Karnataka High Court
A S Manjunath vs R P Abdul Rahman on 28 February, 2024
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NC: 2024:KHC-D:4613
MFA No. 102348 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 102348 OF 2014 (MV)
BETWEEN:
A. S. MANJUNATH S/O. A. SHEKARAPPA,
AGE: 31 YEARS, OCC: CIVIL ENGINEER,
R/O. W.NO.20, SHIVA PARVATHI NILAYA,
D.NO.19, 4TH CROSS, NEHRU COLONY, BELLARY.
...APPELLANT
(BY SMT. RESHMA MADIWALAR, ADV. FOR
SRI. T. HANUMAREDDY, ADVOCATE)
AND:
1. R. P. ABDUL RAHMAN S/O. LATE P. ABDUL AZEEZ SAB,
AGE: MAJOR, OCC: OWNER OF BUS BEARING
NO.KA-34/A-3390, R/O. H.NO.6, WARD NO.15,
VADDARA BANDA, BELLARY.
2. THE BRANCH MANAGER,
NEW INDIA ASSURANCE CO. LTD, BELLARY.
Digitally
signed by
3. H. BASAVARAJ S/O. HONNURAPPA,
ROHAN
ROHAN HADIMANI AGE: 32 YEARS, OCC: DRIVER OF THE
HADIMANI T
T Date:
2024.02.29
BUS BEARING NO.KA.34-A 3390,
10:37:26
+0530 R/O. AMBEDKAR COLONY, RAMPURA,
MOLAKALMURA TALUK, CHITRADURGA DISTRICT.
...RESPONDENTS
(BY SRI. G. N. RAICHUR, ADV. FOR RESPONDENT NO.2,
NOTICE TO RESPONDENT NO.1 DISPENSED WITH)
THIS MFA IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT,
PRAYING TO CALL FOR RECORD IN M.V.C NO.146/2013 ON THE FILE
OF THE M.A.C.T-II AT BELLARY, DATED 07/02/2014 AND ALLOW THE
APPEAL AND AWARD THE REMAINING COMPENSATION OF RS.
8,70,004/- EXCEPT THE COMPENSATION AWARDED BY THE
TRIBUNAL AND ETC.
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MFA No. 102348 of 2014
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the
consent of learned counsel for the parties, it is taken up for
final disposal.
2. This appeal is by the claimant seeking enhancement
of compensation being aggrieved by the judgment and award
dated 7.2.2014 in MVC No.146/2013 by the learned Member,
MACT-II, Bellary (for short, 'Tribunal').
3. Brief facts giving rise to file this appeal are that on
10.10.2012 at 11 p.m., the appellant/claimant was proceeding
on his motorcycle bearing registration No.KA-34/S-5210 from
his office to residence and when he reached RTH Hotel, Bellary,
bus bearing registration No.KA-34/A-3390 being driven by
respondent No.1 in a rash and negligent manner, dashed to the
motorcycle of the appellant. Due to which, he fell down and
sustained fractural injuries. It is stated that the
claimant/injured was aged 30 years as on the date of the
accident and working as Civil Engineer, earning a sum of
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Rs.30,000/- per month. Hence, he filed claim petition seeking
compensation.
4. Before the Tribunal, the Insurance Company
contested the proceedings by filing its statement of objections
and denied the entire claim petition averments. It is averred
that respondent No.1/driver of the bus was not holding valid
and effective driving license as on the date of the accident.
Hence, sought dismissal of the claim petition.
5. The appellant/claimant examined himself as PW1
and one doctor examined as PW2 apart from marking
documents Exs.P1 to P19. The respondents did not examine
any witness, but marked three documents as Ex.R1 to R3 with
consent.
6. The Tribunal on appreciation of the entire material
on record, allowed the claim petition in part awarding a
compensation of Rs.1,29,996/- with interest at 6% per annum
from the date of petition till date of payment.
7. Heard the learned counsel Smt.Reshma Madiwalar,
for Sri.T.Hanumareddy, learned counsel for the appellant and
learned counsel Sri.G.N.Raichur for the respondent/insurer.
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8. Learned counsel Smt.Reshma Madiwalar for the
appellant/claimant submits that the Tribunal committed an
error in assessing disability of the appellant at 4% to the whole
body contrary to the evidence of PW2 and Ex.P8-Disability
Certificate. Hence, she seeks to consider the same on the
higher side. She further submits that the Tribunal committed
an error in assessing income of the injured at Rs.15,000/- per
month, contrary to the income tax returns at Ex.P15 and
Ex.P16. It is submitted that the award of compensation by the
Tribunal under the head of pain and suffering is on the lower
side and no compensation is awarded under the head of loss of
amenities and loss of income during treatment period. Thus,
she seeks to consider the same and award appropriate
compensation.
9. Per contra, Sri.G.N.Raichur, learned counsel for the
respondent/Insurance Company supporting the impugned
judgment and award of the Tribunal would submit that the
Tribunal is justified in denying the compensation under the
head of loss of future earning, as the appellant has not
produced any iota of evidence before the Tribunal to
substantiate the contention that due to the accident, the
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appellant is unable to earn and his income is substantially
reduced. He further submits that insofar as assessment of
income is concerned, the Tribunal has taken note of income tax
returns and assessed the income, which also does not call for
interference. He also submits that the Tribunal is justified in
awarding a sum of Rs.1,29,996/- with interest at 6% per
annum and therefore, no enhancement is required to be made
in this appeal. Thus, he seeks dismissal of the appeal.
10. Having heard the learned counsel for the parties
and on perusal of the material available on record, the only
point that would arise for consideration in this appeal is
whether the claimant would be entitled to enhanced
compensation?
11. Answer to the above point would be in the
'affirmative' for the following reasons:
12. There is no dispute with regard to occurrence of the
accident on 10.10.2012 resulting in injuries to the claimant.
The Tribunal is justified in assessing disability of the appellant
at 4% taking note of evidence of PW2-doctor coupled with
Ex.P8-Disability Certificate. Hence, this Court does not find any
error in the said assessment of disability by the Tribunal. The
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Tribunal taking note of income tax returns for the year 2010
and 2012 at Ex.P15 and P16, assessed income of the injured at
Rs.1,80,000/- per annum, i.e., Rs.15,000/- per month. This
Court is of the considered view that the Tribunal is justified in
taking note of average income for two financial years and
arriving at income of Rs.1,80,000/- per annum. Hence, the
award of compensation on the head of loss of future earning
capacity of Rs.1,15,200/- is just and proper, needs no
interference.
13. This Court is of the view that the Tribunal
committed an error in awarding meager compensation under
the head of pain and suffering. Taking note of medical
evidence on record and nature of injuries suffered and
treatment taken by the appellant, it would be just and
appropriate to award additional sum of Rs.25,000/- under the
head of pain and suffering. The Tribunal committed an error in
not awarding any compensation on the head of loss of
amenities. The appellant has suffered two injuries and was an
inpatient for some time. Hence, it would be just and
appropriate to award a sum of Rs.30,000/- under the heard of
loss of amenities. The Tribunal has not awarded any
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compensation under the head of loss of income during laid up
period. Admittedly, the appellant has taken treatment at VIMS
Hospital, Bellary and also private hospitals, hence, it would be
just and appropriate to award a sum of Rs.30,000/- under the
head of loss of income during laid-up period. The award of
compensation under other heads is just and proper, which
requires no modification. Thus, the appellant/claimant would
be entitled to modified compensation on the following heads:
HEADS AMOUNT
(in Rs.)
Towards pain and suffering 30,000/-
Towards Medical expenses 5,796/-
Nourishment charges 2,000/-
Traveling and other expenses 2,000/-
Loss of future earnings due to disability 1,15,200/-
Loss of amenities 30,000/-
Loss of income during laid-up period 30,000/-
Total 2,14,996/-
Rounded off to 2,15,000/-
14. Thus, the claimant shall be entitled to total
compensation of Rs.2,15,000/- as against Rs.1,29,996/-
awarded by the learned Tribunal.
15. It is noticed that this Court vide order dated
6.1.2015, while condoning the delay in filing the appeal, made
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an observation that the appellant/claimant would not be
entitled for interest for the delayed period, in case if he
succeeds in the appeal. Hence, the claimant would not be
entitled for the interest on the enhanced compensation for the
delayed period.
16. In the result, this Court proceeds to pass the
following:
ORDER
a) Appeal stands allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimant would be entitled to total
compensation of Rs.2,15,000/- as against
Rs.1,29,996/- awarded by the Tribunal.
c) The enhanced compensation amount shall carry
interest at the rate of 6% per annum from the
date of petition till the date of payment.
d) The Insurance Company shall deposit the
enhanced compensation amount with accrued
interest before the Tribunal within a period of
six weeks from today.
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e) On such deposit, the same shall be released in
favour of the appellant/claimant.
f) Needless to say that the claimant shall not be
entitled to any interest on the enhanced
compensation for the delayed period. Registry
to take note of the same while drawing award.
g) Draw modified award accordingly.
Sd/-
JUDGE
JTR
