Karnataka High Court

Sri. Abhi @ Abhishekagowda vs Sri. B.Y. Madhu on 12 January, 2024

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NC: 2024:KHC:1835
MFA No. 6773 of 2019

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 12TH DAY OF JANUARY, 2024

BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 6773 OF 2019 (MV-I)
BETWEEN:

SRI. ABHI @ ABHISHEKAGOWDA
S/O ANNEGOWDA
AGED ABOUT 21 YEARS
R/AT MADENERU VILLAGE
SHANTHIGRAMA HOBLI
HASSAN TALUK AND DIST. 573 204 ...APPELLANT

(BY SRI. NARASIMHA MURTHY G V., ADV.)

AND:

1. SRI. B.Y. MADHU
S/O YAKASHIGOWDA
AGED ABOUT MAJOR
R/AT BANAVASE VILLAGE
SHANTHIGRAMA HOBLI
HASSAN TALUK & DIST.- 573 204

2. THE MANAGER
SRIRAM GENERAL INSURANCE COMPANY LTD
Digitally signed by MALA K
N E B RICO INDUSTRIAL AREA, SEETHAPURA
JAIPUR, RAJASTAN STATE - 302 022
Location: HIGH COURT OF
KARNATAKA REP. BY THE MANAGER, SRIRAM
GENERAL INSURANCE COMPANY LTD.
NO.515, 2ND FLOOR, MANIRESHA CHAMBERS
INFANTRY ROAD, BANGALORE-560 001
...RESPONDENTS
(BY SRI.B.PRADEEP, ADV. FOR R2)

THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, AGAINST THE JUDGMENT AND AWARD DATED
28.07.2018 PASSED IN MVC NO.931/2016 ON THE FILE OF
THE 2ND ADDITIONAL SENIOR CIVIL JUDGE, 1 ST ADDITIONAL
MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR
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NC: 2024:KHC:1835
MFA No. 6773 of 2019

COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

In this appeal, the petitioner has challenged the

judgment and award dated 28.07.2018 in

M.V.C.No.931/2016 passed by the I Addl. Senior Civil

Judge and M.A.C.T., Hassan ('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 15.03.2015 at

about 01:40 pm, while the petitioner was riding as

pillion rider in the motor cycle bearing Reg.No.KA-

13/EB-4884 near coconut garden of Ramanna of

Uluvare Village, Hassan Taluk on Shanthigrama-

Mosalehosalli road, hit by a Maximo goods vehicle

bearing Reg.No.KA-13/A-1219, injuring him. After

taking treatment at Government Hospital and

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Mangala Hospital, Hassan, he has approached the

Tribunal for grant of compensation of

Rs.10,00,000/-. Claim was opposed by the Insurance

Company. The Tribunal after taking the evidence by

impugned Judgment, awarded compensation of

Rs.3,73,785/- with 8% interest per annum. Pleading

inadequacy and seeking enhancement, he has filed

this appeal on various grounds.

4. Heard the arguments of Sri. G.V. Narasimha

Murthy, learned counsel for the petitioner and

Sri. B. Pradeep, learned counsel for the Insurance

Company.

5. It is the contention of learned counsel for the

petitioner that the petitioner was under

hospitalization for 15 days, spent Rs.1,50,000/-

towards treatment, he is required to spend another

Rs.50,000/- for future treatment; medical evidence

is let in to demonstrate 25% of right lower limb

disability, but the Tribunal did not consider it;

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compensation awarded towards loss of income

during laid up period, conventional heads, so also

the income taken at Rs.6,000/- are on the lower side

and he sought for enhancement.

6. Per contra, learned counsel for the Insurance

Company has contended that the accident is of the

year 2015, the Tribunal has correctly assessed the

income and disability at 10%; compensation towards

conventional heads is adequate; the rate of interest

awarded at 8% per annum is on the higher side as

no banks will offer such a rate of interest in the year

2015 and even today, he sought for modification of

rate of interest and he supported impugned

judgment in other aspects.

7. I have given my anxious consideration to the

arguments addressed on both sides and also perused

the materials on record.

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8. The material on record did point out that

there was an accident involving the motor cycle and

the goods vehicle in which the petitioner has

suffered the following injuries:

i) Communited Supracondylar fracture of right femur,

ii) Fracture of right patella,

iii) Popletal artery injury right,

iv) Abrasion right knee,

v) Contusion right knee,

vi) Deep lacerated right thigh.

He was under hospitalisation for 15 days. PW-2

Dr. M.M. Shettar treated the petitioner, who made

evaluation that the petitioner has sustained 25%

lower limb disability, whereas the Tribunal has taken

whole body disability at 8%. Assessment of disability

is based on the occupation of the petitioner. The

material on record suggests that the petitioner was

doing agriculture and Pani puri vending business. He

is required to stand for long time for doing

agricultural work and also his business. Therefore,

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the Tribunal cannot determine the disability on

mechanical basis. Having regard to the Communited

Supracondylar fracture of right femur as well as

Fracture of right patella and also his avocation, the

petitioner will suffer not less than 10% whole body

disability and accordingly it has to be determined.

9. The petitioner has not produced any material

to explain his avocation and income. Hence he has to

be treated as a person with no proof of income. In

the year 2015, a person with no proof of income will

earn not less than Rs.9,000/-, but the Tribunal has

taken it at Rs.6,000/- which is on the lower side and

accordingly loss of future earnings has to be

calculated.

10. The petitioner has suffered 2 fractures.

Having regard to the gravity of the fractures,

Rs.60,000/- has to be assessed towards pain and

sufferings. Medical expenses of Rs.1,37,105/-,

incidental expenses of Rs.25,000/-, loss of amenities

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and discomfort at Rs.40,000/- are kept intact as

awarded by the Tribunal. The petitioner was laid up

for 3 months and the Tribunal has awarded

Rs.18,000/-. At the rate of Rs.9,000/- per month it

has to be assessed at Rs.27,000/-. As discussed

above the income of the petitioner is taken at

Rs.9,000/- and whole body disability at 10%. He is

aged 18 years and applicable multiplier is '18'. Since

loss of future income is calculated, future prospects

of 40% has to be added. Then, loss of future

earnings on account of disability will be Rs.9,000/- +

Rs.3,600/- (40%) = Rs.12,600/- x 12 x 18 x 10%=

Rs.2,72,160/-. The medical evidence did not point

out that the petitioner requires any future treatment

nor the treated Doctor made any estimation towards

it. Total compensation under different heads

comes to :-

 Sl.No.          Particulars                      Rs.
    1   Pain and Sufferings                       60,000
    2   Medical Expenses                        1,37,105
    3   Incidental Expenses                       25,000

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      4      Loss of Amenities and                             40,000
             discomfort
      5      Loss of Income during laid up                     27,000
             for 3 months
      6      Loss of future earnings                          2,72,160
                          Total                              5,61,265


Total      compensation       comes          to    Rs.5,61,265/-        as

against       Rs.3,73,785/-      thereby           enhancement           of

Rs.1,87,480/-.         This is the just compensation that

the       petitioner   is   entitled    to        in   the    facts   and

circumstances of the case.

11. As regarding rate of interest is concerned,

no doubt that learned counsel for the Insurance

Company has rightly submitted that no banks will

offer 8% interest per annum on fixed deposits, but it

has not filed any appeal. It is not proper to interfere

in the discretion by the Tribunal in granting 8%

interest per annum. Insofar as enhanced

compensation, the petitioner is entitled to interest at

6% per annum. The appeal merits consideration, in

the result, the following:

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ORDER

i) Appeal is allowed-in-part.

ii) Impugned judgment and award is modified.

iii) The petitioner is entitled to enhanced compensation of Rs.1,87,480/- With 6% interest per annum excluding interest for the delayed period of 286 days in filing the appeal.

iv) The Insurance Company is directed to deposit the amount of compensation within eight weeks from the date of receipt of certified copy of this judgment.