Karnataka High Court
Sri Sunil A S vs Harish Kumara K P on 8 December, 2023
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NC: 2023:KHC:45876
MFA No. 4295 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 4295 OF 2021 (MV-I)
BETWEEN:
SRI SUNIL A S
S/O SHIVAMURTHY, AGED ABOUT 30 YEARS
APPIHALLI VILLAGE, HALEBEEDU HOBLI
BELUR TALUK, PRESENTLY R/AT
SHAMBULINGESHWARA NILAYA
JAYANAGARA 2ND STAGE, SALAGAMEN
ROAD, HASSAN DISTRICT ...APPELLANT
(BY SRI. K R LINGARAJU., ADV.)
AND:
1. HARISH KUMARA K P
S/O PARVATHEGOWDA, AGE MAJOR
KODIHALLI VILLAGE, ADAGURU POST
HALEBEEDU HOBLI, BELUR TALUK
HASSAN DISTRICT
2. THE MANAGER
Digitally signed by NEW INDIA ASSURANCE COMPANY LTD
MALA K N CHANDANA COMPLEX, HARSHA MAHAL
Location: HIGH COURT ROAD, HASSAN.- 573 201 ...RESPONDENTS
OF KARNATAKA
(BY SRI.RAJASHEKARA REDDY, V. ADV.
R1 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 01.02.2020
PASSED IN MVC NO.367/2019 ON THE FILE OF THE VI
ADDITIONAL DISTRICT AND SESSIONS JUDGE II ADDITIONAL
AND SESSIONS JUDGE AND ADDITIONAL MACT, HASSAN,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
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MFA No. 4295 of 2021
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the petitioner has challenged the
judgment and award dated 01.02.2020 in
M.V.C.No.367/2019 passed by the II Addl. District
and Sessions Court and Addl. M.A.C.T., Hassan ('the
Tribunal' for short).
2. For the sake of convenience, the parties
shall be referred to as per their status before the
Tribunal.
3. Brief facts of the case are, on 09.10.2018 at
about 12:00 pm while the petitioner was a riding his
bike bearing Reg.No.KA-46/E-8255 near
Chattanahalli of Hassan Taluk, he was hit by another
motor cycle bearing Reg.No.KA-46/H-8302, (in short
'the offending vehicle') injuring him. After taking
treatment at Hemavathi Hospital, Hassan, he has
moved the Tribunal for grant of compensation.
Claim was opposed by the Insurance Company of the
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offending vehicle. The Tribunal after taking the
evidence, by impugned judgment, awarded
compensation of Rs.4,75,000/- with 9% interest p.a.
Pleading inadequacy and seeking enhancement, the
petitioner has filed this appeal on various grounds.
4. Heard the arguments of Sri. K.R. Lingaraju,
learned counsel for the petitioner and
Sri. Rajashekara Reddy, learned counsel for the
Insurance Company.
5. It is the contention of learned counsel for the
petitioner that the petitioner is a Software Engineer,
he has lost his job due to the accident, he was
drawing salary of Rs.20,860/- at the date of
accident, but the Tribunal did not consider the said
income and made inappropriate deductions reducing
the income to Rs.18,000/- and assessed the
compensation. The Tribunal has not awarded any
compensation towards loss of amenities and
discomfort, also towards pain and sufferings and loss
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of income during laid-up period are inadequate and
he sought for enhancement.
6. Per contra, learned counsel for the Insurance
Company has contended that the petitioner is a
Software Engineer, the injury has not affected his
earning capacity; he still continued the job, the
Tribunal has committed error in assessing loss of
future income and utmost, he may be granted some
amount under loss of amenities and discomfort and
he sought for modification of the award by reducing
the compensation. It is further contended that the
rate of interest awarded at 9% is on the higher side
and he requested to reduce it to 6%.
7. I have given my anxious consideration to the
arguments addressed on both sides and also perused
the materials on record.
8. The material on record did point out that
there was an accident involving 2 motor cycles, in
one of it the petitioner was the rider. The criminal
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prosecution is against the offending motor cycle and
the Tribunal has considered the prosecution papers,
also evidence of the petitioner and accepted that
there was an accident due to actionable negligence
on part of the respondent No.1.
9. The medical records did point out that in the
accident, the petitioner has suffered fracture of left
humerus and 5th metatarsal of the right hand and
middle phalanx of the little toe of the right leg.
PW-2 Dr. Ramakrishna Bhat, the treated Doctor
assessed the limb disability of 21% and whole body
disability of 7%. The petitioner was under
hospitalization for 5 days. He was aged 29 years,
doing software business, suffered injuries to both the
hands, which certainly affects his earning capacity.
10. The issue is regarding the petitioner is still
working and drawing salary or not. The material on
record points out that post-COVID, he did not
continue the job and he is now under
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unemployment. Hence, loss of future earnings has
to be assessed, but having regard to the nature of
injuries, percentage of whole body disability at 7% is
on the higher side and it has to be restricted to 5%.
Ex.P12/pay slip points out that at relevant point of
time, the petitioner was drawing gross salary of
Rs.20,860/- per month. After the statutory
deduction of Rs.200/- towards professional tax, his
income comes to Rs.20,660/- for the purpose of
calculation; 40% future prospects has to be added,
'17' is the applicable multiplier for the age of the
petitioner; then, loss of future earnings will be
Rs.20,660/- + Rs.8,264/- (40%) = Rs.28,924/- x 12
x 17 x 5% = Rs.2,95,024/-. The petitioner has
suffered 3 fractures, the accident is of the year
2018. Hence, a sum of Rs.60,000/- towards pain
and sufferings, Rs.10,000/- towards food and
nourishment, Rs.41,320/- towards loss of income
during laid-up for 2 months, Rs.20,000/- towards
loss of amenities and discomfort has to be assessed.
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Medical expenses of Rs.1,19,000/-, attendant
charges and travelling expenses of Rs.4,000/-,
future medical expenses of Rs.25,000/- assessed by
the Tribunal has to be retained as it is. Then, the
total compensation comes to Rs.5,74,344/- as
against Rs.4,75,000/-, thereby enhancement of
Rs.99,344/- rounded off to Rs.99,000/-. This is the
just compensation that the petitioner entitled to in
the facts and circumstances of the case.
11. Adverting to the rate of interest is
concerned, since the Insurance Company has not
filed any appeal, it is not proper to middle with the
discretion of the Tribunal. Insofar as enhanced
compensation is concerned, the petitioner is entitled
to the rate of interest at 6% p.a. Hence, the appeal
merits consideration, in the result, the following:
ORDER
i) Appeal is allowed-in-part.
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ii) Impugned judgment and award is
modified.
iii) Petitioner is entitled to enhanced
compensation of Rs.99,000/- with
interest of 6% p.a.
iv) The Insurance Company is directed to
deposit the compensation within eight
weeks from the date of receipt of
certified copy of the judgment.
v) Amount in deposit, if any, shall be
transmitted to the Tribunal along with
records forthwith.
Sd/-
JUDGE
PA
CT:HS
