Karnataka High Court

Sri Kirankumar S vs The United India Insurance Company Ltd on 27 November, 2023

                                                    -1-
                                                                 NC: 2023:KHC:42902
                                                                MFA No. 4340 of 2013




                            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 27TH DAY OF NOVEMBER, 2023

                                               BEFORE
                       THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
                                     MFA NO. 4340 OF 2013 (MV-I)
                       BETWEEN:

                       SRI KIRANKUMAR S
                       S/O SOMASHEKAR S D
                       AGED ABOUT 25 YEARS
                       R/O CHEEMANGALA VILLAGE
                       AND POST, SIDHLAGHATTA TALUK
                       CHIKKABALLAPUR DISTRICT - 562 105           ...APPELLANT

                       (BY SRI. MALLESH GOWDA., ADV.)
                       AND:

                       1.      THE UNITED INDIA INSURANCE COMPANY LTD
                               KRUSHI BHAVAN, HUDSON CIRCLE
                               BANGALORE-560 001, REP. BY ITS
                               REGINAL MANAGER

                       2.      V SURESH
                               NO.19/11, RAMRAJ GARDEN
                               GANAPATHI PURA, KONANAKUNTE
                               KANAKAPURA MAIN ROAD
                               BANGALORE-560 052               ...RESPONDENTS
Digitally signed by
MALA K N
                       (BY SRI. T MOHAN KUMAR, ADV. FOR R1;
Location: HIGH COURT       VIDER ORDER DATED 22.08.2016;
OF KARNATAKA
                           NOTICE TO R2 IS DISPENSED WITH)

                            THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                       AGAINST THE JUDGMENT AND AWARD DATED 3.10.2012
                       PASSED IN MVC NO.7738/2011 ON THE FILE OF THE JUDGE,
                       XXII ADDL. SMALL CAUSES, MEMBER, MACT, BANGALORE
                       PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
                       AND SEEKING ENHANCEMENT OF COMPENSATION.

                             THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
                       DAY, THE COURT DELIVERED THE FOLLOWING:
                              -2-
                                         NC: 2023:KHC:42902
                                        MFA No. 4340 of 2013




                      JUDGMENT

In this appeal, the petitioner has challenged the

judgment and award dated 03.10.2012 in

M.V.C.No.7738/2011 passed by the XXII Addl. Small

Causes Court and M.A.C.T., Bengaluru ('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 24.04.2011 at

about 11:00 am while the petitioner was a pillion

rider in the motor cycle bearing Reg.No.KA-05/HC-

9164 on Kanakapura-Bengaluru Main Road near

Harohalli Lake, the rider hit against the road side

stone, fell down, which caused the injuries to the

petitioner. The petitioner after taking treatment at

Sanjay Gandhi Hospital, Bengaluru, approached the

Tribunal for grant of compensation. Claim was

opposed by the Insurance Company. The Tribunal

NC: 2023:KHC:42902

after taking the evidence, by impugned judgment,

awarded compensation of Rs.3,15,520/- 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. Mallesh Gowda,

learned counsel for the petitioner and Sri. T. Mohan

Kumar, learned counsel for the Insurance Company.

5. It is the contention of learned counsel for the

petitioner that the petitioner has suffered fracture of

both the bones of right leg, medical evidence is

placed before the Tribunal through PW-2 to the

effect that the petitioner has sustained 15% of whole

body disability, but the Tribunal did not consider it.

The petitioner is an I.T.I. holder, he was working as

a Machine Operator at M/s United Motors Heavy

Equipments and drawing salary of Rs.9,500/-, in

spite of the evidence, the Tribunal failed to consider

it but assessed at Rs.6,000/-. Compensation

NC: 2023:KHC:42902

assessed under different heads is inadequate and he

sought for enhancement.

6. Per contra, learned counsel for the Insurance

Company has contended that as per the evidence of

PW-2 the treating doctor, the petitioner became

normal after the treatment, no physical disability has

been sustained. For this reason the Tribunal has

considered 12% whole body disability and awarded

the proportionate compensation to the petitioner

which is adequate under the facts and circumstances

of the case 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 careful evaluation of the materials on

record, it is pertinent to note that there was an

accident on 24.04.2011 at about 11:00 am. The

rider of the motor cycle took the petitioner as a

NC: 2023:KHC:42902

pillion rider, hit on the road side stone, capsized

along with the motor cycle, resulting fracture of both

the bones of right leg of the petitioner. The

petitioner was treated at Sanjay Gandhi Hospital,

Bengaluru under hospitalization for 20 days and

underwent surgery. Since the fracture was not

united, he was constrained to undergo 2nd surgery.

In all, the petitioner was under hospitalization for 31

days.

9. PW-2 Dr. Prakashappa. T.H is the Professor

of Orthopedics and the treated doctor of the

petitioner. His evidence points out that the 2

surgeries undertaken for reuniting the fractured

bones of the petitioner, he was under hospitalization

for twice and he has made evaluation that the

petitioner has sustained whole body disability of

15%. The cross-examination of the treating doctor

did not yield anything and the physical disability

assessed by the treating doctor cannot be treated as

NC: 2023:KHC:42902

a disability to the whole body having regard to the

avocation. PW-2 is not aware of what was the work

nature of the petitioner, his educational

qualification, in what manner the injuries affect the

earning capacity of the petitioner.

10. The Tribunal considering the medical

evidence and also avocation and nature of work of

the petitioner, assessed whole body disability at 12%

and it is proper. Hence, 12% of whole body

disability taken by the Tribunal has to be accepted.

11. Exs.P12 to 14 are the medical bills

amounting to Rs.25,571/-. This has been considered

by the Tribunal. The Tribunal has considered the

income of the petitioner at Rs.6,000/- though it has

referred to the I.T.I. marks card of the petitioner at

Ex.P9, salary certificate at Ex.P10, termination letter

at Ex.P11. The petitioner may be an I.T.I. holder,

but he has not examined his employer M/s United

Motors Heavy Equipments in order to explain that

NC: 2023:KHC:42902

the petitioner was paid Rs.9,500/- per month nor

there is any evidence that the petitioner was

removed from the job by virtue of Ex.P11/

termination letter. In the year 2011, a person with

no proof of income will earn not less than Rs.6,500/-

per month. Having regard to the circumstances and

the evidence, it is proper to assess the income of the

petitioner at Rs.6,500/-.

12. The Tribunal has awarded the following

compensation:

Sl. No.             Particulars                      Rs.
   1    Pain and suffering                           50,000
   2    Medical, conveyance and                      50,000
        nourishment expenses
   3    Loss of earnings during the                  35,000
        period of treatment
   4    Loss of future earnings                    1,55,520
   5    Future medical expenses                      10,000
   6    Loss of amenities and enjoyment              15,000
        of life
                       Total                       3,15,520

12.1. Having regard to the nature of the

injuries and medical evidence, the petitioner is

NC: 2023:KHC:42902

required to be compensated adequately. Award of

compensation shall not be a bonanza for the

petitioner nor a peanut, but it is a just

compensation. The petitioner is entitled to

Rs.40,000/- towards pain and sufferings, medical

expenses of Rs.25,571/-, food and nourishment of

Rs.10,000/-, travelling expenses of Rs.5,000/-,

attendant charges of Rs.6,500/-, loss of amenities

and discomfort at Rs.40,000/-. The petitioner has

been laid-up for not less than 6 months due to

fracture of both bones. Hence, loss of income during

laid-up for 6 months at the rate of Rs.6,500/- per

month comes to Rs.39,000/-. Medical evidence did

point out second surgery conducted and removal of

implants to be done in 3rd surgery for which future

medical expenses of Rs.10,000/- can be assessed.

As regarding loss of future earnings is concerned, as

discussed above, whole body disability is taken at

12%, income of the petitioner is taken at Rs.6,500/-

and for the age of the petitioner, applicable

NC: 2023:KHC:42902

multiplier is '18'. For the income of the petitioner at

Rs.6,500/-, 40% has to be added as future

prospects. Then, Rs.6,500/- + Rs.2,600/- =

Rs.9,100/- x 12 x 18 x 12% comes to Rs.2,35,872/-.

There are no other grounds to award compensation.

In total, the petitioner is entitled to:

Sl. No.           Particulars                        Rs.
   1    Pain and sufferings                          40,000
   2    Medical expenses                             25,571
   3    Loss of income during laid-up                39,000
        for 6 months
   4    Food and nourishment                            10,000
   5    Travelling expenses                              5,000
   6    Attendant charges                                6,500
   7    Loss of amenities and                           40,000
        discomfort
   8    Loss of future earnings                     2,35,872
   9    Future medical expenses                       10,000
                     Total                         4,11,943


      Thus,     total     compensation            comes      to

Rs.4,11,943/- as against Rs.3,15,520/- awarded by

the Tribunal, thereby enhancement of Rs.96,423/-.

This is the just compensation that the petitioner

entitled to in the facts and circumstances of the

- 10 -

NC: 2023:KHC:42902

case. Hence, the appeal merits consideration, in the

result, the following: