Karnataka High Court
H. M. Nandeesh vs Lokesh on 31 May, 2022
Bench: B.Veerappa, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST 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.5099/2016 (MV/I)
BETWEEN:
H.M. NANDEESH,
S/O LATE MADAPPA,
AGED ABOUT 38 YEARS,
R/AT HOREYALA VILLAGE,
BEGURU HOBLI,
GUNDLUPETE TALUK,
PRESENTLY RESIDING AT,
MAHADESHWARA LAYOUT,
NANJANAGUDU TOWN,
MYSORE DISTRICT - 571 301.
...APPELLANT
(BY SMT. B.N. MANJULA, ADVOCATE FOR
SRI. NAGARAJ R.C., ADVOCATE)
AND:
1. LOKESH,
S/O SHANKAR,
AGED ABOUT 30 YEARS,
R/AT NO.9, 3RD MAIN,
2
SRINIVASANAGARA,
BENGALURU - 560 050.
PRESENTLY RESIDING AT
ADAKANAHALLI VILLAGE,
CHATHRA HOBLI,
NANJANAGUD TALUK - 571 301.
2. UNITED INDIAN INSURANCE COMPANY,
NO.1ST FLOOR, 3RD CROSS,
100 FEET, RING ROAD,
HOSAKEREHALLI,
BENGALURU - 560 035,
REP. BY ITS BRANCH MANAGER.
...RESPONDENTS
(BY SRI K. SWAM., ADVOCATE FOR R1
BY SRI JWALA KUMAR, ADVOCATE FOR R2)
****
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 29.01.2016, PASSED IN
MVC NO.86/14 ON THE FILE OF THE SENIOR CIVIL JUDGE,
AND JMFC, MACT, NANJANGUD, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION, THIS DAY, K.S.HEMALEKHA J.,
DELIVERED THE FOLLOWING:
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JUDGMENT
Though this appeal is listed for admission, with
the consent of learned counsel on both sides, it is
taken up for final disposal.
2. The present appeal is filed by the
injured/claimant, assailing the judgment and award
dated 29/01/2016, passed in MVC.No.86/2014, by the
Senior Civil Judge & MACT, Nanjangud (hereinafter
referred to as "the Tribunal" for short), seeking
enhancement of compensation.
3. The parties herein are referred to as per
their ranking before the Tribunal for the sake of
convenience.
4. The injured/claimant, filed the claim
petition under Section 166 of the Motor Vehicles Act,
1988 ("the Act" for short), seeking compensation of
Rs.32,00,000/- with interest at 18% p.a., on account
of injuries suffered in a road traffic accident that
occurred on 28/01/2014 at about 10.30 a.m., when
the injured/claimant was going by walk on the left
side of the road on Adakanahallihundi-Nanjangud
Main Road to go to Indus Fila Ltd., Tandya Industrial
Area, Nanjangud Taluk, at that time a motorbike
bearing registration No.KA-05/EK-2988 driven by
respondent No.1 came in a rash and negligent manner
and dashed against the petitioner, due to which the
injured/claimant sustained grievous injuries all over
the body and was hospitalized.
5. It is contended by the injured/claimant that
due to the accident, the injured/claimant is unable to
discharge his day-to-day work as he was doing earlier.
He was hale and healthy at the time of accident and
he was employed in Indus Fila Ltd., and was earning
Rs.18,000/- per month. As such, the injured/claimant
filed the claim petition seeking compensation.
6. In pursuance of notice issued by the
Tribunal, respondent Nos.1 and 2 appeared through
their respective counsel and filed their statement of
objections separately.
7. Respondent No.1/owner of the offending
vehicle denied the entire averments made in the claim
petition and sought for dismissal of the petition with
costs.
8. Respondent No.2/insurance company
contended that the offending vehicle was not insured
with the insurance company as on the date of the
accident and hence, sought to absolve the liability
fastened upon the insurance company. It is also
contended that that the compensation sought by the
claimant is on the higher side and that the accident
occurred due to negligence on the part of the
injured/claimant and there is no liability on the part of
the insurance company to pay the compensation and
thus sought to dismiss the claim petition.
9. On the basis of the pleadings, the Tribunal
framed following issues:
ISSUES
(i) Whether the petitioner proves that, he
sustained injuries in a road traffic
accident occurred on 28/01/2014 at
about 10.30 a.m. near Adakanahallihundi
Village, Nanjangud-Adakanahallihundi
Main Road, NanjangudTaluk, due to rash
and negligent manner of riding of
motorbike bearing No.KA-05/EK-2988,
by the 1st respondent?
(ii) Whether the petitioner is entitled for
compensation? If so, how much and
from whom?
(iii) What order or award?
10. In order to substantiate his contention, the
claimant examined himself as PW.1 and examined the
orthopedic surgeon as PW.2 and got marked 54
documents at Exs.P-1 to P-54. On the other hand,
respondent No.2/insurance company did not let-in any
evidence. However, got marked Ex.R-1 issued by
respondent No.2/insurance company.
11. The Tribunal, on the basis of the pleadings,
oral and documentary evidence as well as the material
on record, held that the accident occurred due to rash
and negligent riding of the rider of the motorcycle
bearing registration No.KA-05/EK-2988 and due to the
impact of the accident, the claimant suffered grievous
injuries. Fastening the liability upon respondent
No.2/insurance company, the Tribunal awarded
compensation of Rs.2,42,000/- with interest at 6%
per annum from the date of petition till realization.
12. Being unsatisfied with the quantum of
compensation awarded by the Tribunal, the
injured/claimant has preferred the present
miscellaneous first appeal.
13. Heard the learned counsel for the parties to
the lis.
14. Smt. B.N.Manjula, learned counsel
appearing for Sri Nagaraja R.C., learned counsel for
the injured/claimant would contend that the Tribunal
has taken the income of the injured/claimant at
Rs.6,000/- without considering that the
injured/claimant was working as a Senior Manager in
Indus Fila Ltd., and was earning Rs.18,000/- per
month and thus awarding compensation under the
head loss of earning due to disability is much on the
lower side. It is further contended that Tribunal has
not taken into account Ex.P-6, the disability certificate
and the evidence of PW.2 doctor who has categorically
stated that the disability to the whole body is 48.53%.
Thus, the disability taken by the Tribunal at 8% is on
the lower side and it is sought to be re-assessed. The
compensation awarded under the other heads is also
much on the lower side and the same needs to be
enhanced and sought to allow the appeal.
15. Per contra, Sri Jwala Kumar, learned
counsel for respondent No.2/insurance company
would contend that the compensation awarded by the
Tribunal is just and proper and does not call for any
interference at the hands of this Court. It is
contended that the Tribunal has taken the income of
the injured/claimant at Rs.6,000/- per month, as the
claimant/injured has failed to produce any document
to the effect that he was earning Rs.18,000/- per
month as a Senior Manager and thus, the Tribunal
was justified in taking the income of the injured at
Rs.6,000/- per month. It is also contended that on
analyzing the oral and documentary evidence
available on record, the Tribunal has rightly awarded
the Compensation which does not call for any
interference and thus sought for dismissal of the
appeal.
16. Having heard the learned counsel for the
parties and on perusal of the material on record, the
only point that arises for our consideration is:
"Whether the claimant/injured has made
out a case for enhanced compensation
under the facts and circumstances of the
case?"
17. The date, time and occurrence of accident
on 28/01/2014 and due to rash and negligent riding of
the rider of the motorcycle bearing registration No.KA-
05/EK-2988 by respondent No.1, the injured/claimant
suffered injuries are not in dispute. The only dispute
is with regard to the quantum of compensation
awarded by the Tribunal. The Tribunal has taken the
income of the injured/claimant at Rs.6,000/- per
month as no documents are forthcoming to show that
the claimant was earning Rs.18,000/- per month as a
Senior Manager. It is relevant to note that other than
production of Ex.P-48 issued by Shivakumar Patil,
Deputy General Manager, HR & Admn., of Indus Fila
Ltd., no materials are forthcoming. In order to prove
Ex.P-48, the author of document nor the owner of
Indus Fila Ltd., is examined to prove the aspect of
income of the injured/claimant. In the absence of
proof of the actual income of the injured/claimant the
notional income as per the guidelines of the Karnataka
State Legal Services Authority, Bengaluru, notional
income to be taken for the accident that occurred in
the year 2015 is Rs.8,500/-. Hence, the notional
income of Rs.8,500/- is taken, as against the income
of Rs.6,000/- taken by the Tribunal.
18. PW.2, the orthopedic surgeon who treated
the claimant has deposed that there is permanent
disability to the extent of 48.53% to the knee joint
and fractures as per the wound certificate produced at
Ex.P-6, but the Tribunal has taken the disability at
8%. Considering the disability of the injured/claimant
at Ex.P-6, we are of the considered opinion that the
disability taken by the Tribunal at 8% is on the lower
side. Thus the disability at 15% needs to be taken
looking into the injuries suffered by the claimant.
Considering the age of the claimant to be 36 years,
the multiplier to be applicable is 15. Thus, the loss of
earning due to disability would come to Rs.2,29,500/-
(8,500 x 12 x 15 x 15%). Perusal of the judgment
and award shows that the Tribunal has awarded
meager compensation on the other heads, such as
loss of amenities, pain and suffering and no
compensation has been awarded under the head loss
of earning during the laid up period for three months.
Taking into consideration all these aspects, we are of
the considered view that the injured/claimant is
entitled for just and proper compensation as under:
Sl. Head of Compensation Amount/Rs
No.
1 Pain and sufferings 50,000/-
2 Medical expenses
(including diet, nourish-
ment, attendant charges 80,000/-
etc.)(as awarded by the
Tribunal)
3 Future medical expenses 30,000/-
as spoken to by the doctor
PW.2
4 Loss of earning due to
disability 2,29,500/-
5 Loss of amenities 25,000/-
6 Loss of earning during laid
up period 25,500/-
TOTAL 4,40,000/-
19. Thus, the injured/claimant is entitled for
compensation of Rs.4,40,000/- as against
Rs.2,42,000/- awarded by the Tribunal. Deducting
Rs.2,42,000/- out of Rs.4,40,000/-, the claimant is
entitled for enhanced compensation of Rs.1,98,000/-
with interest at the rate of 6% per annum from the
date of claim petition till the date of realization. Thus,
we answer the point framed by this Court partly in the
affirmative.
20. In the result, we pass the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award is
hereby modified. The injured/claimant is
entitled for compensation of Rs.4,40,000/-
as against Rs.2,42,000/- awarded by the
Tribunal. The injured/claimant is entitled
for enhanced compensation of
Rs.1,98,000/- with interest at the rate of
6% per annum from the date of claim
petition till the date of realization.
(iii) Respondent No.2/insurance company is
directed to deposit the enhanced
compensation amount of Rs.1,98,000/-
within a period of six weeks from the date
of receipt of a copy of this order with
proportionate interest. On such deposit,
the injured/claimant is entitled to withdraw
the entire enhanced compensation with
proportionate interest.
(iv) The trial Court record be transmitted to the
concerned Court forthwith.
(v) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
S*
