Karnataka High Court
Mr Raju vs Mr Anjanappa on 13 October, 2023
Bench: C M Joshi
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MFA No. 6835 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 6835 OF 2018 (MV-I)
BETWEEN:
MR. RAJU,
S/O DEVASHETTY,
AGED ABOUT 45 YEARS,
R/AT: 13TH CROSS,
CHAMUNDESWARI NAGARA,
MANDYA CITY,
MANDYA DISTRICT.
...APPELLANT
(BY SRI RAJA L, ADVOCATE)
AND:
1 . MR. ANJANAPPA,
S/O HANUMANTHAPPA,
MAJOR
(AGE NOT KNOWN TO THE APPELLANT)
Digitally signed R/AT: NEAR RAILWAY GATE,
by T S 5TH CROSS, KALLAHALLI,
NAGARATHNA
Location: High MANDYA DISTRICT.
Court of
Karnataka
2 . THE BRANCH MANAGER,
THE NEW INDIA ASSURANCE
COMPANY LIMITED,
NO.2951, 2ND FLOOR,
J.B.L.ROAD, CHAMUNDIPURAM,
MYSORE,
MYSORE DISTRICT.
...RESPONDENTS
(BY SRI JAGADEESH G.S, ADVOCATE FOR R2;
R1 SERVED)
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MFA No. 6835 of 2018
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 30.04.2018 PASSED IN MVC
NO.1318/2015 ON THE FILE OF THE 1ST ADDITIONAL SENIOR
CIVIL JUDGE, CJM, MANDYA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and award dated
30-04-2018 passed in MVC No.1318/2015 by the learned I
Additional Senior Civil Judge and CJM, Mandya, the
petitioner is before this Court seeking enhancement.
2. It is the case of the petitioner that, on
23.02.2015 when he was riding a moped bearing
Reg.No.KA-11/R-1940 with his sister Smt.Devamma as a
pillion rider from Hosahalli Circle towards V.V.Road at
about 11.00 a.m., another motorcycle bearing Reg.No.KA-
11/EB-6320 came in a rash and negligent manner from
western side and hit the moped and caused accident. As a
result, he sustained grievous injuries and he was shifted to
District Hospital, Mandya, where he took treatment as
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MFA No. 6835 of 2018
in-patient from 23.02.2015 and 12.03.2015, spent
Rs.1,00,000/- towards treatment and an additional sum of
Rs.1,00,000/- is required for further treatment for the
removal of implants and he has spent Rs.50,000/- towards
food, diet, transport, attendant and other incidental
charges. It was further contended that, the petitioner was
aged 42 years as on the date of the accident, working as a
cook in Patel military hotel and earning Rs.15,000/- p.m.
and on account of the accidental injuries, he had sustained
permanent disability, as a consequence of which, there
was loss in his earning capacity.
3. It was also stated that the respondent No.1 is
the owner of the motorcycle and the respondent No.2 is
the insurer of the motorcycle and the contract of insurance
was in force as on the date of the accident and hence,
they are liable to pay the compensation.
4. On issuance of notice by the Tribunal,
respondent No.1 remained absent and he was placed ex-
parte and respondent No.2-Insurance Company appeared
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through its counsel and filed its written statement
contending that the rider of the motorcycle bearing
Reg.No.KA-11/EB-6320 did not possess valid and effective
driving licence to ride the motorcycle in question as on the
date of the accident and has sought to contest the petition
on all the grounds available to the owner and the rider of
the motor cycle an d prayed to dismiss the petition.
5. On the basis of the above pleadings of the
parties, the Tribunal has framed appropriate issues and
petitioner examined himself as PW.1 and examined 3
witnesses as PWs.2 to 4 and Exs.P1 to 127 were marked.
On the contrary, the respondent No.2 had examined its
Deputy Manager by way of affidavit as RW.1 and marked 3
documents as Ex.R1 to 3.
6. The Tribunal after hearing the parties, allowed
the petition in part, dismissed the petition against the
insurance company and directed the respondent No.1 to
deposit the compensation of Rs.1,66,927/- under the
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following heads together with interest at 9% p.a. from the
date of petition till its realization:
Loss on disability Rs.1,24,800/-
Medical expenses Rs. 22,127/-
Pain and suffering Rs. 10,000/-
Food, diet, convenience etc. Rs. 10,000/-
Total Rs.1,66,927/-
7. Being aggrieved by the said judgment and
award, the Insurance Company has approached this Court
in appeal.
8. On issuance of notice, the respondent No.2
appeared through his counsel before this Court.
Respondent No.1 served and unrepresented.
9. Heard the arguments of learned counsel for the
appellant and the learned counsel for the respondent
No.2-Insurance Company.
10. Learned counsel for the appellant-petitioner
submits that the conclusions reached by the Tribunal are
not correct and the Tribunal failed to note that the MLC
Register at Ex.R1 contained an extra paper pasted which
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contained the mention of an assault. It is submitted that
compensation assessed by the Tribunal also is abysmally
low and many heads on which the compensation is to be
granted was not at all considered by it.
11. Per contra, learned counsel for the respondent
No.2 contend that the Tribunal has considered the
evidence in the right perspective and has come to the
conclusion that the liability of the Insurance Company is to
be absolved. It is submitted that firstly there was no such
accident involving the vehicle insured by the respondent
No.2. In this regard, he relies on the MLC record which is
at Ex.R1. Secondly, it is submitted that the rider of the
offending vehicle was Nagesh and his alias name as
Nagaraj was not found in the complaint which clearly
indicate that the rider of the motorcycle was subsequently
implicated in order to make the respondent No.2 liable to
pay the compensation.
12. The petitioner relies on his own testimony, the
testimony of the pillion rider-PW.2 and the testimony of
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PW.3 who is the complainant and his employer. He also
relies on the Police papers in order to contend that it was
an accident but not a case of assault or false implication of
the vehicle.
13. In the complaint at Ex.P1 lodged by PW.3, it is
stated that PW.3 was an eyewitness to the accident on
23.02.2015. While he was purchasing certain items from a
shop at Hosahalli Circle, the petitioner along with PW.2
Devamma as a pillion rider, was riding a TVS moped and
the offending TVS motorcycle came in negligent manner
and dashed to the two wheeler of the petitioner. It was
stated that he saw the accident and the name of the rider
of offending vehicle was Nagesh. Since the said Nagesh
did not turn up as per the promise to meet the medical
expenses of the petitioner, he lodged a complaint on
24.02.2015. The Police acted upon the said complaint,
visited the spot, conducted the spot mahazar, seized the
moped of the petitioner which had not suffered any
damage. Thereafter, on 25.02.2015, the motorcycle of the
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respondent No.1 was seized which also had not sustained
any damage. However, the MVI report at Ex.P5 show that
left side crash guard of the motorcycle and the front left
side indicator of the moped were damaged.
14. The testimony of the PW.1 is in consonance
with his contention in the petition. In the cross-
examination he states that some auto drivers had shifted
him to the hospital and PW.3, the complainant had visited
the hospital and later informed the Police. Nowhere he
states that PW.3 was an eyewitness. He denies that he
had informed the Medical Officer that the injuries were
sustained in the assault but not in the accident. He also
denies that Nagesh and Nagaraj are two different persons.
PW.2-Devamma say that she also had sustained injuries in
the accident and in the cross-examination, she say that
she do not know the number of the offending vehicle. She
also denies that the injuries were due to assault.
15. PW.3-H.K.Subash Chandra states in his
examination-in-chief that he had shifted the injured to the
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MFA No. 6835 of 2018
hospital and Nagesh was the rider of the offending vehicle.
He also states that the delay in filing the complaint was
due to a promise which was not kept by the said Nagesh
to compromise the matter. In the cross-examination, it is
elicited that he was not present at the spot when the
accident happened and he only visited when he came to
know about the accident. He pleads ignorance as to who
was the rider of the motorcycle bearing No.KA-11/EB-
6320. He also states that the rider Nagesh was not
present at the spot. It is elicited that he only came to
know about the rider when he visited his house at
Kallahalli, when the said Nagesh volunteered that he was
the rider. Interestingly, it was suggested to him by the
counsel for respondent No.2 that there was a scuffle
between Nagesh and the petitioner since they had brushed
their vehicles to each other. Such suggestion is denied by
him.
16. The respondent No.2/Insurance Company has
produced the MLC register extract at Ex.R1 and R1(a). It
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discloses that the history of the injury is mentioned to be
assault. The concerned medical officer has affixed a paper
chit to the MLC referring the matter to the orthopedic
surgeon where also it was stated that it was the case of
history of assault.
17. It is evident from the perusal of the testimony
of PW.3 as elicited in the cross-examination of PW.1 and
also from Ex.R1 that initially it was shown to be a case of
assault. Curiously, PW.3 states that he only came to know
about the name of rider of the motorcycle, when he visited
Kallahalli. He was not an eyewitness. The PW.2 do not
identify or state that respondent No.1 was the rider of the
motorcycle. The learned counsel for the petitioner points
out that a paper chit was affixed to the MLC register at
Ex.R1, which mentioned about the assault and that the
said chit cannot be a ground to disbelieve the version of
the petitioner. It is not only mentioned on the chit, but
also on the facing page of the MLC register that it was a
case of assault.
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18. The Tribunal noted these discrepancies in the
evidence of the petitioner and has come to the conclusion
that the delay in filing the complaint, mention of assault in
the MLC extract and the testimony of PW.3 cross-
examination sufficiently probabilize that it was a case of
assault but not accident. It is evident that except a stray
suggestion by learned counsel for respondent No.2, there
is nothing on record which shows that the injuries were
sustained in the accident.
19. When the Tribunal has come to the conclusion
on a close scrutiny on the evidence available on record
that the version of the petitioner that there was an
accident is doubtful and the respondent No.2/Insurance
Company has sufficiently brought on record that the
collusion between the respondent No.1 and the petitioner
cannot be ruled out. It noted that the respondent No.1 did
not come forward to adduce any evidence and therefore, it
held that the liability has to be fastened against the
respondent No.1. I do not find any reason to differ with
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the conclusions reached by the Tribunal. It cannot be said
that the Tribunal acted upon surmises or conjectures. In
the first appeal, the views of the trial Court cannot be
interfered with simply because another view is also
possible.
20. So far as the quantum of the compensation is
concerned, learned counsel appearing for the appellant
submit that the Tribunal has not awarded any
compensation under the head of 'loss of amenities in life'
and 'loss of earning during laid up period'. It is submitted
that the compensation awarded under other heads is also
low.
21. The Tribunal has considered the notional
income of the petitioner at Rs.8,000/-. As per the
guidelines issued by the Karnataka State Legal Services
Authority for settlement of disputes before Lok-Adalath,
the notional income prescribed for the year 2015 is
Rs.9,000/-. In umpteen number of decisions, this Court
has held that the guidelines are in general conformity with
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the wages fixed under Minimum Wages Act. Therefore, the
notional income has to be considered at Rs.9,000/-.
22. The petitioner had sustained fracture of neck of
left femur and other minor injuries. He was treated with
CRIF with nailing and had to undergo surgery. Therefore,
the compensation awarded to the petitioner under the
head of 'pain and suffering' is on the lower side and the
same is enhanced to Rs.40,000/-.
23. PW.4 has opined that there is a disability of
30% to the left lower limb of the petitioner and the
Tribunal has considered the functional disability at 10%
which is proper and correct. Hence, the compensation
under the head of 'loss of future income' is calculated as
Rs.9,000/- X 12 X 13 X 10% = Rs.1,40,400/-. As a
consequence, considering the nature of the injuries
suffered and the period of inpatient treatment, it would be
proper to hold that the petitioner could not have resumed
his work at least for a period of 2 months and a sum of
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Rs.18,000/- is awarded to him under the head of 'loss of
income during laid up period'.
24. The compensation granted by the Tribunal
under the head of 'Medical Expenses' and 'Food, diet and
conveyance etc' do not require any enhancement.
25. The Tribunal has not awarded any
compensation under the head of 'loss of amenities in life'.
Hence, a sum of Rs.10,000/- is awarded to the petitioner
under this head.
26. Thus, the petitioner is entitled for a modified
compensation as under:
AMOUNT
PARTICULARS
(IN RS.)
Pain and suffering 40,000/-
Loss of future income 1,40,400/-
Loss of income during laid up
18,000/-
period
Medical Expenses 22,127/-
Food, diet and conveyance etc 10,000/-
Loss of amenities in life 10,000/-
TOTAL 2,40,527/-
Less awarded by Tribunal 1,66,927/-
Enhancement 73,600/-
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27. Thus, the petitioner is entitled for a sum of
Rs.73,600/- in addition to what has been awarded by the
Tribunal. Hence, the following:
ORDER
(i) Appeal is allowed in part
(ii) The impugned judgment and award
passed by the Tribunal is modified by enhancing
the compensation of Rs.73,600/- together with
interest at 6% p.a. from the date of petition till
its realization, in addition to the compensation
awarded by Tribunal.
(iii) Respondent No.1 is directed to deposit
the compensation amount including the
enhanced compensation together with interest
within a period of 4 weeks.
(iv) The other conditions and
apportionment remain unaltered.
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(v) The dismissal of the petition as
against the Insurance Company is confirmed.
Sd/-
JUDGE
NR/-
