Sri H S Rajanna vs The Manager
2022 Latest Caselaw 13138 Kant

                          1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 18TH DAY OF NOVEMBER, 2022

                       BEFORE

         THE HON'BLE Mr. JUSTICE H.P. SANDESH

             M.F.A. NO.644/2016 (MV-I)

BETWEEN:

SRI. H.S.RAJANNA,
S/O LATE SHANKARAPPA,
AGED ABOUT 63 YEARS,
NO.272, 7TH CROSS, HMT LAYOUT,
NAGASANDRA POST,
BANGALORE-73.
PERMANENT ADDRESS:
NO.124-1, BHUVANESHWARINAGAR,
T.DASARAHALLI, BANGALORE-54.
                                         ...APPELLANT
(BY SRI. MAHADEVA SWAMY, ADVOCATE)

AND:

1.     THE MANAGER,
       THE UNITED INDIA INSURANCE CO.LTD.,
       R.O. KRISHI BHAVANA, 5TH FLOOR,
       HUDSON CIRCLE, BANGALORE-02.

2.     UMASHANKAR,
       S/O RAMANNA,
       NO.369/1, 2ND MAIN, 2ND CROSS,
       MANJUNATHANAGAR, TUMKUR ROAD,
       NAGASANDRA POST, BANGALORE-73.

                                     ...RESPONDENTS
(by SRI.P.B.RAJU, ADVOCATE FOR R-1
                                   2


V/O DATED 23.09.2019 NOTICE TO R-2
IS HELD SUFFICIENT)

     THIS M.F.A., IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
22.02.2014 PASSED IN MVC NO.2788/2012 ON THE FILE
OF THE COURT OF SMALL CAUSES AND JUDGE, 26TH
ACMM, BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION    FOR     COMPENSATION    AND   SEEKING
ENHANCEMENT OF COMPENSATION.


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


                           JUDGMENT

Heard the learned counsel appearing for the

appellant and the learned counsel appearing for the

respondent No.1.

2. This appeal is filed challenging the judgment and

award dated 22.02.2014 passed in M.V.C.No.2788/2012

on the file of Motor Accident Claims Tribunal, Court of

Small Causes (SCCH-9) and XXVI ACMM, Bengaluru ('the

Tribunal' for short).

3. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

4. The factual matrix of the case of the claimant

before the Tribunal is that, on 21.03.2012 at about 9.00

p.m., an accident occurred when the claimant/petitioner

was proceeding on his motorcycle, at that time, the driver

of tractor, who drove the same in a rash and negligent

manner came from behind and dashed against the

claimant's motorcycle, as a result, he has sustained

grievous injuries on his right foot, abdomen region and

other parts of the body. Immediately after the accident he

was shifted to Premier Sanjeevani hospital for treatment

and he was subjected to surgery and has spent

Rs.70,000/- towards medical expenses. Prior to the

accident, he was working as a Carpenter and was earning

a sum of Rs.300/- per day. Due to the accidental injuries

he has sustained permanent injuries.

5. The claimant in order to substantiate his case,

has examined himself as PW.1 and got marked the

documents at Exs.P.1 to Ex.P.9. On the other hand, the

respondent No.1- Insurance company examined two

witnesses as RW.1 and RW.2 and got marked documents

Exs.R1 to Ex.R5. Respondent No.2 remained absent and

placed exparte.

6. The Tribunal, after considering both oral and

documentary evidence placed on record, awarded a

compensation of Rs.82,100/- with interest at 6% p.a. and

liability fastened on the insured-respondent No.2, coming

to the conclusion that the driver was having driving license

to drive tractor for commercial purpose and not authorized

for agricultural purpose. Hence, the present appeal is filed

by the claimant questioning the quantum of compensation

and liability fastened on the insured.

7. The main contention of the learned counsel

appearing for the claimant before this Court is that the

Tribunal has committed an error in awarding compensation

of Rs.82,100/-. Though he had suffered two fractures, the

Tribunal awarded only Rs.20,000/- on the head of 'pain

and suffering' and Rs.52,034/- awarded towards 'medical

expenses' and Rs.10,000/- awarded towards 'conveyance,

food and other expenses'. The Tribunal has not awarded

compensation on the heads of 'loss of income during laid-

up period', 'other incidental expenses' and 'future loss of

income'. The learned counsel also submits that the

Tribunal has committed error by fastening the liability on

the insured. The Trailer also attached to the tractor. The

Tribunal ought not to have absolved liability of the

insurance company, since he was having effective driving

license to drive the tractor and trailer, hence, it requires

interference of this Court.

8. Per contra, the learned counsel appearing for

respondent No.1- Insurance company submits that the

Tribunal has rightly taken note of evidence of RW.1 and

RW.2, who have been examined and rightly comes to the

conclusion that the driver was having driving license to

drive the tractor for using the same for commercial

purpose and not for agricultural purpose and rightly

fastened the liability on the insured. Hence, it does not

require any interference of this Court.

9. Having heard the arguments of the respective

counsel and on perusal of the material available on record,

no doubt, the Tribunal considered the evidence of RW.1

and RW.2 and the fact that he was having driving license is

not in dispute. The conclusion arrived by the Tribunal that

he was not having driving license to drive the tractor-

trailer for agricultural purpose and the fact that driving

license to drive for commercial purpose in respect of both,

is not in dispute.

10. Admittedly, the vehicle involved in the accident

is LMV. Such being the case, he is having driving license

to drive the tractor-trailer. He is having driving license, but

not to drive the tractor-trailer for agricultural purpose is

not a fundamental breach and it is only infraction and

liability fastened on the insured is erroneous and it

requires interference.

11. The second contention of the claimant before

this Court is that the compensation awarded is meagre and

the Tribunal ought to have taken note of injuries on his

right foot, abdomen region and other parts of the body. As

per Ex.P.7-discharge summary, it is clear that he had

sustained grievous injuries. The Tribunal has considered

the evidence available on record and in paragraph No.14 of

the judgment, it is disclosed that the claimant /petitioner

did not examine the treated doctor wherein he took

treatment in the hospital. The non-examination of the

doctor, as regards claimant sustaining permanent disability

has not been proved, hence, question of considering the

future loss of earnings does not arise. However,

considering the medical expenses and also said injuries,

the Tribunal has awarded compensation of Rs.82,034/-.

The Tribunal has failed to take note of nature of injuries

suffered by the claimant in terms of wound certificate as

he sustained injuries to right foot, abdomen region and

other parts of the body, fracture of L1, L2 and L3 and also

hematoma over the back. Hence, The Tribunal has

committed error awarding only an amount of Rs.20,000/-

on the head of 'pain and sufferings'. Having considered

the fracture of L1, L2 and L3, it is appropriate to award

Rs.60,000/- on the head of 'pain and sufferings' as

against Rs.20,000/-.

12. The Tribunal awarded an amount of Rs.52,034/-

on the head of 'medical expenses' based on the

documentary evidence as per Exs.P7 to 9 that he took

treatment in the hospital for a period of five days. Hence,

it does not require any interference.

13. The Tribunal has not awarded compensation on

the head of 'loss of income during laid-up period'. He was

working as carpenter and used to earn Rs.300/- per day,

after the accident the claimant/appellant suffered fracture

of L1, L2 and L3 which required minimum three months to

recover and he had been taken rest for that period and lost

his income . The accident has taken place in the year

2012, hence, it is appropriate to take income of Rs.7,000/-

p.m. The Tribunal ought to have taken the loss of income

during laid-up period for four months, at Rs.7,000/- p.m.

which comes to Rs.28,000/- (Rs.7,000X4).

14. The Tribunal awarded an amount of Rs.10,000/-

on the head of 'food, conveyance and other expenses

during treatment period' , having considered the claimant

was aged 60 years at the time of accident and he was

inpatient for a period of five days, which in my opinion, is

just and proper.

15. In all, the claimant/appellant is entitled for a

sum of Rs.1,50,034/- as against Rs.82,034/- awarded by

the Tribunal.

16. In view of the discussions made above, I pass

the following:

ORDER

i. The appeal is allowed in-part.

ii. The impugned judgment and award of the Tribunal dated 22.02.2014 passed in M.V.C.No.2788/2012 on the file of Motor Accident Claims Tribunal, Court of Small Causes (SCCH-9) and XXVI ACMM, Bengaluru, is hereby modified granting compensation of Rs.1,50,034/- as against Rs.82,034/- awarded by the Tribunal with interest at 6% per annum from the date of petition till the date of deposit.

      iii.   The       respondent        No.1-       Insurance
             company       is    directed     to     pay   the
             compensation         amount      with     interest
             within six weeks from today.

      iv.    The Registry is directed to send the
             records      to    the    concerned     Tribunal,
             forthwith.




                                                    Sd/-
                                                   JUDGE


SKS