Karnataka High Court
Shri Lingaraju vs Yadukumar N H on 22 November, 2023
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NC: 2023:KHC:41991
MFA No. 2349 of 2022
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
M.F.A. NO. 2349 OF 2022 (MV-I)
BETWEEN:
1. SHRI LINGARAJU
S/O LAKKAPPA
AGED ABOUT 54 YEARS
R/AT NO.371, 7TH CROSS
NEAR PESIT COLLEGE
VEERABHADRA NAGAR
BSK 3RD STAGE
BANGALORE-560 085.
... APPELLANT
(BY SRI. A S GIRISH., ADVOCATE)
AND:
1. YADUKUMAR N H
S/O HIRANNAYYA N S
R/AT NO.53/41, 8TH MAIN
Digitally signed by DWARAKANAGAR
MALA K N BSK 3RD STAGE
Location: HIGH COURT BENGALURU-560 085
OF KARNATAKA
(RC OWNER OF THE MOTOR CYCLE BEARING
REGISTRATION NO.KA-02-JZ-7232)
2. LIBERTY VIDEOCON GENERAL INSURANCE
COMPANY LIMITED
10TH FLOOR, TOWER-A
PENINSULA BUSINESS PARK
GANPATH RAO KADAM MARG
LOWER PAREL, MUMBAI
MAHARASHTRA-400 013
BY ITS MANAGER
-2-
NC: 2023:KHC:41991
MFA No. 2349 of 2022
(INSURER OF THE MOTOR CYCLE BEARING
REGISTRATION NO.KA-02-JZ-7232)
... RESPONDENTS
[BY SRI. ASHA S M., ADVOCATE FOR R1 (ABSENT);
SRI RAVI S. SAMPRATHI, ADVOCATE FOR R2]
THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DT.06.11.2021 PASSED IN MVC
NO.5043/2019 ON THE FILE OF THE III ADDITIONAL JUDGE AND
MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, (SCCH-
18), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
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 06.11.2021 in
M.V.C.No.5043/2019 passed by the III Additional Judge
and MACT, Court of Small Causes, Bangalore, (for short
'the Tribunal').
2. For the sake of convenience, the parties shall
be referred to as per their status before the Tribunal.
3. Briefly stated the facts are, on 12.07.2019 at
about 8.45 p.m., near PSIT College, the petitioner was hit
by a motor cycle bearing No.KA-02/JZ-7232 injuring him.
NC: 2023:KHC:41991
After taking treatment at A.V.Hospital, the petitioner has
moved the Tribunal under Section 166 of the Motor
Vehicles Act, 1988 ('the Act' for short) seeking
compensation. Claim was opposed by the respondents.
After taking evidence, the Tribunal allowed the claim
petition awarding compensation of Rs.5,05,856/- with
interest at 8% per annum. Pleading inadequacy, the
petitioner has filed this appeal on various grounds.
4. Heard the arguments of Sri. A. S. Girish,
learned counsel for the petitioner and Sri. Ravi S.
Samprathi, learned counsel for respondent No.2/Insurance
Company.
5. It is the contention of the learned counsel for
the petitioner that, in the accident the petitioner has
suffered blunt injury to the spine with tenderness, L1 and
L3 (lumbar vertebra) with compression, fracture of L1
(Lumbar spine I), Bimalleolar fracture of right ankle. The
Doctor has spoken to about the whole body disability at
21%, but the Tribunal has taken 13% and the petitioner
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being working as security guard was earning Rs.20,000/-
per moth, but the Tribunal has not considered the same
and has taken the monthly income at Rs.12,000/- and
proper compensation is not awarded towards loss of
amenities and discomfort, loss of income during laid up
period and also loss of income due to disability and sought
for enhancement.
6. Per contra, learned counsel for the Insurance
Company has contended that petitioner has suffered
compression fracture and small fracture on right hand and
the Tribunal has rightly taken the whole body disability at
13%. He is fair enough in submitting that for a person
with no proof of income, the income will be assessed at
Rs.14,000/- per month in the year 2019. Accordingly, he
requests that the loss of income due to disability may be
recalculated and nominal enhancement may be given to
the petitioner. According to him, the rate of interest
awarded at 8% is on the higher site, which requires
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modification and he has supported the impugned
judgment.
7. I have given my anxious consideration to the
arguments advanced on behalf of both parties and perused
the materials on record.
8. There is no dispute as to the accident, cause of
the accident, injuries sustained by the petitioner.
According to the medical records, the petitioner has
suffered four injuries. The P.W.2 medical officer has given
evidence to the effect that the petitioner has suffered 21%
disability to the whole body, but the Tribunal has correctly
taken disability at 13%. The petitioner was aged 52 years
at the time of accident. He was claiming to be working as
security guard and earning Rs.20,000/- per month, but
there is no proof of his income and for this reason, the
Tribunal treated him as a person with no proof of income.
For the year 2019, for a person with no proof of income,
the income will be not less than Rs.14,000/-. Accordingly,
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the said income has to be taken for the purpose of
calculation.
9. Insofar as the loss of income due to disability is
concerned, if the income of the petitioner is taken as
Rs.14,000/- per month, as he was aged 52 years, 10%
future prospects has to be added, then his income comes
to Rs. 15,400/-. Accordingly, loss of income due to
disability is, Rs.2,64,264/- (Rs.15,400/- x 12 x 11 x 13%).
The nature of injuries will certainly make the petitioner
laid up for not less than 4 months, but the Tribunal has
taken only 2 months as laid up period. Accordingly, the
loss of income during laid up period comes to Rs.56,000/-
(Rs.14,000/- x 4). For 'loss of amenities and discomfort'
the Tribunal has awarded Rs.10,000/- alone, which has to
be Rs.50,000/- having regard to the gravity of injuries.
10. I have perused the impugned judgment. The
Tribunal has assessed the compensation towards pain and
agony, medical expenses, incidental expenses, future
medical expenses. The same are kept intact. Accordingly,
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the petitioner is entitled to compensation under the
following heads:
As awarded
Sl. Compensation under different As awarded by this
No. Heads by the Court
Tribunal
1 Pain and Agony 50,000/- 50,000/-
2 Loss of income during laid 24,000/- 56,000/-
up period of 4 months
3 Medical expenses 1,70,936/- 1,70,936/-
4 Attendant charges, food, 10,000/- 10,000/-
nourishment and travelling
expenses
5 Loss of income due to 2,05,920/- 2,64,264/-
disability
6 Loss of amenities and 10,000/- 50,000/-
discomfort
7 Future medical expenses 35,000/- 35,000/-
Total 5,05,856/- 6,36,200/-
If all is summed up, it comes to Rs.6,36,200/- as against
Rs.5,05,856/-, thereby enhancement of Rs.1,30,344/-.
This is the just compensation that the petitioner is entitled
to.
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11. Insofar as the liability is concerned, the Tribunal
has fastened the liability against the owner of the motor
cycle. On perusal of the contentions taken by the
Insurance Company before the Tribunal, the rider of the
motorcycle did not possess valid driving licence at the time
of accident which is clear violation of Section 149(2)(a)(ii)
of the Act. The Insurance Company can avoid its liability,
but since the petitioner is a security guard, he cannot be
forced to go against the owner of the motor cycle. Hence,
the Insurance Company has to pay the compensation and
recover the same from the owner of the motor cycle in the
same proceedings. Accordingly, it is a case of pay and
recovery.
12. The appeal merits consideration. In the result,
the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment is modified.
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(iii) The appellant/petitioner would be entitled for
enhanced compensation of Rs.1,30,344/-
along with interest at the rate of 6% per
annum on the enhanced compensation from
the date of petition till its realization.
(iv) The first respondent No.2/insurance company
is directed to deposit the enhanced
compensation within a period of eight weeks
from the date of receipt of a certified copy of
this judgment and recover the same in the
same proceedings from respondent No.1/
owner of the motor cycle.
(v) The amount in deposit, if any, shall be
transmitted to the Tribunal along with records
forthwith.
Sd/-
JUDGE
VP
