Karnataka High Court
Srinivasa Ganiga vs Mathew Ronald Lobo on 22 November, 2023
-1-
NC: 2023:KHC:42114
MFA No. 2854 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 2854 OF 2020 (MV-I)
BETWEEN:
SRINIVASA GANIGA
AGED ABOUT 66 YEARS
S/O KRISHNAYYA GANIGA
R/O H NO.5-121, BHATRABETTU
HANDADY VILLAGE, BRAHMAVARA
TALUK, UDUPI DISTRICT-576 101 ...APPELLANT
(BY SRI. PAVANA CHANDRA SHETTY H, ADV.)
AND:
1. MATHEW RONALD LOBO
AGED ABOUT 32 YEARS
S/O THOMAS LOBO
R/O DIVINE PERAL NEAR
MODERN SERVICES STATION 2-21A
IRODI VILLAGE, BRAHMAVARA TALUK
UDUPI DISTRICT-576 101
Digitally signed by MALA K 2. IFFCO-TOKIO GENERAL INSURANCE
N COMPANY LTD., 3RD FLOOR
Location: HIGH COURT OF LALBAGH TOWER, BALLALABAGH
KARNATAKA M G ROAD, MANGALORE-575 001
REP. BY ITS BRANCH MANAGER ...RESPONDENTS
(BY SRI.D.VIJAYAKUMAR, ADV. FOR R2;
NOTICE TO R1 IS DISPENSED WITH
VIDE ORDER DATED 13.02.2023)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, AGAINST THE JUDGMENT AND AWARD DATED
04.10.2019 PASSED IN MVC NO.972/2018 ON THE FILE OF
THE PRL. SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
-2-
NC: 2023:KHC:42114
MFA No. 2854 of 2020
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the petitioner has challenged the
judgment and award dated 04.10.2019 in
M.V.C.No.972/2018 passed by the Principal Senior
Civil Judge and Addl. M.A.C.T., Udupi ('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 30.05.2018 at
about 08:40 pm, whilethe petitioner was riding the
bicycle by the side of National Highway-66, near
Dharmavaram Auditorium of Varambally Village of
Brahmavara Taluk, a motor cycle bearing
Reg.No.KA-20/ER-6896 hit against him, causing the
injuries. The petitioner was treated at T.M.A. Pai
Hospital, Udupi, Mahesh Hospital and Pranav
Hospital, Brahmavara. He was under hospitalization
NC: 2023:KHC:42114
for 29 days. After taking treatment, the petitioner
has approached the Tribunal for grant of
compensation of Rs.16,49,000/-. Claim was
opposed by the Insurance Company. The Tribunal
after taking the evidence, by impugned judgment,
awarded the compensation of Rs.2,96,483/- with 6%
interest p.a. Pleading inadequacy and seeking
enhancement, the petitioner has filed this appeal on
various grounds.
4. Heard the arguments of Sri. Pavan Chandra
Shetty, learned counsel for the petitioner and
Sri. D. Vijayakumar, learned counsel for the
Insurance Company.
5. It is the contention of learned counsel for the
petitioner that the petitioner has suffered fractures,
medical evidence placed before the Tribunal to
explain whole body disability of 40%, but the
Tribunal did not consider it. The petitioner was
earning Rs.12,500/- per month, but the Tribunal
NC: 2023:KHC:42114
assessed it at Rs.10,000/-. Compensation is not
properly assessed under conventional heads like
attendant charges, food and nourishment, travelling
expenses so also the loss of amenities and
discomfort and he sought for enhancement.
6. Per contra, learned counsel for the Insurance
Company has contended that the petitioner was
aged 65 years, he has no avocation, the Tribunal has
rightly considered the income at Rs.10,000/-. The
medical evidence did not point out that the petitioner
has suffered permanent disability. The disability of
15% assessed by the Tribunal is on the higher side,
there is no need for enhancement and he supported
the impugned judgment.
7. I have given my anxious consideration to the
arguments addressed on both sides and also perused
the materials on record.
8. On perusal of the materials on record, it is
pertinent to note that there was an accident
NC: 2023:KHC:42114
involving the bicycle and the motor cycle on
30.05.2018, wherein the petitioner has suffered
comminuted split depression fracture of lateral
condyle of right proximal tibia and osteo arthritis of
knee joint. The petitioner was under hospitalization
at 3 hospitals for a period of 29 days and he has
undergone surgery. The petitioner though claims
that he is a Painter, having regard to the age of 65,
the notional income has to be taken as the petitioner
has not produced any proof of income. The accident
is of the year 2018. A person with no proof of the
income in the year 2018 will earn not less than
Rs.12,500/- and accordingly it has to be considered.
9. PW-2 is the treating doctor who has
explained 40% disability. Having regard to the
gravity of the injury and also medical evidence, 15%
disability assessed by the Tribunal is proper and
learned counsel for the Insurance Company is right
in his submission that there is no material to
NC: 2023:KHC:42114
consider the higher rate of percentage of disability.
The petitioner was attended by an attendant during
hospitalization. Having regard to his age, he has to
take food and nourishment. Medical evidence and
records point out that for more than 12 times, the
petitioner has been to the hospital for follow-up
treatment. Hence, travelling expenses has to be
considered.
10. Having regard to the nature of injuries,
pain and sufferings Rs.55,000/-, medical expenses of
Rs.25,483/- assessed by the Tribunal have to be
retained as it is. Towards attendant charges for 29
days, Rs.12,083/-, towards food and nourishment,
Rs.10,000/-, travelling expenses of Rs.6,000/- has
to be assessed. The petitioner was laid-up for 4
months. The Tribunal has awarded Rs.40,000/- at
the rate of Rs.10,000/-. But at the rate of
Rs.12,500/-, it comes to Rs.50,000/-, accordingly
the petitioner has to be awarded. Towards loss of
NC: 2023:KHC:42114
amenities and discomfort with the injury to knee, a
sum of Rs.30,000/- has to be compensated. As
regarding loss of future earnings is concerned, taking
the income at Rs.12,500/- and disability at 15%, it
comes to Rs.12,500/- x 12 x '7' multiplier x 15%
comes to Rs.1,57,500/-. Thereby, the total
compensation comes to Rs.3,46,066/- as against
Rs.2,96,483/-, thereby enhancement of Rs.49,583/-
rounded off to Rs.50,000/-. This is the just
compensation that the petitioner is entitled to in the
facts and circumstances of the case. Hence, the
appeal merits consideration, in the result, the
following:
ORDER
i) Appeal is allowed-in-part.
ii) Impugned judgment and award is
modified.
iii) Petitioner is entitled to enhanced
compensation of Rs.50,000/- with
interest of 6% p.a. from the date of
NC: 2023:KHC:42114
petition till its realization excluding
interest for the delayed period of 5 days
in filing the appeal.
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
