Karnataka High Court

Javeed vs Hanumanthappa K on 5 January, 2024

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                       NC: 2024:KHC:710
                                                    MFA No. 25 of 2020




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                      DATED THIS THE 5TH DAY OF JANUARY, 2024
                                       BEFORE
                     THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
                   MISCELLANEOUS FIRST APPEAL NO. 25 OF 2020 (MV-I)

              BETWEEN:
                    JAVEED
                    S/O.RAHAMTHULLA
                    AGED ABOUT 18½ YEARS
                    OCC:COOLIE
                    R/AT OPP. TO S.R.PETROL BUNK
                    HEGADE NAGAR
                    DAVANAGERE
                                                           ...APPELLANT
              (BY SRI RAJASHEKHAR K., ADVOCATE)
              AND:

              1.    HANUMANTHAPPA K.
                    S/O.KABALAPPA
                    AGED ABOUT 43 YEARS
                    OCC: DRIVER OF LORRY
                    BEARING REG.NO.KA26/9691
                    R/AT BEVINAHALLI VILLAGE
                    DAVANAGERE DISTRICT
Digitally
signed by B   2.    HANUMANTHAPPA K.
LAVANYA             S/O.KABALAPPA
Location:           AGED ABOUT 43 YEARS
HIGH                OCC: OWNER OF LORRY
COURT OF            BEARING REG.NO.KA26/9691
KARNATAKA           R/AT BEVINAHALLI VILLAGE
                    DAVANAGERE DISTRICT

              3.    THE MANAGER
                    CHOLAMAMNDALAM M.S.
                    GENERAL INSURANCE
                    COMPANY LIMITED
                    DIVISIONAL OFFICE:
                              -2-
                                         NC: 2024:KHC:710
                                      MFA No. 25 of 2020




    DESAI CROSS
    HUBLI
                                          ...RESPONDENTS
(BY SRI H.S.LINGARAJ, ADVOCATE FOR R-3;
    NOTICE TO R-2 IS HELD SUFFICIENT V.O.D.06.07.2023;
    NOTICE TO R-1 IS DISPENSED WITH V.O.D 06.07.2023)

     THIS MFA IS FILED UNDER SECTION 173(1) OF THE MV
ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
26.06.2019 PASSED IN MVC NO.154/2018 ON THE FILE OF THE
I ADDITIONAL SENIOR CIVIL JUDGE AND V MACT, DAVANGERE
AND ETC.

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


                        JUDGMENT

This appeal is preferred by the appellant-claimant

challenging the judgment and award dated 26.06.2019

passed in MVC.No.154/2018 by I Additional Senior Civil

Judge & V Additional MACT, Davangere (for short 'the

tribunal'). This appeal is founded on the premise of

inadequate and meager compensation awarded by the

tribunal.

2. Parties to the appeal shall be referred to as per

their status before the tribunal.

NC: 2024:KHC:710

3. Brief facts of the case is as under:

That on 22.05.2016 at about 2.30 p.m., the claimant

along with his friend Sharukh after taking bath in the

canal, nearby Putaganal Village was proceeding towards

Davanagere in a motor cycle bearing registration

No.KA15/H-5086 as a pillion rider and when they reached

near the land belonging to Virupakshappa, respondent

No.1 being the driver of Tipper Lorry bearing registration

No.KA 26/9691 drove the same in a rash and negligent

manner without observing the traffic rules and regulations

dashed the rear end of the motor cycle, due to the said

impact, the claimant and his friend fell down and he has

sustained grievous injuries all over the body. Immediately,

he was shifted to Chigateri Hospital, Davanagere and took

the first aid treatment and thereafter, at the advice of the

Doctor, he was shifted to SSIMS Hospital and took the

treatment as inpatient from 22.05.2016 to 30.06.2016 and

underwent surgery and he has spent Rs.1,50,000/-

towards his treatment. Inspite of best treatment, one of

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the legs of the claimant could not be saved, and his left

leg had to be amputated.

3.1 It is the case of the claimant that prior to the

accident, he was hale and healthy doing coolie work by

getting monthly income of Rs.15,000/-. However, due to

the amputation of his left leg and other injuries, he could

not do the work as he was doing earlier. Therefore, the

claimant and his family members were put into deep

mental shock and agony as his family members were

dependant on his income. The accident in question took

place on account of rash and negligent driving of

respondent No.1, thereby Davanagere Rural Police have

registered a case against respondent No.1 in Crime

No.136/2016 for the offences punishable under Sections

279, 337 and 338 of IPC read with Section 187 of IMV Act.

Respondent Nos.1 to 3 being the driver, owner and insurer

of the offending vehicle are jointly and severally liable to

pay the compensation. Hence, the claimant preferred a

claim petition seeking compensation.

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3.2 On service of notice, respondent No.1 did not

appear and was placed ex parte. Respondents Nos.2 and 3

appeared through their respective counsels and filed their

independent objections statement. Respondent No.2 in his

objections statement pleaded that the claim petition filed

by the claimant is not maintainable either in law or on

facts and he denied the accident in question took place on

account of rash and negligent driving of respondent No.1,

who was the driver of the tipper lorry and he also denied

the injuries and treatment as well as amount which was

spent by the claimant as alleged in the claim petition. He

also denied the claimant and his friend were proceeding in

a motor cycle as a pillion rider and rider and respondent

No.1 being the driver of tipper lorry has drove the same in

a rash and negligent manner dashed behind the motor

cycle, as a result, the claimant has sustained the grievous

injuries all over the body and his left leg has been

amputated, but he has admitted that the tipper lorry

belongs to him and respondent No.1 was the driver of the

said lorry holding a valid and effective Driving Licence and

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he has insured the said Lorry with respondent No.3 and

the policy was in existence from 30.01.2016 to

29.02.2017 and he is not liable to pay the compensation

and prays to reject the claim petition.

3.3 Respondent No.3 in his objections statement took

similar plea that the claim petition which was filed by the

claimant is not maintainable either in law or on facts and

he denied the averments made by the claimant.

[

3.4 On the basis of pleadings, the tribunal framed

relevant issues for consideration.

3.5 In order to substantiate the issue and to

establish the case, the claimant got examined himself as

PW.1 and the Doctor as PW.2 and another witness as PW.3

and got marked documents as Exs.P1 to P17. On the other

hand, the respondents have not examined any witness and

got marked documents as Exs.R1 and R2.

3.6 On the basis of material evidence produced and

on hearing the learned counsels for the parties, the

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tribunal awarded compensation of Rs.8,65,965/- together

with interest @ 8% p.a. and held that respondent Nos.2

and 3 jointly and severally liable to pay the compensation.

3.7 Being aggrieved by the meager compensation

amount awarded by the tribunal, the claimant is before

this Court seeking enhancement of compensation.

4. It is the contention of learned counsel for

appellant-claimant that the tribunal awarded meager

compensation without taking into consideration the

magnitude of injury suffered by the minor claimant. He

further contends that the claimant in order to prove the

disability, examined PW.2-Doctor, who is the treated

Doctor and he has opined that the claimant sustained

permanent disability to an extent of 85%. Therefore, the

compensation awarded towards loss of income due to

disability be enhanced. On these grounds, he seeks

enhancement of compensation.

NC: 2024:KHC:710

5. It is the vehement contention of learned counsel

for respondent No.3-Insurance Company that there is no

illegality or perversity in the judgment and award passed

by the tribunal. On the basis of material evidence placed

on record by the claimant, the tribunal rightly awarded

compensation under each heads and the same does not

call for interference. Hence, he seeks for dismissal of the

appeal.

6. Having heard learned counsel for appellant-

claimant, the accident occurred on 22.05.2016. The

claimant is a minor boy, who was aged 17½ years as on

the date of occurrence of accident. It is stated by the

claimant that he was working as a coolie and earning a

sum of Rs.15,000/- per month prior to the date of

accident, but no documentary proof has been produced.

Admittedly, due to the occurrence of accident, the

claimant's left leg was amputated above the knee and also

there is a fracture of both bones of right leg.

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7. PW.2-Doctor, who has adduced evidence, opined

the permanent disability to an extent of 85%. The

claimant was inpatient for 38 days from 22.05.2016 to

30.06.2016. The tribunal, on the basis of the decision of

the Hon'ble Apex Court in the case of Master Mallikarjun

v. Divisional Manager, the National Insurance

Company Limited & Anr. reported in AIR 2014 SC 736,

awarded the compensation of Rs.5,00,000/- towards loss

of income due to disability. Admittedly, in the present

case, the claimant suffered amputation of left leg above

the knee as per Ex.P9 and the photograph produced at

Ex.P17 clearly goes to show the amputation of the left leg

above the knee and fracture of mid shaft of both bones of

right leg.

8. The medical bills have been produced and on the

basis of the actual bills, the tribunal has awarded

Rs.1,43,965/- and the same is retained without any

interference for enhancement.

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NC: 2024:KHC:710

9. Towards loss of future earning capacity due to

disability, this Court is of the opinion that a sum of

Rs.5,00,000/- awarded by the tribunal is retained.

10. Considering the facts and circumstances of the

present case, the compensation will have to be re-worked

looking into the condition of the injury sustained i.e. the

amputation of the left leg, fracture of mid shaft of right leg

of both bones, future earning capacity, loss of marriage,

future expenses for meeting requirement of artificial leg

and also the pain and suffering suffered by the claimant.

11. Towards loss of amenities and enjoyment of life

of an young boy of aged 17½ years, whose life is now

ruined, this Court deems it appropriate to award a sum of

Rs.3,00,000/- as against Rs.50,000/- awarded under this

head and Rs.50,000/- towards loss of disfigurement

awarded by the tribunal.

12. Towards pain and suffering, the tribunal has

awarded Rs.80,000/-. Considering the facts and

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NC: 2024:KHC:710

circumstances of the present case, Rs.2,00,000/- is

awarded under this head.

13. Towards loss of income to the parents during laid

up period, the tribunal has awarded Rs.27,000/-. This

Court deems it appropriate to award Rs.50,000/- under

this head.

14. An young boy has lost his future and it is difficult

for any lady to get married to him considering his physical

condition and financial position. Therefore, this Court

deems it appropriate to award Rs.3,00,000/- towards

loss of marriage.

15. Towards future medical expenses, the tribunal

has awarded Rs.15,000/-. This Court would have to

consider the provision for purchase of artificial leg in

future and expenditure, if any, to be meted by the

claimant for the same, this Court deems it appropriate to

award Rs.1,50,000/- under this head.

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NC: 2024:KHC:710

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

entitled to a total compensation of Rs.16,43,965/- as

against Rs.8,65,965/- as mentioned in the table below:

              Heads                        Amount in Rs.
Pain and suffering                            2,00,000-00
Medical bills                                 1,43,965-00
Loss of income to the parents                   50,000-00
during laid up period
Loss of future earning due to                    5,00,000-00
disability
Loss of disfigurement and loss of
amenities, conveyance, food and                  3,00,000-00
nourishment      and   attendant
charges
Future medical expenses                          1,50,000-00
Loss of marriage prospects                       3,00,000-00
              TOTAL                            16,43,965-00

17. Accordingly, I pass the following:

ORDER

i) The appeal is allowed-in-part;

ii) The judgment and award dated 26.06.2019

passed in MVC.No.154/2018 by I Additional

Senior Civil Judge & V Additional MACT,

Davangere, is modified;