Karnataka High Court

Madhu A B vs Ganghu A B on 29 February, 2024

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                        NC: 2024:KHC:8622
                                                    MFA No. 5729 of 2023
                                                C/W MFA No. 5028 of 2023



                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                     DATED THIS THE 29TH DAY OF FEBRUARY, 2024
                                       BEFORE
                    THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
                   MISCELLANEOUS FIRST APPEAL NO.5729 OF 2023 (MV-I)
                                         C/W
                   MISCELLANEOUS FIRST APPEAL NO.5028 OF 2023(MV-I)

              IN MFA NO.5729/2023:
              BETWEEN:

                    MADHU A.B.
                    S/O.BASAVARAJU A.S.
                    AGED ABOUT 34 YEARS
                    R/AT K.SHETTAHALLI
                    VILLAGE AND HOBLI
                    SRIRANGAPATNA TALUK
                    MANDYA DISTRICT-571 438
                                                             ...APPELLANT
              (BY SRI SREENIVASAN M.Y., ADVOCATE)
              AND:
              1.    GANGHU A.B.
                    S/O.BASAVARAJU A.S.
                    AGED ABOUT 34 YEARS
                    R/AT NO.144
Digitally           ALAKERE VILLAGE
signed by B         KERAGODU HOBLI
LAVANYA
                    MANDYA TALUK
Location:           MANDYA DISTRICT-571 415
HIGH
COURT OF
KARNATAKA     2.    THE MANAGER
                    THE NATIONAL INSURANCE CO.LTD.
                    ADI CHUNCHANAGIRI ROAD
                    KUVEMPU NAGARA
                    MYSURU-560 009
                                                         ...RESPONDENTS
              (BY SMT.MANJULA N.TEJASWI, ADVOCATE FOR R-2;
                  NOTICE TO R-1 IS DISPENSED WITH V/O/DTD.22.08.2023)
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                                         NC: 2024:KHC:8622
                                     MFA No. 5729 of 2023
                                 C/W MFA No. 5028 of 2023



     THIS MISCELLANEOUS FIRST APPEAL IS UNDER SECTION
173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND
AWARD DATED 31.01.2023    PASSED IN MVC NO.1958/2019
BY THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT,
SRIRANGAPATNA.

IN MFA NO.5028/2023:
BETWEEN:
     THE MANAGER
     THE NATIONAL INSURANCE CO.LTD.
     ADI CHUNCHANAGIRI ROAD
     KUVEMPU NAGARA, MYSURU-570 023
     REP.BY THE REGIONAL MANAGER
     NATIONAL INSURANCE CO.LTD.
     NO.144, SHUBHARAM COMPLEX
     M.G.ROAD, BENGALURU-560 001
                                              ...APPELLANT
(BY SMT.MANJULA N.TEJASWI, ADVOCATE)
AND:
1.   MADHU A.B.
     S/O.BASAVARAJU A.S.
     AGED ABOUT 34 YEARS
     R/AT K.SHETTAHALLI
     VILLAGE AND HOBLI
     SRIRANGAPATNA TALUK
     MANDYA DISTRICT
     MANDYA-571 401

2.   GANGHU A.B.
     S/O.BASAVARAJU A.S.
     AGED ABOUT 34 YEARS
     R/AT D.NO.144
     ALAKERE VILLAGE
     KERAGODU HOBLI
     MANDYA TALUK
     MANDYA DISTRICT 571 401
                                          ...RESPONDENTS
(BY SRI SREENIVASAN M.Y., ADVOCATE FOR R-1;
    R-2 IS SERVED & UNREPRESENTED)
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                                             NC: 2024:KHC:8622
                                         MFA No. 5729 of 2023
                                     C/W MFA No. 5028 of 2023



     THIS MISCELLANEOUS FIRST APPEAL IS UNDER SECTION
173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 31.01.2023 PASSED IN MVC NO.
1958/2019 BY THE PRINCIPAL SENIOR CIVIL JUDGE AND
MACT, SRIRANGAPATNA.

     THESE APPEALS ARE COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

These two appeals are preferred by the Insurance

Company as well as the claimant challenging the judgment

and award dated 31.01.2023 passed in

MVC.No.1958/2019 by the Court of the Principal Senior

Civil Judge and MACT, Srirangapatna (for short, 'the

tribunal').

2. Since these appeals are listed for admission, with

consent of learned counsels for parties, the appeals are

taken up for final disposal.

3. The appeal preferred by the claimant is founded

on the premise of inadequate and meager compensation

awarded by the tribunal, whereas the appeal preferred by

the Insurance Company is on the ground of arbitrary

award of compensation, requiring to be set-aside.

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4. Parties to this appeal shall be referred to as per

their status before the Tribunal.

5. Brief facts of the case are as under:

On 28.09.2019 at about 7.30 a.m., near the land of

K.P.Veerappa, Alkere Village, the claimant was proceeding

on a motor bike bearing registration No.KA-11-EA-4888 as

a pillion rider and the rider of the said bike had ridden the

same in a rash and negligent manner, at that time, one

dog came in front of his bike and he lost control over the

bike and due to which, the said bike fell on the right side

of the road. Due to the said impact, the claimant/pillion

rider fell down and sustained grievous injuries to his right

hand, head, forehead, right knee and other parts of the

body. He was immediately shifted to Mandya Government

Hospital, wherein he has taken first aid treatment and

thereafter, to Narayana Multi Speciality Hospital, Mysuru,

wherein he was treated as an inpatient and underwent

surgery as his right hand bone was fractured and rod,

screw and plate were inserted, sutured his fore-head and

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head and right knee were bandaged and another surgery

would be required in future, as per the Doctor and he was

inpatient for 8 months by taking treatment and thereafter

discharged from the Hospital, he was taking follow up

treatment once in 15 days.

5.1 It is stated that the claimant was hale and

healthy at the time of accident. He was working as a Police

Constable at Women's Police Station, Mandya and earning

a sum of Rs.30,198/- per month. Due to the injuries

sustained in the accident, he suffered disablement and he

is not in a position to work as he was doing prior to the

accident, as such, he has lost the earning capacity and lost

future income. Hence, he filed a claim petition seeking

compensation.

5.2 On service of notice, the respondents have filed

written statement denying the claim made by the claimant

and sought for dismissal of the claim petition.

5.3 Based on the pleadings, the Tribunal framed

relevant issues for consideration.

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5.4 In order to substantiate the issues and to prove

the case, the claimant got examined himself as PW.1 and

got marked documents as per Exs.P1 to P16 and examined

the Doctor as CW.1 and got marked documents as per

Exs.C1 to C5. On the other hand, the respondents neither

examined any witness nor got marked any document.

5.5 On the basis of material evidence produced by

the parties, the tribunal awarded the compensation of

Rs.5,74,500/- with interest @ 6% p.a. and held that

respondent Nos.1 and 2 to be jointly and severally liable to

pay the compensation to the claimant. However, in view of

the policy, respondent No.2-Insurance Company was

directed to deposit the compensation before the tribunal

within one month from the date of the order.

5.6 Being aggrieved by the same, the claimant is

before this Court in MFA.No.5729/2023 seeking

enhancement of compensation and the Insurance

Company is before this Court in MFA.No.5728/2023

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seeking to set aside the judgment and award passed by

the tribunal on the ground of it being arbitrary.

6. It is the vehement contention of learned counsel

for claimant that the tribunal has committed an error in

awarding meager compensation, which calls for

interference at the hands of this Court. Hence, he seeks to

allow his appeal and enhance the compensation.

7. Per contra, learned counsel for Insurance

Company vehemently contends that the judgment and

award passed by the tribunal is liable to be set-aside on

the ground of arbitrariness and contrary to the material

evidence placed on record. It is contended by learned

counsel that while awarding compensation towards loss of

income, the tribunal has failed to consider the admission

given by the claimant in his cross-examination that even

after the accident, there is no reduction in his salary and

between August, 2019 and June, 2022, his salary has

been enhanced by Rs.8,000/-, which clearly establishes

that the claimant has not sustained any loss of income due

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to the injuries sustained by him in the accident. CW.1-

Doctor has opined that his fractured bone has been united

and implant has been removed, as such, there is neither

functional disability nor physical disability to the claimant.

Despite the same, the tribunal has erred in awarding

exorbitant compensation considering the disability at 9%

to the whole body and taking the income at Rs29,998/-

p.m. of the claimant. On these grounds, he seeks to set

aside the judgment and award.

8. I have heard learned counsel for claimant as well

as learned counsel for Insurance Company and perused

the impugned judgment and award. Exs.P1 to P16 along

with evidence of PW.1, CW.1 and Exs.C1 to C5 establish

the occurrence of accident, involvement of vehicle and

injuries sustained by the claimant.

9. Now coming to the aspect of age, avocation,

income and disability i.e. required to be assessed for

computation, it is seen that the claimant was working as a

Police Constable, aged 30 years and was earning a salary

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of Rs.30,198/- as per Exs.P14 to P16, which are

established and proved. The tribunal has awarded loss of

future income due to disability of Rs.5,18,400/- on

considering the evidence of CW.1-Doctor, who has opined

the disability to an extent of 27.5% and by dividing the

same from 1/3rd and assessing disability at 9%. The same

is seriously disputed by learned counsel for Insurance

Company by contending that the claimant would not be

entitled to this amount for the reason that he has

continued his job in the very same Police Station,

moreover, he has secured the increment also and

presently, he is getting higher salary than he was getting

prior to the occurrence of accident. Therefore, he contends

that when there was no loss of income and the claimant

continues in the same job, if not similar income, more

income, then he would be disentitled to loss of future

income due to disability.

10. Nothing material has been produced by the

claimant that the disability dented his future earning

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capacity and his future career, though the Doctor has

assessed the disability to an extent of 27.5%. Therefore,

taking into consideration the age, avocation and income of

the claimant and the fact that he has continued to perform

his job in the very same Organisation, which is the Police

Department, the question of awarding the loss of income

due to disability would not arise and the same will have to

be reduced from the total compensation awarded by the

tribunal.

11. The tribunal awarded Rs.20,000/- towards pain

and suffering. However, this Court deems it appropriate to

award additional amount of Rs.20,000/-. In all,

Rs.40,000/- is awarded under this head.

12. The tribunal awarded Rs.6,000/- towards

attendant charges, transportation and miscellaneous

expenses. However, the claimant was inpatient for 10

days. Therefore, this Court deems it appropriate to award

Rs.10,000/- under this head.

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13. The tribunal awarded Rs.6,000/- towards loss of

amenities and nutritional food. However, this Court deems

it appropriate to award Rs.25,000/- under this head.

14. The tribunal has not awarded any compensation

towards loss of income during laid-up period. Though the

claimant has not produced any document to show that he

has not secured any income during the said period, this

Court deems it appropriate to award one month salary to

the extent of Rs.30,000/- under this head.

15. The tribunal awarded Rs.13,866/- towards

medical expenses and Rs.10,000/- towards

disappointment, discomfort, frustration, which do not call

for interference and the same are retained.

16. In view of the above, the claimant would be

entitled to the reduced compensation amount of

Rs.1,28,866/- as against Rs.5,74,500/- awarded by the

tribunal as mentioned in the table below:

                 Heads                           Amount in Rs.
Pain and suffering                                  40,000-00
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                                                      NC: 2024:KHC:8622






Attendant charges, transportation and                        10,000-00
miscellaneous expenses
Loss of amenities and nutritional food                        25,000-00
Loss of income during laid-up period                          30,000-00
Medical expenses                                              13,866-00
Disappointment, Discomfort, Frustration                       10,000-00
                 TOTAL                                     1,28,866-00

17. Accordingly, I pass the following:

ORDER

i) The appeal in MFA.No.5729/2023 preferred by

the claimant and the appeal in

MFA.No.5028/2023 preferred by the Insurance

Company are disposed off;

ii) The judgment and award dated 31.01.2023

passed in MVC.No.1958/2019 by the Court of

the Principal Senior Civil Judge and MACT,

Srirangapatna, is modified;