Karnataka High Court
M/S Prasanna B. S vs C Dorai on 25 March, 2022
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.1821 OF 2012 (MV)
BETWEEN:
M/S PRASANNA.B.S
S/O SRI. SUNDARESH.N.S
AGED 23 YEARS
R/A NO.622, 64TH CROSS
5TH BLOCK, RAJAJINAGAR
BANGALORE-560010
...APPELLANT
(BY SMT. P. ARCHANA MURTHY, ADVOCATE FOR
SRI. S.DORAI BABU, ADVOCATE)
AND:
1. C. DORAI
S/O CHALLAPPA
R/O NO.11, 3RD CROSS
K.P. AGRAHARA
OPP. YELLAMMA TEMPLE
MAGADI ROAD, BANGALORE-560 023
2. ICICI LOMBARD MOTOR INSURANCE CO. LTD
ZENITH HOUSE, KESHAVA RAO
KHADE MARGA, MUMBAI-400034
... RESPONDENTS
(BY SRI.LAKSHMI NARASAPPA K.S, ADVOCATE FOR
SRI. A.M.VENKATESH, ADVOCATE FOR R2-VC)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:19.10.2011
PASSED IN MVC NO.7216 OF 2009 ON THE FILE OF XVIII
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER,
2
MACT-4, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is preferred by the claimant challenging
the judgment and award dated 19.10.2011 in
MVC.NO.7216/2009 on the file of the MACT-4, Bengaluru,
for seeking enhancement of compensation.
2. Brief facts of the case are as under:
On 28.08.2009 at about 8.00 pm when the appellant
was riding motor cycle bearing No.KA-02-EW-7966 near
Ahmed Plaza, Hosur Road, at that time, driver of the
tempo bearing No.KA-04-A-318 came with high speed in a
rash and negligent manner and suddenly stopped in the
middle of the road without observing traffic signals, due to
which, the appellant's vehicle came from back side and
dashed against the said tempo and the appellant sustained
grievous injuries and took treatment in the hospital.
3. The claim petition was filed by the appellant
before the Tribunal claiming compensation. The Tribunal
allowed the claim petition in part and awarded
compensation of Rs.1,63,760/- with interest at 6% p.a
from the date of petition till the date of deposit. Being
aggrieved by the same, the appellant has preferred the
appeal before this Court seeking enhancement of
compensation.
4. Learned counsel appearing for the
appellant/claimant submitted that the amount of
compensation awarded under various heads are not
sufficient. Therefore, prays for enhancement considering
the nature of injuries sustained and also on other factors.
5. On the other hand, Sri K.S.Lakshminarasappa,
learned counsel appearing for respondent No.2-Insurance
Company vehemently submitted that the Tribunal has
rightly and correctly awarded the compensation under
various heads, which needs no interference. Therefore,
prays to dismiss the appeal.
6. Further, submitted that, even though, the
appellant has produced the appointment letter as per
Ex.P.6, the author of the said document has not been
examined. Therefore, what is the salary stated in Ex.P.6
cannot be taken into consideration and at the most, the
notional income as per the chart recognized by the
Karnataka State Legal Service Authority can be
considered. Further submitted that the Tribunal has
correctly considered the compensation under various
heads, which needs no interference. Therefore, prays for
dismissal of the appeal.
7. The Tribunal has awarded the compensation
under various heads as under:
Pain and sufferings Rs.30,000/-
Loss of amenities & Happiness Rs.20,000/-
Medical and incidental charges Rs.12,000/-
Loss of earnings during the period of Rs.9,000/-
treatment
Loss of future earnings due to disability Rs.77,760/-
Future medical expenses Rs.15,000/-
Total Rs.1,63,760/-
8. The appellant had sustained the injuries which
is stated in Ex.P.5-wond certificate and also the doctor who
was examined as P.W.2 had examined the appellant and
deposed that the appellant had sustained the following
injuries:
1. Comminuted fracture shaft of left femur;
2. Intra articular fracture distal end left radius;
3. CLW over proximal leg;
4. non concussive head injury.
9. Therefore, upon considering the nature of
injuries sustained by the appellant as above stated the
amount of compensation awarded by the Tribunal at
Rs.30,000/- towards "pain and suffering" is inadequate.
Hence, the same needs to be enhanced. Accordingly, it is
enhanced to Rs.70,000/- under the head "pain and
suffering".
10. Further, the Tribunal has awarded the
compensation of Rs.20,000/- towards "loss of amenities
and happiness", which is not sufficient. Therefore, the
compensation of Rs.40,000/- is awarded under the said
head.
11. The amount of Rs.12,000/- is awarded towards
"medical and incidental charges" as per the evidence on
record. Therefore, the same is kept in tact, which needs no
interference.
12. The Tribunal has awarded Rs.9,000/- towards
"loss of earning during the period of treatment" by taking
the income of the appellant at Rs.3,000/- per month for
three months, but as discussed above, in the absence of
evidence, the notional income has to be considered as per
the chart recognized by the Karnataka State Legal Service
Authority considering the accident occurred in the year
2009. Therefore, the income is taken at Rs.5,000/- p.m.
Therefore, considering the nature of injuries sustained by
the appellant, the appellant has taken treatment for five
months. Accordingly, Rs.25,000/- (Rs.5,000/- x 5
months) is awarded under the head "loss of earnings
during treatment".
13. The Tribunal has awarded Rs.77,760/- towards
"loss of future earnings due to disability", which is on the
lower side. The Tribunal has considered the income of the
appellant at Rs.3,000/- p.m. notionally and disability taken
at 12%, which is not correct. The income of the appellant
is taken at Rs.5,000/- notionally per month by following
the income chart prepared by the Karnataka State Legal
Service Authority. The doctor who was examined as P.W.2
had deposed that the appellant has sustained 23% of
permanent disability. The doctor-P.W.2 had assessed the
disability at 23%, but the Tribunal without assigning any
reason has taken the disability to 12%, which is not
correct. Therefore, the Tribunal has committed an error.
Therefore, loss of future earning capacity due to disability
is recalculated as under:
Rs.5,000/- x 23% x 18 x 12 = Rs.2,48,400/-
14. Further for removal of the implants, the
appellant is needed some more money and the doctor has
stated that he is required Rs.50,000/- for removal of
implants. Therefore, accordingly, upon considering the
year of accident and expenses to be incurred for removal
of implants a sum of Rs.30,000/- is awarded under the
head "future medical expenses".
15. The appellant is entitled to the compensation
as follows:
Pain and sufferings Rs. 70,000/-
Loss of amenities & Happiness Rs. 40,000/-
Medical and incidental charges Rs. 12,000/-
Loss of earnings during the period of Rs. 25,000/-
treatment
Loss of future earnings due to disability Rs.2,48,400/-
Future medical expenses Rs. 30,000/-
Total Rs.4,25,400/-
16. The Tribunal has awarded the compensation of
Rs.1,63,760/-, but the appellant is entitled to total
compensation of Rs.4,25,400/-. Hence, the appellant is
entitled to enhanced compensation of Rs.2,61,640/-
(Rs.4,25,400 - Rs.1,63,760). Therefore, the appellant is
entitled to enhanced compensation of Rs.2,61,640/-
along with interest at the rate of 6% per annum from the
date of petition till the date of realization.
17. Accordingly, I pass the following :
ORDER
Appeal is allowed in part.
The appellant is entitled to enhanced compensation
of Rs.2,61,640/- along with the rate of interest at 6% per
annum from the date of petition till the date of realization,
in addition to what has been awarded by the Tribunal.
Draw award accordingly.
Sd/-
JUDGE
PB
