Karnataka High Court
Sri Basavaraju D M vs Vishweshwaraiah P S on 5 January, 2024
-1-
NC: 2024:KHC:1254
MFA No. 3965 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 3965 OF 2013 (MV-I)
BETWEEN:
1. SRI BASAVARAJU D M
S/O MARIBASAVAIAH
AGED ABOUT 39 YEARS
R/AT DONAKUPPA
KASABA HOBLI,
MAGADI TALUK
RAMANAGARA DISTRICT.
...APPELLANT
(BY SRI. PRADEEP NAIK K., ADVOCATE)
AND:
1. VISHWESHWARAIAH P.S,
PROP: VINAYAKA TRANSPORT,
VYASARAPALYA,
HANUMANTHAPURA
Digitally TUMKUR 572101
signed by
BHARATHI S
Location: 2. ROYAL SUNDRAM ALLIANCE
HIGH COURT INSURANCE CO,.LTD
OF
KARNATAKA NO.132, II FLOOR
MAANGALYAPUNARBHAV
BRIGADE ROAD,
BANGALORE D560025
...RESPONDENTS
(BY SRI. P B RAJU, ADVOCATE FOR R2
R1 SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED15.12.2012 PASSED IN MVC
NO.5538/2011 ON THE FILE OF THE XIX ADDL. SCJ, MACT & XLI
-2-
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MFA No. 3965 of 2013
ACMM, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The above appeal is filed by the claimant challenging
the judgment and award dated 15.12.2012 passed in MVC
5538/2011 on the file of the XIX Addl. SCJ, MACT & XLI ACMM,
Bangalore 1, seeking for enhancement of compensation.
2. For the sake of convenience, the parties herein are
referred as per their rank before the Tribunal.
3. The relevant facts necessary for consideration of
the present appeal are that on 17.5.2011 when the claimant
was proceeding as a pillion rider on motor cycle bearing No.KA-
42/K.3608 on Ramangara Magadi Road, a bus came in a high
speed, rash and negligent manner and hit the motor cycle on
which the claimant was traveling causing the accident in
question, as a result of which, he sustained grievous injuries.
Claiming compensation for the injuries sustained, the claimant
filed MVC No.5538/2011 before the Tribunal arraying the owner
Hereinafter referred to as the 'Tribunal'
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and insurer of the bus as respondents. The claim proceedings
were contested by the respondents. By judgment and award
dated 15.12.2012 the Tribunal has awarded a compensation of
`6,77,654/- with interest at 8% pa., and held that the
respondents are jointly and severally liable to pay the
compensation awarded and directed the second respondent -
insurer to pay the compensation awarded. Being aggrieved,
the present appeal is filed seeking enhancement of
compensation.
4. The submissions made by the learned counsel for
the appellant and learned counsel for the second respondent
have been considered and the material on record including the
records of the Tribunal have been perused.
5. It is forthcoming from the wound certificate (Ex.P5)
that the claimant had suffered fracture of both bones of the
right upper 1/3rd with neurovascular injury with no viable
mobility below the right knee. It is forthcoming from the
discharge summary (Ex.P7) that the claimant was treated as an
inpatient from 18.5.2011 to 31.5.2011 i.e., for a period of 13
days and that the amputation was done above the knee. The
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doctor has been examined as PW.2 who has deposed that the
claimant is not able to stand and walk and has difficulty in
squatting and sitting cross legged. He has further deposed that
the right leg having been amputated, amputated stump above
the right knee is present and that a prosthetic artificial limb will
be required to be changed every 10 years which costs about
`1,25,000/-. The doctor has assessed the whole body disability
at 30%.
6. The claimant is stated to be an agriculturist and
also running a provision store, in respect of which he has
produced general licence as Ex.P8 and RTC extract as Ex.P9.
The Tribunal appreciating the same has disbelieved the licence
produced and with regard to RTC, has recorded a finding that
the same does not stand in the name of the claimant and
stands in the name of his father. Hence, although it was the
contention of the claimant that he was earning `15,000/- pm.,
the Tribunal has assessed the income at `150/- per day.
7. Having regard to the aforementioned aspects, the
compensation is re-assessed as follows:
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7.1 The income of the claimant is required to be re-
assessed at `6,500/- having regard to the chart that is being
followed for settlement of cases in the Lok Adalat conducted by
the High Court Legal Services Authority.
7.2 The age of the claimant is said to be 40 years and
the multiplier applied by the Tribunal is 15, which is just and
proper.
7.3 With regard to the disability, although the Tribunal
has the disability at 30%, having regard to the evidence of the
doctor, as vehemently contended by the learned counsel for the
appellant, it is just and proper that the percentage of disability
specified in the schedule to the Workmen's Compensation Act,
1923 for amputation above the knee be taken and accordingly,
the percentage of disability is re-assessed at 60%.
7.4 The compensation towards pain and suffering
awarded in a sum of `1,00,000/- is just and proper.
7.5 The Tribunal has awarded a sum of `60,000/-
towards artificial limb. Having regard to the evidence of the
doctor the same is re-assessed at `1,00,000/-.
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7.6 The Tribunal has awarded a sum of `35,000/-
towards future comforts and `30,000/- towards disfigurement .
Both the heads are construed jointly as loss of amenities and
the compensation awarded is re-assessed at `1,00,000/-.
7.7 The Tribunal has awarded a sum of `1,90,154/-
towards medical expenses, which is just and proper and the
same is rounded off to `2,00,000/-.
7.8 For the purpose assessing the loss of earning
capacity, the laid up period is taken as 3 months and hence,
the compensation under the said head is re-assessed at
(`6500/-x3) `19,500/-, which is rounded off to `20,000/-.
7.9 The Tribunal has awarded a sum of `15,000/-
towards attendant, nourishment, food and conveyance, which is
re-assessed at `25,000/-.
7.10 With regard to the loss of future earning capacity,
the same is re-assessed at (`6500/-x12x15x60%) `7,02,000/-
as against `2,43,000/- awarded by the Tribunal.
8. Accordingly, the total compensation under various
heads is re-assessed as follows:
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Sl.No Heads Amount awarded Amount awarded
by the Tribunal by this Court (`)
(`)
1. Pain and suffering 100000.00 100000.00
Loss of future earning 243000.00 702000.00
3. Attendant charges, 15000.00 25000.00
food, nourishment and
conveyance charges
4. Loss of earning during 4500.00 20000.00
the period of treatment
5 Loss of amenities 65000.00 100000.00
6 Artificial limb 60000.00 100000.00
7 Medical expenses 190154.00 200000.00
Total 677654.00 1247000.00
9. Hence, the appellant/claimant is entitled for
enhanced compensation of (`1247000 - `677654) `5,69,346/-,
which is rounded off to `5,70,000/- together with interest at 6%
p.a.
10. In view of the aforementioned, the following:
ORDER
i) The appeal is allowed in part;
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ii) The judgment and award dated 15.12.2012 passed
in MVC No.5538/2011 on the file of XIX Addl. SCJ,
MACT & XLI ACMM, Bangalore, is modified to the
extent stated herein. In all other respects, the
judgment and award of the Tribunal remains
unaltered;
iii) The appellant/claimant is entitled to enhanced
compensation of `5,70,000/- with interest at 6%
per annum from the date of petition till its
realization in addition to the compensation by the
Tribunal.
iv) Respondent No.2 - Insurance Company is directed
to deposit the said compensation together with
accrued interest within a period of six weeks from
the date of receipt of a copy of this judgment;
v) After deposit, the entire enhanced compensation
with accrued interest shall be disbursed to the
appellant/claimant in terms of the award;
vi) The Registry to draw the modified award
accordingly.
vi) No costs.
SD/-
JUDGE
nd
