Karnataka High Court
C D Vishwanath vs Lokesha M J on 14 February, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
-1-
NC: 2024:KHC:6370
MFA No. 3231 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 3231 OF 2022 (MV-
I)
BETWEEN:
C D VISHWANATH,
S/O THAMMAIAH,
R/AT NO. 599, 1st CROSS,
NEAR ABHISHEKA CIRCLE,
HEBBAL,
MYSURU -570 017.
...APPELLANT
(BY SRI. SHANTHARAJ K.,ADVOCATE)
AND:
1. LOKESHA M J
S/O JAVAREGOWDA,
AGED ABOUT 48 YEARS,
R/AT NO. 120/1, RANGASWAMY NILAYA,
KUNTAMMA TEMPLE ROAD,
Digitally signed
by CHAITHRA HOOTAGALLI,
P MYSURU - 570 018.
Location: High
Court of 2. NATIONAL INS. CO., LTD.,
Karnataka BY ITS MANAGER,
NO.1, SRI. SRINIVASA PLAZA,
Ist FLOOR , 5th STAGE,
ADICHUNCHANAGIRI ROAD,
KUVEMPUNAGAR,
MYSURU - 570 023.
...RESPONDENTS
(BY SRI. C. SHANKAR REDDY.,ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED
08.02.2024;)
-2-
NC: 2024:KHC:6370
MFA No. 3231 of 2022
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 31.01.2022 PASSED IN MVC
NO.546/2017 ON THE FILE OF THE PRL. JUDGE, COURT OF
SMALL CAUSES AS A PRESIDING OFFICER, MACT, MYSURU,
C/C OF ADDITIONAL COURT O SMALL CAUSES, MYSURU,
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
This appeal is preferred by the claimant challenging the
judgment and award dated 31.01.2022 passed by Motor
Accident Claims Tribunal, Additional Small Causes And Senior
Civil Judge, Mysore (in short 'the Tribunal') in
MVC.NO.546/2017. This appeal is founded on the premise of
inadequacy and meagre compensation. Hence, the appellant
seeks enhancement of compensation awarded by the tribunal.
2. Parties to the appeal shall be referred to as per their
status before the Tribunal.
3. Brief facts of the case are as under;
The claimant was a pedestrian crossing the Hebbal main
road near Arun Traders, during which time the driver of motor
cycle bearing registration No. KA-09-ES-6855 came from KRS
road in a rash and negligent manner, suddenly took a left turn
NC: 2024:KHC:6370
and dashed against the claimant, which lead to occurrence of
accident. Due to which, the claimant suffered severe injuries
and fracture to the right leg involving tibia spine, fracture of
upper end of fibula and other injuries. The claimant was
admitted to Apollo BGS Hospital, wherein he took treatment as
an inpatient for six days. He underwent surgery and implants
were fixed for right leg.
3.1. Prior to the accident, the claimant was working as a
Conductor in KSRTC and drawing monthly salary of more than
Rs.25,000/-. Due to the injury suffered and the disability, he is
deprived of his future promotion and the avocation as a
Conductor. He has been now demoted under the medical
category to the post of Office Assistant, thereby denting his
future promotion and earning capacity along with the extra
batta charges are deprived. Hence, the claimant filed a claim
petition seeking compensation.
3.2. On the basis of pleadings, the tribunal framed
relevant issues for consideration.
NC: 2024:KHC:6370
3.3. In order to substantiate the issues and to establish
the case, the claimant was examined himself as PW1 and
another witness as PW2 and got marked documents as Exs.P1
to P21. On the other hand, respondent examined two
witnesses as RW1 and RW2 and got marked documents as Exs.
R1 to R5.
3.4. On the basis of material evidence placed on record,
both oral and documentary and on hearing the submissions of
learned counsel for both parties, the tribunal awarded global
compensation of Rs.2,00,000/- along with interest @ 6% per
annum.
3.5. Being aggrieved by the meagre compensation
awarded by the tribunal, the claimant is before this Court
seeking enhancement.
4. It is the vehement contention of the learned counsel
for the claimant that tribunal has committed a gross error in
not analysing the facts and circumstances of the case and
totally failed to consider the injury sustained by the claimant.
Due to which, he has been demoted to the post of Office
NC: 2024:KHC:6370
Assistant, which dented his future earning capacity and
prospects for promotion, which would in turn fetch him higher
income, additional incentives and batta charges. The tribunal
has failed to award future prospects and awarded meagre
compensation under other heads also, which calls for
interference at the hands of this Court. Hence, he contends that
the award requires to be enhanced to a larger extent.
5. Per contra, learned counsel representing the
Insurance Company contends that the claimant no doubt was
working in the KSRTC department as a Conductor. However, he
has not lost his earning capacity as he has been relocated from
the post of Conductor to Office Assistant. Whereby he is
gainfully employed. Therefore, it cannot be said that the
claimant has lost future earning capacity and his financial
capacity is diminished. On this ground, he contended that the
judgment and award of the tribunal is correct and does not call
for interference. Hence, he seeks to dismiss the appeal.
6. The point that calls for consideration before this Court
is:
NC: 2024:KHC:6370
"Whether the claimant is entitled to
enhancement, If so what amount?"
7. Having heard learned counsel for claimant and learned
counsel for respondent-Insurance Company, there is no dispute
with regard to occurrence of accident involvement of the
vehicle, injury sustained by the claimant, reduction of post from
Conductor to the office assistant. The claimant has produced
Exs.P1 to P7, the police records to establish that the negligence
is attributed against the driver of the offending vehicle, which is
not challenged. Therefore, negligence is rightly attributed as
against the rider of the motor cycle. The salary certificate has
been produced by the claimant at Ex.P12, which reveals that he
was earning a salary of Rs.30,911/- p.m. After deducting the
professional tax it comes to Rs.30,711/- p.m which has been
taken as income for assessment of compensation. It is borne
from the records that it is also not disputed that the claimant
who was earlier working as a Conductor has been now demoted
to the post of Office Assistant and also admitted that the salary
remains the same and thereby it is not diminished to what he
was earning prior to the occurrence of the accident. However,
the fact remains that he may not be now promoted to the post
NC: 2024:KHC:6370
of Controller and not get the benefit, if he continues to be the
Conductor. Hence, this Court will have to take this aspect into
consideration that due to the occurrence of the accident, the
growth of the claimant in his professional career to that of the
controller from the post of Conductor, has been totally dented
and diminished. However, he has continued in the same
organisation of the KSRTC and earns the income as he was
getting prior to the occurrence of accident. But it is stated that
there is no prospects of promotion from the present post to any
other higher post.
8. A contra submission is placed by the learned counsel
for the Insurance Company that the claimant from the post of
Office Assistant would be equally entitled to promotion as he
was in the post of conductor. Therefore, the question of
providing future prospects would not arise. I am in agreement
with the learned counsel for the claimant that the promotional
aspects are dented thereby diminishing his future earning
capacity in the promotional post which would fetch higher
income. But what would be the higher income has not been
placed on record. Hence, this Court will have to do a guess
work to understand what would be the future prospects or loss
NC: 2024:KHC:6370
of income in case the claimant had continued to be a conductor
and secure the post of controller. Therefore, taking into
consideration the income of Rs.30,711/-, the claimant would be
entitled to Rs.2,15,584/- (30,711 x 10%= Rs.3,071/- x 12 x 13
= Rs.4,79,076/- x 45%) This Court is on the opinion that to
put back the claimant to the same position as he was prior to
the occurrence of accident along with the income that he is now
securing in the post of office assistant, there could be a loss of
Rs.2,15,584/- as future loss of income. Hence, Rs.2,15,584/-
is awarded under the loss of future income due to disability.
9. The claimant has spent a sum of Rs.1,61,950/-
towards medical expenses as per Exs.P11 and P19. The
tribunal has awarded a sum of Rs.50,441/- deducting
Rs.1,11,509/- paid by Max Buba Health Insurance Limited. I
am in agreement with the learned counsel for the claimant that
this amount was paid by the Health Insurance Company on
health policy taken by the claimant, by investing certain
amount as premium every year. Therefore, this amount cannot
be deducted as the claimant by forethought had wisely invested
by paying premium every month or year and secured the policy
for his health. The entire amount would have to be paid by the
NC: 2024:KHC:6370
Insurance Company i.e., respondent No.2 herein to an extent of
Rs.1,61,950/- without any deductions. Hence, Rs.1,61,950/-
is required to be awarded towards the medical expenses on the
actual bills produced.
10. The tribunal has awarded loss of income for the
period of 117 days at Rs.73,710/- by taking the income at
Rs.18,890/- as against Rs.30,711/-. This amount has not been
awarded to the claimant, in view of earned leave obtained by
the claimant. Therefore, same will have to be granted to the
claimant for a period of four months. Hence, Rs,1,22,844/-
(Rs.30,711 x 4) is required to be awarded under this head.
11. Towards pain, suffering and agony, this Court deems
it appropriate to award Rs.50,000/-under this head.
12. Towards loss of amenities, this Court deem it
appropriate to award Rs.50,000/-under this head.
13. Towards food, nourishment and attendant charges as
the claimant was inpatient for 6 days. This Court deems it
appropriate to award Rs.10,000/- under this head.
- 10 -
NC: 2024:KHC:6370
14. In view of the above, the claimant would be entitled
to total compensation of Rs.6,10,378/- as against
Rs.2,00,000/- as mentioned in the table below:
Heads Amount in Rs.
Loss of future income Rs.2,15,584-00
Medical expenses Rs.1,61,950-00
Earned leave for four months Rs.1,22,844-00
Pain and suffering Rs.50,000-00
Loss of amenities Rs.50,000-00
Food, nourishment and Rs.10,000-00
attendant charges
TOTAL Rs.6,10,378-00
(Rounded off to
Rs.6,10,500-00)
15. Accordingly, I pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The judgment and award dated 31.01.2022 passed in
MVC.No.546/2017 by Motor Accidents Claims Tribunal,
- 11 -
NC: 2024:KHC:6370
Additional Small Causes and Senior Civil Judge, Mysuru is
modified;
iii) The claimant would be entitled to a sum of Rs.6,10,378/-
which is rounded off to Rs.6,10,500/- with interest at
6% p.a;
iv) The enhanced compensation amount shall be paid by the
respondent-Insurance Company with interest at 6% p.a.
Enhancement shall be paid within a period of four weeks
from the date of receipt of a copy of this order;
v) All other terms and conditions stipulated by the tribunal
shall stand intact with regard to deposit and
apportionment.
Sd/-
JUDGE
AM
