Karnataka High Court

Kempaiah @ Kempanna vs Santhosh Kumar G on 30 July, 2024

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                                                              NC: 2024:KHC:29978
                                                         MFA No. 3009 of 2013




                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 30TH DAY OF JULY, 2024

                                               BEFORE
                     THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
                     MISCELLANEOUS FIRST APPEAL NO. 3009 OF 2013 (MV)


                     BETWEEN:

                     KEMPAIAH @ KEMPANNA
                     S/O KALAIAH
                     AGED 28 YEARS
                     RA/T VADDARA DODDI
                     SHANABOGANA HALLI
                     RAMANAGAR TALUK
                     RAMANAGAR DISTRICT
                                                                    ...APPELLANT
                     (BY SRI. M. BABU, ADVOCATE)
                     AND:

                     1.    SANTHOSH KUMAR G.
                           S/O. GOPALA KRISHNA
                           MAJOR, NO.19, 4TH CROSS,
                           SRIRAMPURA
Digitally signed by        BENGALURU-560 021
PRAJWAL A
Location: HIGH COURT 2.    THE NEW INDIA ASSURANCE CO. LTD.
OF KARNATAKA
                           REPRESENTED BY ITS MANAGER,
                           NO.65, ESWARI COMPLEX
                           DR. RAJKUMAR ROAD,
                           RAJAJINAGAR
                           BENGALURU - 560 010
                                                                 ...RESPONDENTS
                     (BY SRI. M.P. SRIKANTH, ADVOCATE FOR R2
                      VIDE ORDER DATED 17.07.2015,
                      NOTICE TO R1 IS DISPENSED WITH)

                          THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                     AGAINST THE JUDGMENT AND AWARD DATED 25.07.2012
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                                                  NC: 2024:KHC:29978
                                                MFA No. 3009 of 2013




PASSED IN MVC NO.5794/2010 ON THE FILE OF THE 20 TH
ADDITIONAL JUDGE, 18TH ACMM, MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

    THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM:       HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA

                         ORAL JUDGMENT

In this appeal, the petitioner has challenged the

Judgment and Award dated 25.07.2012 passed in

MVC.No.5794/2010 by the XX Addl. Judge and XVIII

ACMM, Bengaluru (ACMM-18) (in short, 'the Tribunal').

2. The appellant was the petitioner and

respondents were the respondents before the Tribunal.

The parties will be referred to as per their status before

the Tribunal for the sake of convenience.

3. Brief facts of the case are, the petitioner has

filed claim petition before the Tribunal, seeking

compensation of Rs.5,00,000/- on the ground that on

03.07.2010 while riding the motor cycle bearing

registration No.KA-05-EA-1765 at about 9.30 p.m., near

NCC gate U turn at Dasappanadoddi, a car bearing

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registration No.KA-51-N-4129 dashed against the motor

cycle and caused him the injuries. He has taken treatment

at Government Hospital, Ramanagaram, Victoria Hospital,

Bengaluru. Claim was opposed by the Insurance Company.

The Tribunal, after holding enquiry and hearing the both

parties by impugned judgment allowed the claim petition

granting compensation of Rs.57,000/- with 6% p.a.

Pleading inadequacy and seeking enhancement, the

petitioner has filed this appeal on various grounds.

4. Heard the arguments of Sri. M.Babu, learned

counsel for the petitioner and Sri.M.P.Srikanth, learned

counsel for the Insurance Company.

5. Learned counsel for the petitioner contended

that the petitioner has suffered compound fracture of right

shaft femur in the accident. The Doctor who is examined

as PW-2 assessed the disability at 36% to his right lower

limb and 18% to whole body. The Tribunal did not

consider the medical evidence; no compensation is

awarded towards incidental expenses, loss of amenities

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and discomfort, loss of future income and loss of income

during laid up period and sought for enhancement.

6. Per contra, learned counsel for the Insurance

Company has contended that PW-2 is not the treated

Doctor and his evidence cannot be accepted. The Tribunal

has held that the fractures are hairline fractures and the

same has not affected the earning capacity of the

petitioner. The compensation awarded is just

compensation and he has supported the impugned

judgment.

7. I have given my anxious consideration to the

arguments addressed on both sides and also perused the

materials on record.

8. The material on record did point out that there

was an accident on 03.07.2010 at about 9.30 p.m., near

NCC Gate U Trun, Dasappanadoddi, involving the motor

cycle rode by the petitioner and car in question. He was

treated in Government Hospital, Ramanagaram and

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Victoria Hospital, Bengaluru. Ex.P4 is the wound certificate

which pointed out that the petitioner has suffered

compound fracture of right femur. He was under

hospitalization for 15 days from 04.07.2010 to

19.07.2010. The driver of the car has been prosecuted as

indicated by the prosecution papers. Hence, the Tribunal

has also recorded that the petitioner is entitled to claim

compensation on the ground of the injuries sustained in

the accident.

9. The tribunal has awarded the compensation as follows:

1. Pain and suffering 50,000

2. Transportation charges 2,000

3. Medical expenses 5,000

Total 57,000

10. The petitioner has relied on the evidence of PW-

2 to the fact that he has assessed that physical disability

affected his earning capacity. PW-2 is an Orthopedic

surgeon of Victoria Hospital, as rightly argued, he is not

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the treated Doctor. Petitioner has suffered compound

fracture of right shaft femur. Even taking into the

consideration the evidence of PW-2 and avocation of the

petitioner as Carpenter, the whole body disability could

have been taken at 10% by the Tribunal. The accident is

of the year 2010. The petitioner has not produced any

evidence to show his income. Hence, the notional income

of the petitioner at the rate of Rs.5,500/- has to be

considered for the purpose of calculation. In the case of

this nature, compensation granted to the petitioner shall

be just and it shall not be a peanut or bonanza.

11. Having regard to the nature of injury, the

Tribunal has awarded Rs.40,000/- towards pain and

suffering. Medical bills are produced for Rs.2,493/-, it is

assessed at Rs.5,000/-. The Tribunal has awarded

Rs.2,000/- towards transportation charges. The petitioner

was under hospitalization for about 15 days. He was

attended by an attendant, spent money towards travelling

and also food and nourishment. Compensation of

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Rs.2,000/- awarded by the Tribunal together on these

heads is on the lower side and it has to be assessed at

Rs.2,000/- toward transportation expenses, Rs.3,000/-

towards attendant charges and Rs.5,000/- towards food

and nourishment. Rs.40,000/- has to be assessed towards

loss of amenities and disability. The petitioner had been

laid up for minimum four months, therefore, Rs.5,500 x 4

= Rs.22,000/- is assessed.

12. As regarding loss of future earnings is

concerned, as discussed above, the income is taken at

Rs.5,500/- per month, applicable multiplier is '18', whole

body disability is 10%. Calculation comes to Rs.5,500/- x

12 x 18 x 10% = Rs.1,18,800/-. Thus, in all, the petitioner

is entitled to total compensation of Rs.2,35,800/-, thereby

enhancement of Rs.1,78,800/-, This is the just

compensation that the petitioner is entitled to in the facts

and circumstances of the case. Liability on the part of

Insurance Company to pay the compensation is not in

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dispute. Accordingly, the appeal merits consideration, in

the result, the following:

ORDER

i) Appeal is allowed in part;

ii) Impugned judgment and award is modified.

iii) Petitioner would be entitled to enhanced compensation of Rs.1,78,800/- along with interest of 6% p.a. from the date of petition till the date of deposit.