted by the
Tribunal. Consequently, the appeal is liable to be dismissed.
Accordingly, I proceed to pass the following:
ORDER
Appeal is dismissed.
Sd/-
JUDGE
SSB/RR
