Karnataka High Court

B S Ashok Kumar vs Deepak Chopra on 4 January, 2023

Bench: K.S.Mudagal, Anil B Katti

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF JANUARY, 2023

                        PRESENT

        THE HON'BLE Mrs. JUSTICE K.S. MUDAGAL

                           AND

        THE HON'BLE MR. JUSTICE ANIL B. KATTI

            M.F.A. No.5790 OF 2014 (MV-I)

BETWEEN:

B. S. ASHOK KUMAR
S/O K. SIDDALINGE GOWDA
AGED ABOUT 37 YEARS
RESIDING AT NO.166, 4TH CROSS
KAVIKA LAYOUT, MYSORE ROAD
VIJAYANAGAR
BANGALORE - 560 040.
                                           ...APPELLANT
(BY SRI G.MANIVANNAN, ADVOCATE)

AND:

1 . DEEPAK CHOPRA
    S/O GULSAN RAY CHOPRA
    MAJOR, RESIDING AT NO.1/16
    GOVINDANAGAR, KANPUR - 208 001
    UTTAR PRADESH.

2 . BAJAJ ALLIANZ GEN. INS. CO. LTD.
    G.E. PLAZA, AIRPORT ROAD
    YERWADA, PUNE - 411 006
    MAHARASTRA.
                                        ...RESPONDENTS
(BY SMT. H.R. RENUKA, ADVOCATE FOR R2.
VIDE ORDER DATED 10.12.2015, NOTICE TO R1
IS DISPENSED WITH)
                                           MFA No.5790/2014


                             2

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 03.04.2014
PASSED IN MVC NO.7430/2011 ON THE FILE OF THE II
ADDITIONAL SMALL CAUSES JUDGE, 28TH ACMM, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS APPEAL COMING ON FOR HEARING THIS DAY,
K.S.Mudagal J., DELIVERED THE FOLLOWING:

                       JUDGMENT

Heard.

2. Challenging the adequacy of compensation

awarded to the claimant in MVC No.7430/2011, on the file

of MACT, Bengaluru (SCCH.13), has preferred this appeal.

3. On 22.05.2010, at about 9.00 a.m., when the

appellant/claimant was standing near VRL/Kataria

Transport, Kanpur City, the driver of a Truck bearing

No.UP 81 D 9951 hit him and caused the accident. At that

time, respondent No.1 was the registered owner and

respondent No.2 was the Insurer of said lorry. During the

said period, claimant was working as Branch Manager in

VRL Logistics. Due to the accident, he suffered grievous

injuries. After taking preliminary treatment in Kanpur

Hospital, he was shifted to his home town, Bengaluru. As MFA No.5790/2014

per Discharge Summary-Ex.P.6 between 27.05.2010 and

10.06.2010, he was treated as indoor patient in Victoria

Hospital, Bengaluru. Thereafter, as per Ex.P7 between

29.09.2010 and 11.10.2010, he was treated as indoor

patient in KIMS Hospital & Research Centre, Bengaluru.

4. He filed MVC No.7430/2011 claiming that

accident took place due to rash and negligent driving of

the lorry by its driver. He claimed that due to grievous

injuries sustained by him in the accident, he suffered

permanent physical disability and thus claimed

compensation of Rs.25,00,000/- from the respondents.

Respondent No.1 did not contest the petition. Respondent

No.2-Insurer alone contested the petition denying the

accident, rashness, negligence on the part of the driver of

lorry, age, occupation, income and disability of the

claimant and its liability to pay compensation.

5. Parties adduced their evidence. The Tribunal,

on hearing the parties, by the impugned award granted MFA No.5790/2014

compensation of Rs.1,77,015/-, on different heads, as per

the Table below;

1. Injury, pain & sufferings. Rs. 50,000/-

2. Loss of earnings during Medical Rs. 12,670/-

treatment.

3.   Medical Expenses.               Rs.             77,345/-

4.   Loss of Amenities.                       Rs.    30,000/-

5. Conveyance, Nourishment, Food Rs. 7,000/-

and attending charges.

Total Rs.1,77,015/-

6. Claimant challenges the said award on the

ground that compensation awarded is grossly inadequate.

7. Sri G Manivannan, learned counsel for

appellant/claimant reiterating the grounds of appeal

submits that due to the accident, claimant has suffered

permanent physical disability and he could not attend to

his work for a period of three years. He submits that the

compensation awarded is in total ignorance of the evidence

on record.

MFA No.5790/2014

8. Per contra, Smt. H R Renuka, learned counsel

for respondent No.2-Insurer justifies the impugned award

claiming that as per the records of claimant himself, he

was re-employed and paid salaries even during the laid-up

period. She submits that there is no medical evidence to

prove that claimant had suffered any permanent physical

disability. Therefore, the compensation awarded is just and

proper.

9. The occurrence of accident due to rash and

negligent driving by the driver of lorry owned by

respondent No.1 and the same being insured with

respondent No.2 are not in dispute. The only medical

evidence adduced by claimant to prove the alleged

permanent physical disability was that of PW.2. He himself

does not state that claimant has suffered any permanent

physical disability. He does not state that claimant has

suffered fracture. He is not the Doctor who has issued

Ex.P.6 nor the Head of Department of Oral Surgery,

Victoria Hospital. However, in the evidence of PWs.1 and

2, the contents of Exs.P.6 and P.7 - Discharge Summaries MFA No.5790/2014

issued by Victoria Hospital and KIMS Hospital, Exs.P.8 and

P.9 - Medical records of Minto Eye Hospital, Bengaluru and

Ex.P.16 - case sheet of Victoria Hospital were not disputed.

Ex.P.8 shows that claimant had suffered fracture of right

nasal bone, right medial and lateral wall of right orbit with

Pneumo orbita and fracture of right orbital floor with

entrapment of right IR and right 10 muscle. Right orbital

haematoma with sup. predominance leading to inf.

displacement of right eye ball etc. Thus, it becomes clear

that claimant had suffered three fractures.

10. The finding of Tribunal that salary of claimant

was Rs.22,000/- per month is not challenged by

respondent No.2-Insurer. Though as per Ex.R.1, claimant

was appointed on 01.06.2013, there was no medical

evidence to show that claimant had suffered permanent

physical disability and therefore, he could not attend to the

work. Therefore, Tribunal has rightly rejected the claim on

the head 'loss of earning capacity' and 'loss of future

earning capacity'.

MFA No.5790/2014

11. Having regard to nature of injuries, the

compensation awarded under the head 'pain and suffering'

is on the lower side. Considering the three fractures of

ornamental bones, if a global sum of Rs.80,000/- is

awarded on the said head, that would meet the ends of

justice.

12. The medical records show that from

27.05.2010 till 11.10.2010, claimant was in and out of

hospital. Therefore, Tribunal should have taken that, for

about six months, claimant was not in a position to attend

to his work and awarded compensation. Accordingly, on

the head of 'loss of earning during laid-up period' at the

rate of Rs.22,000/- per month comes to Rs.1,32,000/-.

Out of that, as per claimant's own record Ex.P.13, for the

month of August, 2010, his employer had paid Rs.9,000/-.

After deducting that amount, the compensation payable on

the head 'loss of earning during laid-up period' comes to

Rs.1,19,000/-.

MFA No.5790/2014

13. The medical expenses is based on the bills

produced by claimant. Therefore, award of compensation

on that head needs no interference.

14. Having regard to the period of hospitalisation

and treatment, compensation awarded on the head of

"conveyance, food and nourishment and attendant

charges' is on the lower side. Therefore, a global amount

of Rs.10,000/- is awarded under the head of conveyance,

that would meet the ends of justice. On the head of 'food,

nourishment etc.,' a sum of Rs.10,000/- can be awarded.

Therefore, the just compensation payable is as follows;

1. Injury, pain & sufferings. Rs. 80,000/-

2. Loss of earnings during laid-up period. Rs.1,19,000/-

3. Medical Expenses.                          Rs.   77,345/-

4. Loss of Amenities.                         Rs.   30,000/-

5. Conveyance charges                         Rs.   10,000/-

6. Food and Nourishment etc.                  Rs.   10,000/-

                        Total                 Rs.3,26,345/-
                                               MFA No.5790/2014

Thus, the order of Tribunal requires to be modified

accordingly. Hence, the following;

Order

The appeal is partly allowed. The impugned award is

modified as follows:

i) The appellant/claimant is entitled to

compensation of Rs.3,26,345/- with interest thereon

at 6% per annum from the date of petition till the

date of realisation.

ii) Respondent No.2-Insurer shall deposit

the said amount before Tribunal within eight weeks

from the date of this order, after adjusting the

amount already paid, if any.