Karnataka High Court
Mapanna S/O Marthandappa Dandin vs Shivakumar And Anr on 11 January, 2024
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MFA No. 200451 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS. JUSTICE LALITHA KANNEGANTI
MISCL. FIRST APPEAL NO. 200451 OF 2020 (MV-I)
BETWEEN:
MAPANNA
S/O MARTHANDAPPA DANDIN,
AGE: 77 YEARS, OCCU: PENSIONER &
AGRICULTURE NOW NIL,
R/O: RAJAPUR, GULBARGA-585101.
...APPELLANT
(BY SRI. SANJEEV PATIL, ADVOCATE)
AND:
1. SHIVAKUMAR S/O SUBBARAO,
AGE: MAJOR, OCCU: NOT KNOWN,
OWNER OF MOTOR CYCLE NO. KA.32/L.5097,
R/O: EWS-41, SECOND PHASE,
Digitally signed MAKTAMPURA, ADARSH NAGAR,
by KHAJAAMEEN
L MALAGHAN GULBARGA-585101.
Location: High
Court of
Karnataka 2. HDFC ERGO GENERAL INSURANCE CO. LTD.,
1ST FLOOR, VIRUPAX KRUPA,
OPP: KIMS MAIN GATE, R.D. ROAD,
VIDYA NAGAR, HUBLI-580021.
REPRESENTED BY ITS AUTHORIZED OFFICER.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
NOTICE TO R1 HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO ALLOW THIS APPEAL AND AWARD
COMPENSATION OF RS. 14,08,800/- (EXCLUDING THE AMOUNT
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MFA No. 200451 of 2020
AWARDED BY THE TRIBUNAL) ALONG WITH INTEREST @ 12% P.A.
BY MODIFYING THE JUDGMENT AND AWARD PASSED BY THE
LEARNED I ADDL. SENIOR CIVIL JUDGE AND MACT, KALABURAGI
DATED 08.11.2017 IN MVC NO. 20/2013 BY FIXING THE ENTIRE
LIABILITY OF PAYING COMPENSATION ON RESPONDENT NO.2,
INSTEAD OF FIXING IT ON RESPONDENT NO.1, IN THE INTEREST OF
JUSTICE AND EQUITY.
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 both the learned counsels it is taken up for final
disposal.
This Appeal is filed by the claimant aggrieved by the
judgment and award passed in M.V.C.No.20/2013, on the
file of the I-Addl. Senior Civil Judge & MACT, Kalaburagi,
dated 08.11.2017, whereby the Tribunal had granted
compensation of an amount of Rs.91,200/- as
compensation.
[
2. The claim petition was filed seeking
compensation of an amount of Rs.15,00,000/- on account
of the injuries suffered by the claimant. It is the case of
the claimant that on 05.06.2012 at about 5:30 p.m. the
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claimant with his grandson-Vishwanath was proceeding by
walk on the proper left side of the road, from old market
to Maharaja hotel side, in Super Market Gulbarga, at that
time, one Hero Honda motorcycle (for short, 'offending
vehicle') bearing its Reg.No.KA-32/L-5097 ridden by its
rider came from backside with high speed and in a rash
and negligent manner and dashed to the right leg of the
claimant. Due to the said accident, the claimant fell down
and sustained impacted crack fracture of proximal tibia
extending into articular margin of lateral condyle,
osteophytic breaking along with margin of tibia and fibula
and femur and other grievous injuries over right knee and
also other parts of the body.
3. Before the Tribunal respondent No.1 remained
ex parte. The respondent No.2/Insurance company had
filed written statement denying the material averments of
the claim petition. It is stated that the claim of the
claimant under various heads is very high and out of
proportion.
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4. The claimant in support of his case, examined
P.Ws.1 and 2 and got marked Exs.P1 to P10. On behalf of
the Respondent/insurance company RW.1 examined and
got marked Exs.R.1 to R5.
5. The Court below considering the evidence on
record i.e., Exhibits-P1 to P10 and considering the
evidence of PW-1 and PW-2, granted compensation of an
amount of Rs.91,200/-.
6. The counsel appearing for the appellant-
claimant submits that the Court below had failed to
consider the injury sustained by the claimant and the
amounts that were spent by the claimant towards the
treatment. The injury sustained by the claimant is a
grievous injury and the Court below has failed to grant
reasonable amounts for the said injuries. It is submitted
that the compensation that was granted by the Tribunal is
not a reasonable one.
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7. It is further stated that the claimant has
sustained permanent disability at 26% and as per the case
of the claimant he was retired employee. The Tribunal has
accepted the claim of the claimant. It has, however,
absolved the respondent/insurance company from any
liability for just reasons. The Tribunal has granted
compensation under the following heads:
Sl.No. Heads Amount
1. Pain and suffering Rs.30,000/-
2. Medical expenses Rs.10,000/-
3. Attendant, conveyance charges Rs.1,200/-
& nutrition of food etc
4. Loss of amenities Rs.50,000/-
Total Rs.91,200/-
8. The learned counsel for the claimant submits
that considering the injuries sustained by the claimant the
compensation awarded by the Tribunal was not
reasonable. He submits that Court below ought to have
granted compensation for loss of income during laid up
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period and for loss of future income and compensation
awarded by the Tribunal is not just and proper. It is
further contended that even the rider of the motorcycle
was not having valid and effective driving licence also as
per law laid down in Pappu & Ors vs Vinod Kumar
Lamba & Anr. 1 still insurance company is liable to pay
compensation and recover the same from the owner of the
vehicle.
9. The learned counsel for the
respondent/insurance company submits that the Court
below had rightly considered the evidence on record and
granted compensation and no grounds are made out for
interference by this Court for enhancement of
compensation and sought for dismissal of the appeal.
10. Having heard the learned counsel on either
side, perused the material on record. The petitioner
sustained impacted crack fracture of proximal tibia
extending into articular margin of lateral condyle,
(2018) 3 SCC 208
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osteophytic breaking along the margin of tibia and fibula
and femur and it has resulted in permanent partial
disability.
11. As per the evidence of claimant who is
examined as PW.1 and PW.2-Dr.Ravi E. Shivaraya,
Surgeon, in the accident the claimant sustained fracture of
right tibia and he has given cumulative disability sustained
by claimant at 26% to the entire body. It would be
appropriate to grant an amount of Rs.40,000/- under
head of pain and suffering. Based on the medical bills
the court below grante in a sum of Rs.10,000/- towards
medical expenses and Rs.50,000/- towards loss of
amenities which are appropriate and do not call for any
interference by this Court.
12. Looking to the nature of injuries suffered and
period of treatment (i.e. 6 days) Rs.1,200/- was awarded
towards attendant, conveyance charges & nutrition of food
etc., which is on the lower side and the same is enhanced
to Rs.6,000/-.
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13. Further in the light of the law laid down by the
Hon'ble Supreme Court in the case of V.MEKALA vs. M.
MALATHI AND ANOTHER2, the claimant is entitled for an
amount of Rs.10,000/- towards legal expenses.
14. Thus, the claimant is therefore, entitled to the
compensation under the following heads:
Sl. Heads Compensation
No. Awarded
1. Pain and suffering : Rs. 40,000/-
2. Medical Expenses : Rs. 10,000/-
3. Loss of amenities : Rs. 50,000/-
4. Attendant, conveyance charges &nutrition : Rs. 6,000/-
of food etc.,
5. Legal expenses : Rs. 10,000/-
Total : Rs. 1,16,000/-
15. Accordingly, the Appeal is allowed-in-part,
enhancing the compensation amount from Rs.91,200/- to
Rs.1,16,000/-.
(2014) 11 SCC 178
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i) The respondent - insurance company shall
deposit the amount within a period of eight
weeks from the date of receipt of copy of the
judgment and the same shall be recovered
from the owner of the vehicle.
ii) The enhanced amount shall carry interest at the
rate of 6% p.a. from the date of petition till the
date of realization.
iii) On such deposit, the claimant is entitled to
withdraw the entire amount without furnishing
any security.
iv) This Court vide order dated 20.09.2022
condone the delay of 758 days on the condition
that the appellant/claimant shall not be entitled
for any interest for the delayed period on the
enhanced compensation. In view of the same,
the appellant is not entitled any interest for the
delayed period.
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v) Registry is directed to return the Trial Court
Records, if any, to the Tribunal, along with
certified copy of the order passed by this Court
forthwith without any delay.
vi) No costs.
Pending IAs, if any, shall stand closed.
Sd/-
Judge
SDU
CT: CS
