Karnataka High Court
Santhosh N vs Dasu Shetty on 27 May, 2022
Bench: B.Veerappa, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2022
:PRESENT:
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL NO. 9323/2018 (MV-I)
BETWEEN:
SANTHOSH N
S/O. NAGARAJA POOJARY
AGED ABOUT 26 YEARS
R/AT NIDDERI VATYALA
PERDOOR VILLAGE
UDUPI TALUK & DISTRICT ...APPELLANT
(BY MS.NAZEEFA M MULLA, ADVOCATE FOR
SRI H.PAVANA CHANDRA SHETTY, ADVOCATE)
AND:
1. DASU SHETTY
S/O. SIDDU SHETTY
AGED ABOUT 67 YEARS
R/AT MULLUGUDDE, KALAI
DARKASU SHIVAPURA VILLAGE
KARKALA TALUK, UDUPI DISTRICT
2. THE UNITED INDIA INSURANCE CO. LTD.
MANGALORE, REP. BY ITS NEAREST
DIVISIONAL OFFICE, DIVISIONAL MANAGER
JEWEL PLAZA, MARUTHI VITHIKA
OPP: SHRINIDHI MEDICAL
NEAR CITTARANJAN CIRCLE
UDUPI DISTRICT ...RESPONDENTS
(BY SRI S.KRISHNA KISHORE, ADVOCATE FOR R2
NOTICE TO R1 DISPENSED WITH V/C/O.DT: 03.06.2021)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 02.04.2018 PASSED
BY THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL &
PRINCIPAL SENIOR CIVIL JUDGE, UDUPI IN M.V.C.NO.80/2016.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THROUGH PHYSICAL HEARING/VIDEO
CONFERENCING, THIS DAY, B. VEERAPPA J., MADE THE
FOLLOWING:
JUDGMENT
The claimant has filed the present miscellaneous first
appeal for enhancement against the impugned judgment and
award dated 02.04.2018 made in MVC No.80/2016 on the file
of the Additional Motor Accidents Claims Tribunal & Principal
Senior Civil Judge, Udupi awarding total compensation of
Rs.3,62,776/- with 7% interest from the date of the petition
till the date of realization.
2. The facts of the case:
(a) The claimant filed claim petition under the
provisions of Section 166 of the Motor Vehicles Act, 1988
claiming compensation of Rs.63,04,700/- in view of fracture
and grievous injuries sustained in the motor vehicle accident
contending that on 25.11.2014 at about 4.00 p.m., the
claimant along with one Udaya Shetty was proceeding in a
motor cycle bearing Registration No.KA-20EA-9564 as a
pillion rider from Perdoor side towards Udupi via Kolalagiri.
(b) The rider of the motorcycle was riding the vehicle
in a high speed, rash and negligent manner and applied
brake while crossing hump without reducing the speed. As a
result, the claimant slipped from the motor bike and fell on
the road and sustained grievous injuries. Immediately he was
shifted to KMC Hospital, Manipal. He has sustained grievous
injuries and he has undergone surgery to the left lower limb.
During surgery internailing was done to rule out further
complication at the operated side.
(c) The claimant was treated as inpatient till
05.12.2014. At the time of discharge the wounds were not
healed up. The claimant was readmitted to the hospital as
inpatient till 22.12.2014. The claimant was advised to receive
the follow up treatment. The claimant has spent considerable
amount for the purpose of medical treatment, food,
nourishment, attendant and conveyance charges. Therefore
seeks to allow the claim petition.
3. Respondent No.2 the Insurance Company filed
the statement of objections denying the averments made in
the claim petition and contended that the accident occurred
due to the negligence on the part of the claimant. It is seen
that he jumped from the motor bike. Therefore he is solely
responsible for the accident. Further he denied the income,
avocation, amount spent on food, nourishment and medical
expenses. It is further contended that the offending
motorcycle rider had no effective and valid driving license.
Therefore, sought rejection of the claim petition.
4. On the basis of the aforesaid pleadings, the
Additional Motor Accidents Claims Tribunal framed the
following issues:
(i) Whether the petitioner proves that on
25.11.2014 at about 4.00 p.m. while he was
proceeding in a motor bike bearing
Reg.No.KA-20EA-9564 as a pillion rider from
Perdoor side towards Udupi side and when
they reached near Kolalagiri High School,
Uppor village, Udupi the rider of the said
motor bike on seeking the hump, applied
sudden break without reducing the speed, in
the result, the petitioner fell down on the
road and sustained grievous injuries?
(ii) Whether the petitioner is entitled for
compensation? If so, what is the quantum?
From whom payable?
(iii) What award or order?
5. In order to establish the case of the claimants,
the claimant got examined himself as PW.1 and the doctor as
PW.2 and got marked documents Ex.P1 to Ex.P17.
Respondent No.2 has not adduced any evidence.
6. The Tribunal after considering both oral and
documentary evidence on record has recorded the finding
that the claimant has proved that the accident occurred on
25.11.2014 at 4.00 p.m. while he was proceeding in a motor
bike bearing registration No.KA20EA-9564 as pillion rider due
to rash and negligent riding of the rider of the motor bike
who suddenly applied the brake without reducing the speed
when hump occurred, thereby he sustained grievous injuries.
Therefore the claimant is entitled to the compensation.
Accordingly, the Tribunal awarded total compensation of
Rs.3,62,776/- with interest at 7% per annum.
7. Aggrieved by the quantum of compensation
awarded by the Tribunal, the present appeal is filed by the
claimant for further enhancement of compensation. The
Insurance Company has not filed any appeal against the
impugned award passed by the Tribunal.
8. We have heard the learned Counsel for the
parties to the lis.
9. Ms.Nazeefa M.Mulla, learned Counsel for the
appellant contended that the impugned judgment and award
passed by the Tribunal awarding compensation is very
meager and requires further enhancement. She further
contended that the claimant is examined as PW.1 and has
specifically stated on oath that he was working as salesman
and earning Rs.25,000/- per month. The Tribunal has erred
in taking the income of the claimant at Rs.8,000/- which is
contrary to the material on record. She further contended
that the Tribunal has not awarded any compensation towards
amenities, future medical expenses and the award passed in
respect of other heads are on lower side and requires further
enhancement and therefore sought to allow the appeal.
10. Per contra, Sri S.Krishna Kishore, learned Counsel
for respondent No.2-the Insurance Company submits that the
Tribunal was justified in awarding the compensation and
contended that though the claimant claims that he was
working as salesman and earning Rs.25,000/- per month has
not disclosed under whom he was working as salesman. He
has not examined the owner under whom he was working. He
has not produced any material documents about income to
show that he was earning Rs.25,000/- per month. In the
absence of the same, the Tribunal was justified in taking the
income at Rs.8,000/- per month. He further contended that
as the accident occurred in 2014, the Tribunal considering the
entire materials on record has awarded compensation in
respect of all other heads, therefore sought for dismissal of
the appeal.
11. In view of the aforesaid rival submissions, the
point that arises for consideration of this Court in the present
appeal is:
"Whether the claimant has made out case for
further compensation in the present case"?
12. We have considered the submissions of the
parties and given our anxious consideration and perused the
entire materials on record carefully.
13. It is undisputed fact that on 25.11.2014 when the
claimant and one Udaya Shetty who was the rider of the
motorcycle bearing registration No.KA20EA-9564 was riding
the vehicle and due to the rash and negligent riding of the
rider of the motorcycle, the claimant has sustained the
fracture as stated by PW.2 the doctor and issued wound
certificate as per Ex.P6. The injuries sustained by the
claimant are as follows:
1. He has 0-130 degrees of flextion in his left knee
joint
2. He has 0-30 degrees of dorsiflextion and plantar
flexion movements in his left ankle joint
3. He has scarring of the skin with reduced
sensation over the middle 3rd of the left leg.
4. He has grade IV power in his left ankle
dorsiflexors.
5. His x-ray examination revealed union of the
fracture.
14. The same is evidenced by the material documents
Ex.P1 the first information report and Ex.P7 the charge sheet
filed against the driver of the motorcycle. Admittedly, the
Insurance Company has not challenged the charge sheet filed
by the jurisdictional police against the driver of the
motorcycle. Thereby the accident occurred due to the rash
and negligent riding of the rider has been proved.
15. The claimant though claimed that he was working
as salesman and earning Rs.25,000/- per month, except the
oral assertion, he has not produced any material documents
before the Court to prove that he was earning Rs.25,000/-
per month. In the absence of the same, the notional income
of the claimant has to be taken as per the chart prepared by
the Karnataka Legal Services Authority.
16. PW.2 the doctor who examined the claimant has
deposed that the claimant sustained open fracture of left tibia
and fibula and it is grievous in nature and accordingly he has
issued Ex.P6 the wound certificate which clearly depicts that
the injuries and the fracture is sustained by the claimant. He
further deposed that wound debridement, external fixator
application done on 25.11.2014. The external fixator
readjustment was done on 03.12.2014. The claimant was
discharged on 05.12.2014 and again readmitted on
17.12.2014 for reassessment and discharged on 22.12.2014.
PW.2 further deposed that he reviewed the claimant on
13.01.2015, 16.02.2015 and 30.03.2015. The claimant was
readmitted on 18.05.2015. The Fixator readjustment and
marrow injection given on 21.05.2015. The claimant was
again discharged on 22.05.2015. The claimant was
readmitted on 30.06.2015. The fixator removal, PTB cast
application done on 02.07.2015. The claimant again was
discharged on 04.07.2015. He was reviewed again on
18.08.2015, 06.10.2015, 01.12.2015 and 01.03.2016. The
same is not in dispute.
17. PW.2 the doctor also stated about the injuries
sustained and the percentage of disability at 21% of left
lower limb and taking into consideration the above said
aspect, the disability to the whole body comes to 10.5%
rounded off to 10%. The same is in accordance with law.
18. Admittedly, the accident occurred on 25.11.2014.
As on that date, the notional income fixed is Rs.8,500/-.
Considering the age of the claimant, the multiplier applicable
is 17, and taking notional income at Rs.8,500/- per month
and the disability at 10% as spoken to by the doctor PW.2,
the actual loss of future income would be 8,500 x 12 x
17x10% which comes to Rs.1,73,400/-.
19. Considering the entire materials on record, the
claimant has made out the case to further enhance the
compensation. Accordingly, the point raised in this appeal is
answered in the affirmative. After reassessing the entire
materials on record, the claimant is entitled to just
compensation as under:
Sl. Heads Amount
No. in Rs.
1. Pain and agony 75,000/-
2. Loss of future income 1,73,400/-
3. Loss of income during laid up 34,000/-
period
4. Medical expenses (as per the 87,576/-
Tribunal)
5. Conveyance, nourishment, 30,000/-
food and attendant charges
6. Loss of amenities 50,000/-
7. Future medical expenses 25,000/-
Total 4,74,976/-
20. In all the claimant is entitled to total
compensation of Rs.4,74,976/- minus the compensation
awarded by the Tribunal at Rs.3,62,776/-. The enhanced
compensation would be Rs.1,12,200/-.
In view of the above, we pass the following:
ORDER
The appeal is allowed in part.
The impugned judgment and award dated 02.04.2018
passed by the Additional Motor Accidents Claims Tribunal &
Principal Senior Civil Judge, Udupi in MVC No.80/2016 is
hereby modified.
The claimant is entitled to enhanced total compensation
of Rs.1,12,200/- with 7% interest per annum from the date
of deposit till the date of realization.
The insurance company is directed to deposit the
enhanced compensation with interest within a period of four
weeks from date of receipt of this order.
The trial Court records to be transmitted forthwith.
No order as to costs.
Ordered accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
KSR
