Karnataka High Court

Pappu vs Kukkapalli Anjaneyulu And Ors on 10 January, 2023

Bench: J.M.Khazi

                         1      MFA No.200229/2019




         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

     DATED THIS THE 10TH DAY OF JANUARY, 2023

                      BEFORE

        THE HON'BLE MS. JUSTICE J.M.KHAZI

            MFA NO.200229/2019 (MV)

BETWEEN:

PAPPU S/O MANU RATHOD
AGE: 23 YEARS
OCC: COOLIE (NOW NIL)
R/O BALBATTI VILLAGE
TQ. JEWARGI
DIST. KALABURAGI
                                         ...APPELLANT
(BY SMT. SRIDEVI J. TUPPAD, ADVOCATE &
SRI J.S. TUPPAD, ADVOCATE)

AND

1.    KUKKAPALLI ANJANEYULU
      S/O CHIN VENKATESHWARALU
      AGE: MAJOR, OCC: BUSINESS
      R/O VIGNESHARA CHEMICALS &
      FERTILIZERS GOBBUR (V)
      DEVADURGA
      RAICHUR-584101

2.    THE NEW INDIA ASSURANCE CO. LTD.
      THROUGH ITS
      DIVISIONAL MANAGER
      NO.10-2-7, 2 ND FLOOR
      S.B.TEMPLE ROAD
                             2       MFA No.200229/2019




     SANGAMESHWAR NAGAR
     KALABLURAGI
                                            RESPONDENTS
(SRI SANJAY M. JOSHI, ADVOCATE FOR R2;
V/O DT.18.03.2019, NOTICE TO R1 IS DISPENSED WITH)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT, PRAYING TO ALLOW
THIS   APPEAL   AND  AWARD    COMPENSATION     OF
RS.9,06,400/- ALONG WITH INTEREST 12% P.A. BY
MODIFYING THE JUDGMENT AND AWARD OF THE SENIOR
CIVIL JUDGE AND MACT AT JEWARGI DATED 10.07.2018
IN MVC NO.987/2017.

     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

This miscellaneous first appeal is filed by

petitioner under Section 173(1) of Motor Vehicles Act

(hereinafter referred to as 'the Act' for short), seeking

enhancement of compensation for the injuries

sustained by him in a road traffic accident dated

07.05.2017.

2. For the sake of convenience, the parties

are referred to by their rank before the Tribunal.

3. It is the case of the petitioner that on

07.05.2017 he was travelling as a pillion rider in

motorcycle bearing registration No.MH-12/GD-2059

on Shahapur-Bheemarayanagudi main road, it was

ridden by one Anil. They were going to Ganga Nayak

Tanda to attend fair of Shree Maremma devi. At

around 9-45 p.m., car bearing registration No.KA-

36/N-4789 (hereinafter referred as "the offending

vehicle") driven by its driver in a rash or negligent

manner came and dashed against the motorcycle of

the petitioner. In the said accident, the petitioner

sustained compound segment fracture of left tibia and

other injuries resulting in permanent partial disability.

Inspite of prolonged treatment, he is not completely

cured.

3.1. After conducting detailed investigation, the

concerned police have filed chargesheet against the

driver of the offending vehicle. At the time of

accident, he was aged 21 years, earning Rs.12,000/

p.m. by doing coolie. The offending vehicle was

insured with respondent No.2. As owner and insurer,

both the respondents are jointly and severally liable to

pay the compensation.

4. Respondent Nos.1 and 2 have filed

separate written statement disputing the age,

occupation, income of the petitioner, nature of the

injuries sustained by him and that they have resulted

in permanent partial disability and also medical

expenses incurred for the treatment. Respondent

No.2 has also contended that since the vehicle was

handed over to unauthorized person, it is not liable to

indemnify respondent No.1.

5. Based on the pleadings, the Tribunal has

framed necessary issues.

6. Petitioner got himself examined as P.W.1

and the doctor as P.W.2 and relied upon Exs.P.1 to

98.

7. Respondents have not led any oral and

documentary evidence.

8. Vide the impugned judgment and award,

the Tribunal has partly allowed the claim petition filed

by the petitioner granting compensation in a sum of

Rs.2,83,000/- with interest at 6% per annum and

directed respondent No.2 to pay the same with

interest at 6% per annum as detailed below:

SL. NATURE OF THE HEADS COMPENSATION NO.

1. Loss of future income due to disability Rs.1,40,000=00 (78,000/- X 10 % X 18 = Rs.1,40,000=00) (The same is rounded-off as Rs.1,40,000/-)

2. Medical Expenses Rs.1,08,000=00 (Rs.1,08,037/- is rounded-off as Rs.1,08,000/-)

3. Loss of Income during treatment and laid- Rs.05,000=00 off period

4. Pain and suffering Rs.20,000=00

5. Extra nourishment and nutrition Rs.05,000=00

6. Food, conveyance and attendants charges Rs.05,000=00 during treatment TOTAL Rs.2,83,000=00

9. Respondent No.2 has not challenged the

impugned judgment and award.

10. During the course of arguments, learned

counsel representing the petitioner submitted that

having regard to the injuries suffered, the disability

taken at 10% of the whole body is on the lower side.

Since the accident is of the year 2017, the notional

income taken at Rs.6,500/- p.m. is on the lower side.

It ought to have been taken at Rs.12,500/-p.m. The

compensating granted under other heads is also on

the lower side and prays to allow the appeal.

11. On the other hand, learned counsel for

respondent No.2 supported the impugned judgment

and award and prays for dismissal of the appeal.

12. Heard learned counsel for the petitioner

and learned counsel for respondent No.2 and perused

the records.

13. Based on the complaint lodged in respect of

the accident, the concerned police have conducted

detailed investigation and filed the chargesheet

against the driver of the offending vehicle. During the

course of his evidence, the petitioner who is examined

as P.W.1 has deposed with regard to the accident and

injuries suffered by him. Taking into consideration the

documents placed on record and the evidence of

P.W.1, the Tribunal has rightly held that the accident

occurred due to the rash or negligent driving by the

driver of the offending vehicle.

14. Having regard to the grounds urged in the

appeal memo, it is necessary to examine whether the

compensation granted to the petitioner under the

following various heads is just and reasonable or it

calls for interference by this Court:

15. Pain and suffering & loss of amenities

of life: The petitioner claims that he was earning

Rs.12,000/- p.m. In the absence of document to

prove the exact income of the petitioner, the Tribunal

has taken his notional income as Rs.6,500/- p.m.

However, having regard to the fact that the accident is

of the year 2017, the minimum wages ought to have

been taken at Rs.10,250/- p.m. Based on medical

records as well as Adhar card at Ex.P94, the Tribunal

has correctly taken the age of the petitioner as 21

years and multiplier 18.

15.1. Based on the evidence of P.W.2, the

Tribunal has correctly taken the whole body disability

at 10% and it requires no interference. Having regard

to the nature of injuries sustained by the petitioner,

period of treatment and that it has resulted in

permanent partial disability, I hold that grant of

compensation in a sum of Rs.20,000/- under the head

pain and suffering and Rs.5,000/- under the head loss

of amenities is on the lower side and the same is

enhanced to Rs.50,000/- and Rs.40,000/-

respectively.

16. Medical expenses:- Based on the medical

bills, the Tribunal has rightly granted compensation in

a sum of Rs.1,08,000/- and it requires no

interference.

17. Loss of income due to disability:- since

the petitioner has suffered permanent partial disability

of 10% of the whole body. With his income at

Rs.10,250/- p.m. and 18 multiplier, the compensation

under this head comes to Rs.10,250 x 12 x 18 x10%

= Rs.2,21,400/- as against Rs.1,40,000/- granted by

the Tribunal.

18. Compensation for the laid up period:-

Looking to the nature of the injuries sustained by the

petitioner and that it has resulted in permanent partial

disability, it would be reasonable to expect him to be

under treatment for three months. Therefore, at the

rate of Rs.10,250/-, the petitioner is entitled for

compensation in a sum of Rs.30,750/- as against

Rs.5,000/- granted by the Tribunal.

19. Food and conveyance charges:- The

Tribunal has granted compensation in a sum of

Rs.5,000/- under this head. Having regard to the fact

that the petitioner has suffered fracture, has

undergone surgery and was under treatment for a

long period of three months, it would be reasonable to

enhance to same to Rs.15,000/-.

20. Future medical expenses: Since the

petitioner has undergone surgery, for removal of

implants, granting compensation in a sum of

Rs.25,000/- would be just and reasonable.

21. Thus, in all the petitioner is entitled for

total compensation in a sum of Rs.4,90,150/- together

with interest at 6% p.a., as against Rs.2,83,000/-

granted by the Tribunal as detailed below:

Sl.No.           Heads       Amount               Amount
                             awarded by the       awarded by this
                             Tribunal             Court
1.         Pain          and Rs.20,000/-          Rs.50,000/-
           sufferings
2.         Loss of amenities           --         Rs.40,000/-
           of life
3.         Medical expenses      Rs.1,08,000/-    Rs.1,08,000/-
4.         Loss of income        Rs.1,40,000/-    Rs.2,21,400/-
           due to disability
5.         Compensation          Rs.5,000/-       Rs.30,750/-
           for the laid up
           period
6.         Food           and    Rs.5,000/-       Rs.15,000/-
           conveyance
           charges
7.         Extra                 Rs.5,000/-             --
           nourishment and
           nutrition
8.         Future      medical         --         Rs.25,000/-
           expenses
                 Total           Rs.2,83,000/-    Rs.4,90,150/-

22. Of course as the insurer of the offending

vehicle, respondent No.2 is liable to pay the enhanced

compensation with accrued interest. Accordingly, I

proceed to pass the following: