Karnataka High Court
Imran vs Kumar D on 1 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:24471
MFA No. 5878 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 5878 OF 2021 (MV-I)
BETWEEN:
IMRAN
S/O SHAFIULLA,
AGED ABOUT 29 YEARS,
R/AT NO.57, 2ND CROSS,
24TH MAIN, ELECTRONIC CITY,
PHASE-1, BENGALURU - 560 001.
...APPELLANT
(BY SRI. K. L. SREENIVAS, ADVOCATE)
AND:
1. KUMAR D
S/O DORAISWAMY C
AGE: NOT KNOWN, BUT MAJOR,
R/O 4TH CROSS, 6TH MAIN,
N. S. PALYA, B. G. ROAD,
BENGALURU - 560 001.
2. THE ORIENTAL INSURANCE CO. LTD.,
Digitally signed by M.H.BORAIAH BUILDING,
VEDAVATHI A K
Location: High V.V.ROAD, MANDYA - 571 401.
Court of Karnataka REPRESENTED BY BRANCH MANAGER.
...RESPONDENTS
(BY SRI. R. GOVINDARAJ, ADVOCATE FOR R2;
VIDE ORDER DATED:5/4/23, NOTICE TO R1 IS DISPENSED
WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 04.03.2020 PASSED IN MVC NO.450/2017 ON
THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND
CJM, MACT, MANDYA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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MFA No. 5878 of 2021
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/petitioner under
Section 173(1) of Motor Vehicles Act, 1988 (for short
hereinafter referred to as MV Act) challenging the
judgment and award dated 04.03.2020 passed in
MVC No.450/2017 passed by the I ADDL. Senior Civil
Judge and CJM, Motor Accident Claims Tribunal, Mandya
(for short hereinafter referred to as 'Tribunal') for seeking
enhancement of compensation.
2. Heard the arguments of the learned counsel for
the appellant and learned counsel for respondent No.2-
Insurance Company. Issuing notice to respondent No.1 is
hereby dispensed with.
3. The appellant was petitioner and the
respondents were respondents before the Trial Court. The
status of the parties before the Tribunal is retained for the
sake of convenience.
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4. The petitioner filed this petition under Section 166
of MV Act, for claiming compensation for the injuries
sustained by him in the road traffic accident dated
10.3.2012. It is alleged that on the said date, the
petitioner was a pillion rider in motor cycle bearing no.KA-
05-HQ-8492 driven by his friend Appu @ Subramani,
travelling from Bangalore towards Mysore. At that time,
the rider was riding the motor cycle in a rash and
negligent manner near Hosabudanuru village. He dashed
against the road divider, due to which the petitioner and
rider of the motor cycle fell down and the petitioner
sustained grievous injuries and was admitted in the
hospital. Due to the accident, the petitioner sustained
grievous injuries to his right hand, head, chest and entire
face. Hence, due to the accident, there was disability and
the petitioner lost his earning capacity. Hence, prayed for
granting compensation on various grounds.
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5. The respondent No.1 did not appear and was
placed ex-parte. On receipt of the summons, the
respondent No.2/Insurance company, appeared and filed a
statement of objection by denying the rash and negligent
driving, also denied age, occupation and income and
disability of the petitioner and contended that there is no
disability and there is no avocation. Hence, prayed for
dismissing the petition.
6. On the basis of pleadings, the tribunal framed
the following issues for consideration:
1. Whether the petitioner proves that on
10.03.2012 he was traveling on motor cycle
bearing reg No.KA-05-HQ- 8492 being
ridden by Sri.Appu @ Subramani in an
actionable rash and negligent manner on
Mysuru- Bengaluru road at about 7.45 am
near Hosabudanur village had hit the
divider on the road and the petitioner had
sustained grievous hurt?
2. Whether the petitioner is entitled to the
compensation if so to what quantum and
from which of the respondents?
3. What order?
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7. To prove the case, the petitioner himself was
examined as P.W.1. and examined P.W.2. Also examined
two doctors P.W.3 & P.W.4. The petitioner got marked
documents from Exs.P1 to P27. The respondent not lead
any evidence. After hearing the arguments, the tribunal
answered issue No.1 in affirmative and issue No.2 in the
partly affirmative. Accordingly, granted compensation of
Rs.6,66,360/- along with interest at the rate of 8% p.a.,
which is as under;
Particulars Amount
in Rs.
Pain and suffering 60,000-00
Medical expenses 2,83,000-00
Loss of future earning 2,07,360-00
Loss of income during laid 48,000-00
up period
Loss of Amenities 16,500-00
Food, nourishment and 26,500-00
conveyance
Future Medical Expenses 25,000-00
Total 6,66,360-00
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8. Being unsatisfied with the amount of
compensation awarded by the tribunal, the claimant is
before this court.
9. Learned counsel for the petitioner contended that
the tribunal not properly considered the evidence on
record. As per the evidence of the P.W.3 and P.W.4., the
petitioner has suffered 15.6% of the whole body disability
and 80% functional disability. However, the tribunal
considered only 12%. The petitioner has been suffering
80% functional disability. The petitioner has suffered
fracture of mandible with mobility and occlusion and he is
unable to chew. Such being the case, the tribunal
considering only 12% towards whole body is not correct.
10. The laid up period is also given very less. The
Future medical expenses also given was very less only
Rs.25,000/-. The pain and suffering is also very less. The
food, nourishment and conveyance is not sufficient. The
loss of amenities is also very meagre. Hence, prayed for
enhancing the compensation.
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11. Learned counsel for the respondent contended
though the tribunal considered Rs.8,000/- per month and
as per the notional income recognized by the Karnataka
State Legal Services Authority, an income between
Rs.7000/- p.m. and Rs.8000/- p.m., to be considered for
the accidents occurred during 2012-13. Here in this case,
the petitioner filed case after 5 years of accident. The
doctor was examined by the tribunal after 5 years. The
disability assessed is not proper. The PW3 has given
15.6% disability to whole body, whereas PW2 given more
disability. Therefore, considering the same, there is no
need to enhance the same and also contended that the
amount of compensation awarded by the tribunal is
correct.
12. Having heard the arguments, perused the
records, the point that arises for my consideration are,
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1. Whether the tribunal awarded
compensation of Rs.6,66,360/- is
meager and requires
enhancement? If so? What
amount?
13. On perusal of the evidence on record, the
accident in question is not disputed, only the quantum of
compensation requires to be assessed. The tribunal taken
Rs.8,000/- per month as income of the petitioner, but
there is no documents produced. However, as per the
notional income recognized by the Karnataka State Legal
Services Authority, an income of Rs.7,000/- p.m. to be
considered for the accidents occurred during 2012 and
Rs.8,000/- to the accident occurred in 2013. Such being
the case, the tribunal considering Rs.8,000/- per month is
not correct. Therefore, I propose to consider the income
in between Rs.7,000/- and Rs.8,000/- which comes to
Rs.7,500/ per month, proposed to consider as notional
income of the petitioner.
14. As regards to the disability, the doctor stated
there was 80% functional disability. The P.W.4/the doctor
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who is Oral and Maxillo facial surgeon, stated that the
petitioner has sustained fracture of mandible with mobility
and occlusion which was not considered by the tribunal.
However the doctors opined 15.6 % to the whole body.
Though the tribunal disputed evidence of PW2, but while
accepting the evidence of P.W.3 and P.W.4 the tribunal
considered only 12% of the whole body. Whereas the two
doctors given evidence, wherein one doctor has given
higher side and another doctor has given lower side. The
tribunal could have accepted the evidence given by P.W.3
and P.W.4 and the disability could have been taken to
15.6 % to the whole body. It is also noted, the petitioner
suffered mandible with mobility and occlusion. As per the
x-ray at Ex.P.27, it is very difficult to chew the food and
thereby functional disability of mandible was 80%, but
taking 12% is very meager. Hence, I propose to consider
15.6 % as disability of the whole body. If the income of
the petitioner is considered to Rs.7,500/- per month.
Rs.7,500/- x 12 x 18 x 15.6% = Rs.2,52,720/- is
granted towards loss of future earning capacity.
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15. As regards to the pain and suffering
Rs.60,000/- was awarded by the tribunal. There is no
need to enhance the same.
16. The medical expenses was granted of
Rs.2,83,000/- which is based upon the medical bills and
the same is retained.
17. The loss of laid-up period for Rs.48,000/- is
awarded by the tribunal and the same is retained.
18. The loss of amenities awarded by the tribunal
was Rs.16,500/- it appears to be very meager. The
petitioner has suffered mandible with mobility and
occlusion and he cannot chew the food properly.
Therefore, Rs.16,500/- is very less. Hence, I propose to
enhance the same to Rs.30,000/- towards loss of
amenities as against Rs.16,500/-.
19. The food, nourishment and conveyance
charges granted was for Rs.26,500/-. This amount
awarded is not by appreciating any of the evidence.
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Therefore, considering facts and circumstances and
looking to the huge medical records, I propose to award
Rs.50,000/- total towards the food, nourishment,
conveyance and attendant charges.
20. Future medical expenses is Rs.25,000/- and
same is retained
21. The components awarded by this court are as
below,
Particulars Amount
in Rs.
Loss of income due to 2,52,720.00
disability
Pain and suffering 60,000.00
Medical expenses 2,83,000.00
Loss of laid up period 48,000.00
Loss of amenities 30,000.00
Future medical expenses 25,000.00
Food nourishment, 50,000.00
conveyance and attendant
charges
Total 7,48,720.00
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23. Accordingly, I pass the following:
ORDER
i. The appeal is allowed in part.
ii. The judgment of the tribunal dated 04.03.2020
passed in MVC No.450/2017 passed by the I ADDL.
Senior Civil Judge and CJM, Motor Accident Claims
Tribunal, Mandya, is hereby modified.
iii. The claimant is entitled to a total compensation for a
sum of Rs.7,48,720.00 instead of Rs.6,66,360/-
granted by the tribunal.
iv. The enhanced compensation amount shall be paid by
the respondent-Insurance Company with interest @
6% per annum (6% on the enhanced compensation),
excluding the future medical expenses, within a
period of two months from the date of receipt of a
copy of this order.
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v. The enhanced compensation is ordered to be
released to the petitioner;
vi. Registry is directed to return the Trial Court records
to the Tribunal, along with certified copy of the order
passed by this Court forthwith without any delay;
and
vii. Draw award accordingly.
Sd/-
JUDGE
AKV
CT:SK
