Karnataka High Court
Arun Kumar Kunhikannan vs Chandra Shekar N on 3 November, 2023
Bench: H T Prasad
-1-
NC: 2023:KHC:39182
MFA No. 358 of 2020
C/W MFA No. 353 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 358 OF 2020 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 353 OF 2020(MV)
IN MFA 358/2020
BETWEEN:
SUMEER KRISHNA A P
S/O KRISHNAN P M
AGED ABOUT 48 YEARS
R/A NO 93/2 3RD CROSS
NRI LAYOUT KALKERE
HORAMAVU, BENGALURU-560043. ...APPELLANT
(BY SRI. GURUDEV PRASAD K T., ADVOCATE)
AND:
Digitally signed 1. CHANDRA SHEKAR N
by S/O NAGAPPA
DHANALAKSHMI
MURTHY NO E 263, NAGAPPA BUILDING
Location: High JAMES SCHOOL ROAD
Court of
Karnataka AVALAHALLI VILLAGE
VIRGONAGAR POST
BENGALURU-560 049.
2. UNITED INSURANCE CO. LTD.,
BY ITS MANAGER
TP HUB NO 18
KRUSHIBHAVAN 6TH FLOOR
NRUPATHUNGA ROAD
OPP HUDSON CIRCLE
BENGALURU-560 001. ...RESPONDENTS
-2-
NC: 2023:KHC:39182
MFA No. 358 of 2020
C/W MFA No. 353 of 2020
(BY SRI.B.A. RAMAKRISHNA., ADVOCATE FOR R2:
NOTICE TO R1 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 19.03.2019
PASSED IN MVC NO.5149/2017 ON THE FILE OF THE V
ADDITIONAL SMALL CAUSES JUDGE AND XXIV ACMM,
MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN MFA 353/2020
BETWEEN:
ARUN KUMAR KUNHIKANNAN
S/O A V KUNHI KANNAN
AGED ABOUT 47 YEARS
R/A NO 15, 5TH CROSS
NANDANAM. 2ND BLOCK, AKSHAYANAGAR
DOORVANINAGAR
BENGALURU-560016. ...APPELLANT
(BY SRI. GURUDEV PRASAD K T.,ADVOCATE)
AND:
1. CHANDRA SHEKAR N
S/O NAGAPPA
NO E 263, NAGAPPA BUILDING
JAMESH SCHOOL ROAD
AVALAHALLI VILLAGE
VIRGONAGAR POST
BENGALURU-560 049.
2. UNITED INSURANCE CO. LTD.,
BY ITS MANAGER
TP HUB NO 18
KRUSHIBHAVAN, 6TH FLOOR
NRUPATHUNGA ROAD
OPP HUDSON CIRCLE
BENGALURU-560 001. ...RESPONDENTS
-3-
NC: 2023:KHC:39182
MFA No. 358 of 2020
C/W MFA No. 353 of 2020
(BY SRI.B.A. RAMAKRISHNA., ADVOCATE FOR R2:
NOTICE TO R1 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:19.03.2019
PASSED IN MVC NO.5148/2017 ON THE FILE OF THE V
ADDITIONAL SMALL CAUSES JUDGE AND XXIV ACMM,
MEMBER, MACT, BENGALURU (SCCH-20), PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Both the appeals are filed by the claimants under
Section 173(1) of the Motor Vehicles Act challenging the
judgment and award dated 19.03.2019 passed by the
MACT, Bangalore in MVC Nos.5149/2017 and 5148/2017,
respectively. Since the challenge is to the same judgment,
both the appeals are clubbed together, heard and common
judgment is being passed.
2. The brief facts of the case are that on 12.08.2017
at about 9.00 p.m. the claimants were proceeding in a
motorcycle bearing registration No.MH-05/W-9867. When
they reached near Kabbalamma Y-Bridge, at that time, a
car bearing registration No. KA-53/C-8548 came at a high
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MFA No. 358 of 2020
C/W MFA No. 353 of 2020
speed, in a rash and negligent manner and dashed against
the vehicle of the claimants. Due to the impact, claimants
fell down, have sustained grievous injuries and were
hospitalized.
3. The claimants filed petitions under Section 166
of the Act on the ground that they were working in
software companies and earning Rs.1,05,000/- per month
and Rs.20,00,000/- per annum, respectively. It was
pleaded that they have also spent huge amount towards
medical expenses, conveyance, etc. It was further
pleaded that the accident occurred purely on account of
the rash and negligent driving of the offending vehicle by
its rider.
4. On service of notice, the respondent No.2 filed
written statement in which the averments made in the
petition were denied. It was pleaded that the accident
occurred due to negligence of the rider of the vehicle in
which claimants were proceeding. It was further pleaded
that as on the date of the accident the driver of the
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offending vehicle was not holding a valid and effective
driving licence and there is violation of policy conditions
and Insurance Company is not liable to pay the
compensation. Hence, he sought for dismissal of the
petition. The respondent No.1 did not appear before the
Tribunal and hence he was placed exparte.
5. On the basis of the pleadings of the parties, the
Claims Tribunal framed the issues and thereafter recorded
the evidence. The claimants examined themselves as PW-
1 and PW-2 and Dr.S.Ramachandra as PW-6 and other
four witnesses as PW-3 to PW-5 and PW-7 and got
exhibited documents namely Ex.P1 to Ex.P41. On behalf
of the respondents, neither any witness was examined nor
got marked documents. The Claims Tribunal, by the
impugned judgment, inter alia, held that the accident took
place on account of rash and negligent driving of the
offending vehicle by its driver, as a result of which, the
claimants sustained injuries. The Tribunal further held
that the claimants are entitled to a compensation of
Rs.12,85,000/- and Rs.3,65,000/- respectively, along
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MFA No. 358 of 2020
C/W MFA No. 353 of 2020
with interest at the rate of 9% p.a. and directed the
insurance company to deposit the compensation amounts
along with interest. Being aggrieved, these appeals have
been filed.
MFA No.358/2020 (MVC No.5149/2017):
6. The learned counsel for the claimant has
contended that due to the accident the claimant has
suffered grievous injuries, he was inpatient for a period of
17 days. He has suffered disability of 70.15% to right
lower limb and 35% to whole body. He has suffered lot of
pain during treatment and he has to suffer the disability
and unhappiness throughout his life. Considering the
same, the compensation awarded by the Tribunal for 'pain
and sufferings', 'loss of amenities' and other incidental
expenses is on the lower side. Hence, he prays for
enhancement of the compensation.
7. Per contra, the learned counsel for the
Insurance Company has contended that even though the
claimant has suffered disability of 70.15% to right lower
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C/W MFA No. 353 of 2020
limb and 35% to whole body, the disability will not come
in the way of the claimant to discharge his duties. All
fractures are re-united, he was continued in service.
Considering the evidence of the parties and the medical
records, the compensation awarded by the Tribunal for
'pain and sufferings', 'loss of amenities' and other
incidental expenses is just and reasonable. He further
contended that in view of the Division Bench decision of
this Court in the case of MS.JOYEETA BOSE AND
OTHERS vs. VENKATESHAN.V AND OTHERS (MFA
5896/2018 and connected matters disposed of on
24.8.2020), the interest granted by the Tribunal at the
rate of 9% p.a. is on the higher side and the same has to
be reduced to 6% p.a. Hence, he sought for dismissal of
the appeal.
8. Heard the learned counsel for the parties.
Perused the judgment and award.
9. It is not in dispute that the claimant has
suffered injuries in the accident occurred on 12.08.2017
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C/W MFA No. 353 of 2020
due to rash and negligent driving of the car bearing
registration No.KA-53/C-8548 by its driver.
10. Due to the accident the claimant has suffered
fracture neck of right femur, fracture shaft of right femur
fracture proximal right tibia and fracture dislocation of
phalanx of right middle finger. He has examined the
doctor as PW-6, who in his evidence has deposed that the
claimant has suffered 70.15% disability to right lower limb
and 35% to whole body. He has suffered lot of pain
during treatment and he has to suffer the disability and
unhappiness throughout his life. Considering the evidence
of the doctor and the injuries suffered by the claimant, I
am inclined to enhance the compensation awarded by the
Tribunal for 'pain and sufferings' from Rs.80,000/- to
Rs.1,00,000/- and for 'loss of amenities' from Rs.75,000/-
to Rs.1,25,000/-. The compensation awarded by the
Tribunal under other heads remains unaltered.
11. Thus, the claimant is entitled to the following
compensation:
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MFA No. 358 of 2020
C/W MFA No. 353 of 2020
As awarded As awarded
by the by this
Compensation under
Tribunal Court
different Heads
(Rs.) (Rs.)
Pain and sufferings 80,000 1,00,000
Loss of income during 9,42,606 9,42,606
laid up period
Loss of amenities 75,000 1,25,000
Conveyance, 20,000 20,000
nourishment and
attendant charges
Medical expenses 27,264 27,264
Future medical expenses 1,40,000 1,40,000
Total 12,84,870 13,54,870
Rounded off to 12,85,000
MFA No.353/2020 (MVC No.5148/2017):
12. The learned counsel for the claimant has
contended that due to the accident the claimant has
suffered grievous injuries. He has suffered disability of
42.94% to right lower limb and 21.47% to whole body.
He has suffered lot of pain during treatment and he has to
suffer the disability and unhappiness throughout his life.
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MFA No. 358 of 2020
C/W MFA No. 353 of 2020
Considering the same, the compensation awarded by the
Tribunal for 'pain and sufferings', 'loss of amenities' and
other incidental expenses is on the lower side. Hence, he
prays for enhancement of the compensation.
13. Per contra, the learned counsel for the
Insurance Company has contended that even though the
claimant has suffered disability of 42.94% to right lower
limb and 21.47% to whole body, the disability will not
come in the way of the claimant to discharge his duties.
All fractures are re-united, he was continued in service.
Considering the evidence of the parties and the medical
records, the compensation awarded by the Tribunal for
'pain and sufferings', 'loss of amenities' and other
incidental expenses is just and reasonable. He further
contended that in view of the Division Bench decision of
this Court in the case of MS.JOYEETA BOSE AND
OTHERS vs. VENKATESHAN.V AND OTHERS (MFA
5896/2018 and connected matters disposed of on
24.8.2020), the interest granted by the Tribunal at the
rate of 9% p.a. is on the higher side and the same has to
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MFA No. 358 of 2020
C/W MFA No. 353 of 2020
be reduced to 6% p.a. Hence, he sought for dismissal of
the appeal.
14. Heard the learned counsel for the parties.
Perused the judgment and award.
15. It is not in dispute that the claimant has
suffered injuries in the accident occurred on 12.08.2017
due to rash and negligent driving of the car bearing
registration No.KA-53/C-8548 by its driver.
16. Due to the accident the claimant has suffered
fracture of right medial mallelous of right ankle degloving
injury. He has examined the doctor as PW-6, who in his
evidence has deposed that the claimant has suffered
disability of 42.94% to right lower limb and 21.47% to
whole body. He has suffered lot of pain during treatment
and he has to suffer the disability and unhappiness
throughout his life. Considering the evidence of the doctor
and the injuries suffered by the claimant, I am inclined to
enhance the compensation awarded by the Tribunal for
'pain and sufferings' from Rs.80,000/- to Rs.1,00,000/-
and for 'loss of amenities' from Rs.75,000/- to
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MFA No. 358 of 2020
C/W MFA No. 353 of 2020
Rs.1,00,000/-. The compensation awarded by the Tribunal
under other heads remains unaltered.
17. Thus, the claimant is entitled to the following
compensation:
As awarded As
by the awarded
Compensation under
Tribunal by this
different Heads
Court
(Rs.)
(Rs.)
Pain and sufferings 80,000 1,00,000
Loss of amenities 75,000 1,00,000
Conveyance, 20,000 20,000
nourishment and
attendant charges
Medical expenses 49,973 49,973
Future medical 1,40,000 1,40,000
expenses
Total 3,64,973 4,09,973
Rounded off to Rs.3,65,000/-
18. In view of the above, I pass the following order:
(i) Both the appeals are allowed in part.
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MFA No. 358 of 2020
C/W MFA No. 353 of 2020
(ii) The judgment of the Claims Tribunal is modified.
The claimant in MFA No.358/2020 is entitled to a
compensation of Rs.13,54,870/- in place of Rs.12,85,000/-
awarded by the Tribunal. The claimant in MFA
No.353/2020 is entitled to compensation of Rs.4,09,973/-
in place of Rs.3,65,000/- awarded by the Tribunal.
(iii) The Insurance Company is directed to deposit
the entire compensation amounts in both the matters
along with interest from the date of petition till the date of
payment, within a period of six weeks from the date of
receipt of a copy of this order.
(iv) The enhanced compensation carries interest @
6% p.a.
Sd/-
JUDGE
CM
