Karnataka High Court

Manjunath @ Manjegowda vs Yuvaraja V on 25 May, 2022

Bench: Hanchate Sanjeevkumar

                          1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 25TH DAY OF MAY, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

              M.F.A.NO.4687/2017 (MV)

BETWEEN:

MANJUNATH @ MANJEGOWDA,
S/O NANJEGOWDA,
AGED ABOUT 28 YEARS,
R/A BELASINDA VILLAGE,
KASABA HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT.
                                     ... APPELLANT
(BY SRI RAJARAMA SOORYAMBAIL, ADVOCATE)

AND:

1.     YUVARAJA V.,
       S/O VENKATESH,
       R/A BAGURU VILLAGE AND HOBLI,
       CHANNARAYAPATNA TALUK,
       HASSAN DISTRICT.

2.     MANAGER,
       BAJAJ ALLIANZ INSURANCE CO. LTD.,
       T.B.R. TOWER, 1ST CROSS,
       NEAR NEW MISSEN ROAD,
       BANGALORE.
                                   ... RESPONDENTS

(BY SRI P.B. RAJU, ADVOCATE FOR R2
R1-NOTICE HELD SUFFICIENT V/O DT:30.11.2017)
                               2


     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT    AGAINST     THE    JUDGMENT    AND    AWARD
DATED:10.05.2017 PASSED IN MVC NO.948/2011 ON THE
FILE OF THE 4TH ADDITIONALJ DISTRICT AND SESSIONS
JUDGE,     HASSAN       DISTRICT    (SITTING     AT
CHANNARAYAPATNA), PARTLY ALLOWING THE CLAIM
PETITION    FOR     COMPENSATION    AND    SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.,


     THIS M.F.A. COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal is filed under Section-173(1) of the

Motor Vehicles Act, 1988 (hereinafter referred to as 'M.V.

Act' for short), by the appellant-claimant challenging the

judgment and award dated 10.05.2017, passed in MVC

No.948/2011, on the file of 4th Additional District And

Sessions Judge, Hassan, seeking enhancement

(hereinafter referred to as the 'Tribunal' for short).

Brief facts:

2. On 05.04.2011, at about 2.00 p.m., on Baguru

Road, near Gooranahalli ditch at Channarayapatna town, a

bike bearing registration No.KA-03-HJ-3819, ridden by its

rider in a rash and negligent manner, dashed the appellant

while he was walking on the side of the road and as a

result of said impact, the appellant sustained injuries and

he had taken treatment at General Hospital at

Channarayapatna, Mangala Hospital, Hassan as an

inpatient. The appellant had incurred medical expenses

and incidental expenses of Rs.2,50,000/-.

3. Hence, a claim petition was filed by the appellant

under Section-166 of the M.V. Act, claiming compensation

for the injuries sustained in the accident. On issue of

notice, Respondent No.1, owner of the offending motor

bike remained absent and was placed exparte before the

Tribunal. Respondent No.2 who is the insurer of the

offending motorbike filed the written statement. The

Tribunal on appreciating the materials on record, allowed

the petition in part, and awarded a compensation of

Rs.2,90,000/-, along with interest at 9% per annum from

the date of petition till the date of deposit. The Tribunal

held respondent No.2 therein, liable to pay the

compensation.

4. The learned counsel for the appellant

submitted that the quantum of compensation awarded

under various heads is on lesser side. Therefore, prays for

enhancement of the compensation. Further, the learned

counsel for the appellant submitted that the Tribunal has

not awarded compensation under the head 'Loss Of

Earning Capacity due to disability' suffered by the

appellant, as he is not able to do Hotel and Agricultural

work as before. Therefore, prays for grant of compensation

under the head 'loss of earning capacity due to disability'.

5. On the other hand, the learned counsel

appearing for the second respondent - insurance company

submits that the quantum of compensation awarded by the

Tribunal is correct and appropriate and there is no ground

for enhancement. That the compensation amount as

awarded by the Tribunal is sufficient and adequate and

therefore prays for dismissal of the appeal.

6. Heard arguments of the learned counsel for the

appellant and the learned counsel for respondent No.2 -

insurance company and perused the materials on record.

7. The compensation awarded by the Tribunal

under various heads are as follows:

 Pain And Suffering                                   :    Rs.         50,000/-
 Medical Expenses                                     :    Rs.         80,000/-
 Attendant Charges, diet, nourishment :                    Rs.         50,000/-
 Conveyance
 Loss of income during laid up period                 :    Rs.         10,000/-
 Physical disability, loss of amenities               :    Rs.        1,00,000/-
                                         TOTAL :           Rs. 2,90,000/-

8. The Tribunal has not awarded compensation

under the head 'loss of income due to disability'.

Exhibit-P3 is the Wound Certificate, which shows the

appellant had sustained the following injuries:

"i. Fracture of L1, Vertebra with Paraphrasis with bowel and bladder involvement, ii. Abrasion over both knee, iii. Abrasion over both knee"

9. The Doctor, PW-2 had stated in his evidence

that the appellant had suffered disabilities as follows:

"i. Spine Movements restricted and painful, Not able to bend and lift the weight, ii. X-ray shows slightly mal-union of fracture and L1 vertebra.

iii. The Petitioner has 50% disability."

10. The Tribunal has not awarded any

compensation under the head 'loss of earning capacity due

to disability', which the appellant was entitled. PW-2,

Doctor has stated that the appellant had suffered 50% of

the disability. Even though PW-2 has clearly stated that

the appellant has suffered 50% disability, the same was

not considered by the Tribunal. The appellant has suffered

considerable functional disability affecting his avocation of

Hotel and agricultural work. Therefore, by applying

principles laid down by the Hon'ble Apex Court in the case

of RAJ KUMAR VS. AJAY KUMAR AND ANOTHER

and 19, wherein it was held that compensation under

the head 'Loss Of Earning Capacity Due To

Disability' can be considered by considering the

'Functional Disability'. This Court is of the opinion that

the nature of injuries and the avocation of the appellant,

and then in what way the disability is affecting the earning

capacity is to be considered. This cannot be done by

mathematical calculation. This can be done by pragmatic

approach considering the practical aspect involved in the

case. Considering the injuries suffered, coupled with the

avocation of the appellant and the disability as stated by

PW-2, Doctor, this Court is of the opinion that the

appellant has suffered 15% 'functional disability'.

11. The accident has occurred in the year 2011,

the appellant has not produced any evidence to show his

income. Therefore, as per the Chart prepared by the

Karnataka State Legal Services Authorities, the

notional income would be Rs.6,500/- per month for the

year 2011. The age of the appellant as on the date of the

accident was 28 years. Therefore, the appropriate

multiplier applicable would be '17' as per the judgment of

the Hon'ble Apex Court, in the case of Smt.Sarla Verma

& Others. Vs. Delhi Transport Corpn And Another

reported in AIR 2009 SC 3104. Therefore, the

compensation under the head 'Loss Of Earning Capacity

Due to Disability' is recalculated and quantified as follows:

Rs.6,500 x 15 / 100 x 17 x 12 = Rs.1,98,900/-

12. Further, considering the nature of injuries

suffered by the appellant, he might not have been able to

work for atleast three months. Therefore, compensation

towards 'loss of income during laid up period' is to be

awarded. The same is calculated as follows:

Rs.6,500 x 3 = Rs.19,500/-

13. The compensation awarded by the Tribunal

under various other heads are correct and appropriate, and

needs no interference.

14. Hence, the appellant is entitled for a total

compensation, under various heads as follows:

Pain And Suffering : Rs. 50,000/- (kept in tact) Medical Expenses : Rs. 80,000/- (kept in tact) Attendant Charges, diet, : Rs. 50,000/- (kept in tact) nourishment Conveyance Physical disability, loss of : Rs. 1,00,000/- (kept in tact) amenities 'Loss Of Earning Capacity : Rs. 1,98,900/- Due to Disability' (Rs.6,500 x 15 / 100 x 17 x 12) Loss of earnings during laid : Rs. 19,500/-

of period (Rs.6,500 x 3 months)

TOTAL : Rs. 4,98,400/-

19. Therefore, the appellant is awarded a total

compensation of Rs.4,98,400/- as against the

compensation awarded by the Tribunal at Rs.2,90,000/-.

Hence, the appellant is entitled for an additional

compensation of Rs.2,08,400/- (Rs.4,98,400 -

Rs.2,90,000), along with interest at 6% per annum from

the date of filing of the petition till deposit.

20. Accordingly, I pass the following:

ORDER

i. The appeal is allowed in part.