Karnataka High Court
Raghu D vs Madegowda on 7 August, 2024
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NC: 2024:KHC:31527
MFA No. 7640 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 7640 OF 2013 (MV-I)
BETWEEN:
RAGHU D
S/O DHARMARAJU
AGED ABOUT 23 YEARS
R/O C/O K. KRISHNAPPA
POLICE QUARTERS, HALASURE
BANGALORE-560 008
PERMANENT RESIDENT NO.78
AGRAHARA-KANAKAPURA-562 117
RAMANAGARA DISTRICT
...APPELLANT
(BY SRI. SHRIPAD V. SHASTRI, ADVOCATE [VC])
AND:
1. MADEGOWDA
Digitally signed by MAJOR
PRAJWAL A SINCE DIED BY HIS WIFE
Location: HIGH COURT & LR ROOPA
OF KARNATAKA
W/O LATE MAHADEVA
MAJOR
R/AT NEAR AGANAWADI
BASAVESHWARANAGAR
KANAKAPURA TALUK
RAMANAGARA DISTRICT
2. THE NEW INDIA ASSURANCE
COMPANY LIMITED
REGIONAL OFFICE
NO.72, UNITY BUILDING
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MFA No. 7640 of 2013
ANNEX, MISSION ROAD
BANGALORE-27
...RESPONDENTS
(BY SRI. KISHORE KUMAR REDDY, ADVOCATE FOR R2;
R1-SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 20.03.2013 PASSED IN MVC
NO.8184/2011 ON THE FILE OF THE VIII ADDITIONAL SMALL
CAUSE JUDGE, & XXXIII ACMM, MEMBER, MACT, COURT OF
SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In this appeal, the petitioner has challenged the
judgment and award dated 20.03.2013 in
M.V.C.No.8184/2011 passed by the MACT-V, Court of
Small Causes, Bangalore City ('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 22.12.2009 at
about 10.30 p.m. the petitioner being the cleaner, was
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traveling in a Lorry bearing Regn.No. No,KA.05.AD.3004
near Rajakalam Co-operative Bank within the limits of
Kanchi Police Station, the driver lost control over the
vehicle and dashed against another lorry bearing
Registration No.KA.01.A.9369 which was going ahead of it.
Due to the impact, the petitioner sustained grievous
injuries to his right leg. After taking treatment, he
approached the Tribunal for grant of compensation of
Rs.10,00,000/-. The claim was opposed by the Insurance
Company. After taking the evidence and on hearing both
parties, the Tribunal by the impugned judgment, awarded
compensation of Rs.2,07,400/- 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 Shripad V.Shastri,
learned counsel for the petitioner and
Sri Kishore Kumar Reddy, learned counsel for the
Insurance Company through video conference.
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5. It is contended by the learned counsel for the
petitioner that, due to the accident, the petitioner being a
Cleaner of the lorry has suffered amputation of toes in the
right foot, which is affecting his earning capacity. Medical
evidence is placed before the Tribunal showing 23%
disability to the whole body. The Tribunal has considered
the income of the petitioner at Rs.3,500/- which is on the
lower side and petitioner's earning per month may not be
less than Rs.10,000/-. No compensation is awarded
towards incidental expenses and marriage prospects is not
assessed.
6. It is further contended that the driver of the
lorry was possessing a valid driving licence but,
unfortunately on the date of accident, the DL was expired
and he has submitted the same for renewal and one
month later, it was renewed. The Tribunal has rejected the
claim of the petitioner though the said fact of renewal was
brought to its notice. Tribunal has recorded a finding that
there is no evidence brought on record to explain that the
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driving licence was renewed. Therefore, the Insurance
Company is liable to pay the compensation.
7. Per contra, learned counsel for the Insurance
Company has contended that the petitioner has suffered
amputation of only two toes of right foot but, the Doctor
has given excess disability of 23% to the whole body.
Having regard to the amputation of only two fingers of
right leg, the Tribunal has rightly assessed disability at
15% and assessed the loss of income.
8. With regard to liability is concerned, it is
contended that the Tribunal has rightly recorded its finding
that as on the date of accident, the driver of the lorry did
not hold valid driving licence and Insurance company can
avoid its liability to pay the compensation.
9. I have given my anxious consideration to the
arguments addressed on behalf of both sides and also
perused the materials on record.
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10. The material on record points out that there
was an accident on 22.12.2009 at 10.30 p.m. near
Rajakalam Co-operative Bank within the limits of Kanchi
Police Station involving two lorries wherein the petitioner
was an inmate of the lorry bearing
Regn.No.KA.05.AD.3004 and he has suffered foot injury,
the material evidence on record and the photographs
produced clearly point out that the petitioner has suffered
amputation of all the five fingers of right foot. As rightly
contended by the learned counsel for the Insurance
Company, the workmen compensation schedule fixes 20%
disability in case of amputation of toes of both feet.
Medical evidence clearly establishes that amputation is
going to affect earning capacity of the petitioner as
Cleaner. Medical evidence even if it is assumed that it is
exaggerated, it is assessed at 20% to the whole body.
Thus, 20% disability is to be considered for assessing his
loss of income.
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11. In the year 2009, a person would not have
earned less than Rs.9,000/-. Rs.3,500/- assessed by the
Tribunal is on the lower side. But, since the petitioner
himself has stated that he was earning Rs.5,000/- per
month, the same is taken as his monthly income. The age
of the petitioner at the time of accident was 22 years and
multiplier applicable is `18'. Thus, the loss of future
earning due to disability would be Rs.2,16,000/-
(Rs.5,000/- x 12 x 18 x 20%).
12. Considering all these aspects, it is just and
proper to enhance the compensation payable to the
petitioner. The Tribunal has awarded Rs.40,000/- towards
pain and agony and Rs.15,000/- towards medical
expenses. The same is kept in tact. The nature of injury
would have kept the petitioner away from his work
approximately for a period of 5 months. Thus, loss of
earning during laid-up period would be Rs.25,000/-
(Rs.5,000 x 5 = 25,000), loss of amenities and
unhappiness would be Rs.40,000/-, Attendant charges
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Rs.5,000/-, For Food and Nourishment, it would be
Rs.5,000/- and for transportation expenses, Rs.3,000/- is
assessed. Since the petitioner has lost his toes, if an
amount of Rs.25,000/- is assessed towards loss of
marriage prospects, it would compensate him. Thus, the
appellant/petitioner is entitled to compensation as under;
Sl. No. Particulars Rs.
1 Pain and sufferings 40,000/-
2 Medical expenses 15,000/-
3 Attendant charge 5,000/-
4 Transportation 3,000/-
5 Food & Nourishment 5,000/-
6 Loss of Amenities and 40,000/-
discomforts
7 Loss of earning during laid- 25,000/-
up period
8 Loss of earning due to 2,16,000/-
disability
9 Loss of Marriage Prospects 25,000/-
Total 3,74,000/-
Compensation awarded 2,07,400/-
by the Tribunal
Enhancement 1,66,600/-
rounded off
to
Rs.1,67,000/-
It is the just compensation, the petitioner is entitled
to in the facts and circumstances of the case.
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13. As regards liability is concerned, the record
shows that the driver was holding effective driving licence
to drive the lorry. Before the accident, the DL came to be
expired and not renewed. DL was renewed one month
after the accident. As the insurance policy as per Ex.R1 is
issued subject to valid driving licence and for the driver
not holding the licence, the Insurance Company can evade
its liability. But, at the same time, the petitioner cannot be
asked to approach the owner of the vehicle after 18 years.
Hence, Insurance Company has to deposit the
compensation and recover it from the owner of the Lorry
involved in the accident. Hence, it has to make good the
compensation. Accordingly, 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.1,67,000/- with
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interest of 6% p.a. from the date of
petition till the date of deposit.
(iv) The owner of the Lorry is liable to pay the
compensation.
(v) The Insurance Company is directed to
deposit the compensation with interest at
6% p.a. within eight weeks from the date
of receipt of a certified copy of the
judgment and recover the same from the
owner of the lorry in the same
proceedings.
SD/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
SK
