Swamy Naika vs Mahesh
2022 Latest Caselaw 12285 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 10TH DAY OF OCTOBER, 2022

                          BEFORE

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

                 M.F.A.NO.9711/2017 (MV-I)

BETWEEN:

SWAMY NAIKA,
S/O. SRINIVASAIAH,
AGED ABOUT 45 YEARS,
R/AT RANGASAMUDRA,
T. NARASIPURA TALUK
PRESENLTY R/AT C/O. BAGYAMMA,
HOSAMALANGI,
KOLLEGALA TALUK,
CHAMARAJANAGARA DISTRICT-571 303.
                                                ... APPELLANT

           (BY SRI SANATH KUMARA K.M., ADVOCATE)

AND:

1.     MAHESH,
       S/O LATE SIDDEGOWDA,
       MAJOR, R/O. NO.58,
       HITTUVALLI VILLAGE,
       T. NARASIPURA TALUK,
       MYSURU DISTRICT-571 101.

2.     THE DIVISIONAL MANAGER,
       HDFC-ERGO GENERAL INSURANCE CO. LTD.,
       2ND FLOOR, MYSORE TRADE CENTRE,
       OPP: KSRTC BUS STAND,
       B.N. ROAD, MYSORE-570 001.
                                          ... RESPONDENTS

           (BY SRI H.S. LINGARAJ, ADVOCATE FOR R2;
                         R1 IS SERVED)
                                   2



     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 20.04.2017 PASSED
IN MVC NO.420/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, &
JMFC, KOLLEGAL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND     SEEKING      ENHANCEMENT      OF
COMPENSATION.

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

                          JUDGMENT

Though this matter is listed for admission today, with the

consent of both the learned counsel it is taken up for final

disposal.

2. This appeal is filed challenging the judgment and

award dated 20.04.2017, passed in M.V.C.No.420/2015, on the

file of the Senior Civil Judge and JMFC, Kollegal ('the Tribunal'

for short).

3. The factual matrix of the case of the claimant is that

he met with an accident on 04.11.2015 and due to the impact,

he has suffered fracture of type III B open comminuted, fracture

of patella left knee and crush injury to left great toe and second

toe. The doctor who has been examined as C.W.2 has assessed

the disability of 40.2% to the left leg and the Tribunal has

considered the disability of 13.4% to the whole body and

considered his income as only Rs.7,000/- per month.

4. The learned counsel for the appellant would

vehemently contend that the income taken by the Tribunal is

very meager and has not awarded just and reasonable

compensation under all the heads and hence it requires

interference of this Court.

5. Per contra, the learned counsel for respondent No.2

submits that the Tribunal has rightly assessed the disability of

1/3rd and also awarded just and reasonable compensation and

not committed any error and hence it does not require any

interference of this Court.

6. Having heard the respective learned counsel and also

on perusal of the material available on record, the claimant has

suffered fracture of type III B open comminuted, fracture of

patella left knee and crush injury to left great toe and second

toe. He was an inpatient for a period of 4 days. Having

considered the nature of injuries, it is appropriate to award an

amount of Rs.50,000/- as against Rs.30,000/- under the head

pain and suffering.

7. The Tribunal has taken the disability of 13.4% and

hence it does not require interference of this Court. However,

the Tribunal committed an error in taking the income of

Rs.7,000/- per month instead of Rs.9,000/- per month in the

absence of documentary evidence and having considered the

same, the claimant is entitled for an amount of Rs.2,02,608/-

(Rs.9,000/- x 12 x 14 x 13.4%) under the head loss of future

income.

8. The Tribunal has awarded an amount of Rs.2,500/-

under the head food, nourishment, attendant charges and other

incidental charges and he was an inpatient for a period of four

days and hence it does not require interference of this Court.

9. The Tribunal has awarded an amount of

Rs.71,698/- under the head medical expenses based on

documentary evidence and hence it does not require interference

of this Court.

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

towards loss of amenities. The claimant being 43 years has to

lead rest of his life with 13.4% disability and hence it is

appropriate to award an amount of Rs.30,000/- as against

Rs.10,000/- under the head loss of amenities.

11. The Tribunal has awarded an amount of

Rs.20,000/- under the head future medical expenses and the

same is retained and it does not require interference of this

Court.

12. The Tribunal has awarded an amount of Rs.7,000/-

under the head loss of income during the laid up period.

Considering the nature of injuries suffered and taking the laid up

period as four months and considering his income as Rs.9,000/-

per month, an amount of Rs.36,000/- (Rs.9,000/- x 4) is

awarded under the head loss of income during laid up period.

13. In all, the claimant is entitled for compensation of

Rs.4,12,806/- as against Rs.3,01,782/-.

14. 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 20.04.2017, passed in M.V.C.No.420/2015, is modified granting

compensation of Rs.4,12,806/- as against Rs.3,01,782/- with interest at 6% per annum from the date of petition till deposit.

(iii) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.

Sd/-

JUDGE MD