Karnataka High Court
S.Kubendrappa vs T.J.Rangappa on 5 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
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MFA No. 1288 of 2022
C/W MFA No. 1289 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 1288 OF 2022 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 1289 OF 2022 (MV-I)
IN MFA NO.1288/2022
BETWEEN:
SHANKARAMURTHY
S/O LATE SANKAPPA,
AGED ABOUT 60 YEARS,
R/O JANKAL VILLAGE, HOSDURGA TALUK,
CHITRADURGA DISTRICT - 577 501.
...APPELLANT
(BY SRI. PRAKASH H C., ADVOCATE)
AND:
1. T.J.RANGAPPA
S/O JAYAPPA,
AGED ABOUT 48 YEARS,
R/AT TANIGEKAL VILLAGE,
Digitally signed by MADADAKERE HOBLI, HOSADURGA TALUK,
VEDAVATHI A K
Location: High CHITRADURGA DISTRICT - 577 501.
Court of Karnataka
2. THE BRANCH MANAGER
IFFCO TOKYO GENERAL INSURANCE CO. LTD.,
BRANCH OFFICE,
THIPPESWAMY ARCADE,
1ST FLOOR, JCR EXTENSION ROAD,
CHITRADURGA CITY - 577 501.
...RESPONDENTS
(BY SRI. PRADEEP B., ADVOCATE FOR R2;
VIDE ORDER DATED:26/3/2024, NOTICE TO R1 IS
DISPENSED WITH)
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MFA No. 1288 of 2022
C/W MFA No. 1289 of 2022
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED.18.12.2021 PASSED IN MVC NO.493/2019 ON
THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND
MACT-V, CHITRADURGA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN MFA NO.1289/2022
BETWEEN:
S.KUBENDRAPPA
S/O SHIVAPPA,
AGED ABOUT 58 YEARS,
R/O JANKAL VILLAGE, HOSDURGA TALUK,
CHITRADURGA DISTRICT - 577 501.
...APPELLANT
(BY SRI. PRAKASH H C., ADVOCATE)
AND:
1. T.J.RANGAPPA
S/O JAYAPPA,
AGED ABOUT 48 YEARS,
R/AT TANIGEKAL VILLAGE,
MADADAKERE HOBLI, HOSADURGA TALUK,
CHITRADURGA DISTRICT - 577 501.
2. THE BRANCH MANAGER
IFFCO TOKYO GENERAL INSURANCE CO. LTD.,
BRANCH OFFICE, HIPPESWAMY ARCADE,
1ST FLOOR, JCR EXTENSION ROAD,
CHITRADURGA CITY - 577 501.
...RESPONDENTS
(BY SRI. B. PRADEEP, ADVOCATE FOR R2;
VIDE ORDER DATED:18/2/2022, 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.18.12.2021 PASSED IN MVC NO.492/2019 ON
THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MACT-
V, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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MFA No. 1288 of 2022
C/W MFA No. 1289 of 2022
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are filed by the appellants/claimant
under Section 173(1) of Motor Vehicles Act, 1988
challenging the judgment and award dated 18.12.2021
passed in MVC Nos.493/2019 and 492/2019 on the file of
II Additional Senior Civil Judge and MACT-V, Chitradurga,
for having granted compensation of Rs.1,47,720/- and
Rs.1,13,600/- respectively and seeking for enhancement.
2. Heard the arguments of the learned counsel for
the appellants and learned counsel for the respondent
No.2-Insurance Company. Issuing notice to Respondent
No.1 is dispensed with.
3. The status of the parties before the Tribunal is
retained for the sake of convenience.
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4. The case of the petitioners are that, both the
petitioners were riding as rider and pillion rider in motor
cycle bearing No.KA-16-R-6536 on 10.05.2019 at 5.00
p.m., near Sevanagar of Hosadurga Taluk. At that time ,
the tractor bearing No.KA-16-T-7505 driven in a rash and
negligent manner and dashed to the motorcycle, due to
which, both of them fell down and sustained grievous
injuries.
5. The appellant in MFA No.1288/2022 being
rider (MVC No.493/2019) suffered grievous injuries to
the left distal radius fracture. He was treated as the
inpatient and he has lost the earning capacity due to the
disability. The appellant in MFA No.1289/2022 (MVC
No.492/2019) being pillion rider also sustained grievous
injury on his chest and the fracture of ribs. He was also
admitted to hospital and was suffering from miscellaneous
injuries. Therefore, both of them have approached the
court for enhancing compensation.
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6. On issuance of summons, respondent No.2-
insurance company has appeared and filed statement of
objection by taking the contention that there is no rash
and negligent riding and contended that the vehicle was
insured with the insurance company. Hence, prayed for
dismissing the appeal. The respondent No.1, also
appeared through the counsel filed statement of objection
by denying the rash and negligent driving and also
contended, the petition is bad for non-joinder of owner
and insurer of the motor cycle and prayed for dismissing
their petitions.
7. On the basis of pleadings, the tribunal framed
the following issues for consideration:
"-: ISSUES :-
(COMMON ISSUES IN BOTH THE CASES)
1. Whether petitioner proves that, he has
sustained injuries in the road traffic
accident, that took place on 10.05.2019 at
about 05.00 p.m, near Sevanagar of
Hosadurga Taluk, due to rash and
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negligent driving of driver of tractor
bearing reg. No. KA-16-T-7505?
2. Whether the respondent No.2 proves that,
alleged accident took place due to
contributory rash and negligence of rider
of motor cycle bearing reg. No.KA-16-R-
6536?
3. Whether the respondent No.2 proves that,
petition is bad for non joinder of owner
and insurer of motor cycle bearing reg
No.KA-16-R-6536?
4. Whether the petitioner is entitled to the
relief sought for? If so, how much and
from whom?
5. What order or award ?"
8. On behalf of the petitioners, the petitioners
themselves were examined as PW1 and PW2 and got
marked 61 documents. They also examined
Dr.Venkatashivareddy who has given medical certificate.
Respondent examined RW1 and produced insurance policy.
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Though taken various contentions, after hearing the
arguments, the tribunal considered the issue No.1 in the
affirmative, issue No.2 in negative, issue No.3 also in the
negative and issue No.4 in partly affirmative. Accordingly,
awarded the compensation. Being aggrieved by the overall
compensation both the petitioners are before this court.
9. Learned counsel for the petitioner contended that
the tribunal committed error in calculating the income of
the petitioners. As the income of the petitioner in MVC
No.493/2019 was considered as Rs.12,000/- p.m., which
is not correct, whereas, as per the Legal Services
Authority prescribes the income of Rs.14,000/- for the
accident for the year 2019. Also, further contended
though the doctor examined and confirmed the permanent
disability of 22% of appellant in MVC No.492/2019and
32% disability of the appellant in MVC No.493/2019 case
but the tribunal considering only 5% and 7% respectively,
is not correct and very meager. The loss of amenities, laid
up charges are also not awarded properly and wrongly
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fixed by the tribunal. Hence prayed for enhancing the
same.
10. Per contra, learned counsel for the respondent
objected the appeal and supported the judgment and
award passed by the tribunal, as they have not used any
document to show earning of any income and huge loss
was suffered by the appellant and there is no disability as
stated by the doctor. Hence prayed for dismissing the
petition.
11. Having heard the arguments of the learned
counsel for petitioner, learned counsel for the respondent
No.2-insurance company, the following point would arise
for my consideration:-
Whether award passed by the
tribunal by fixing the compensation and
considering the income of the petitioners
are lower side and granted compensation
is meager and it requires to be enhanced.
If so, what amount?
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12. On perusal of the records, the accident occurred
on 10.05.2019 due to rash and negligent manner of
driving was not in dispute. As the respondent No.1 has
admitted the liability and they not challenged and also not
lead any evidence or disproved the evidence of the
prosecution, witnesses and police documents. Except the
quantum of compensation, nothing remains for this court
to consider.
13. As regards to the appellant in case MVC
No.493/2019 (MFA No.1288/2022), the petitioner is
aged 60 years. The tribunal considered income of the
petitioner as Rs.12,000/- p.m.. The notional income chart
of the Legal Services Authority prescribes the income of
Rs.14,000/- p.m. for the accident for the year 2019.
Therefore, the income should be admitted for Rs.14,000/-
p.m., instead of Rs.12,000/- p.m.. As per the evidence of
the doctor PW3 he has suffered disability due to the
fractures on the chest, ribs and given 22% of the disability
to the limb . However, not stated what was the disability
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for the whole body. Normally, court used to consider 1/3rd
of the disability towards the whole body. Therefore, it
requires to consider 10% at least towards disability of
whole body. However, the tribunal considered only 5%,
which is not correct. Therefore, it requires to be
considered as 10% .
"Loss of future earning capacity" :- Hence, if the
income of the injured is considered as below;
Rs.14,000/- x 12 x 9 x 10% = Rs.1,51,200/-
should be actual loss of earning capacity.
14. Pain and suffering:- As regards, to the pain
and suffering, the tribunal awarded only Rs.10,000/- on
the grievous injuries suffered by the petitioner on the ribs
hence the same is enhanced to Rs.25,000/-.
15. Medical expenses:- As regards to the
medical expenses Rs.11,000/- is granted by the tribunal
and same remains unchanged.
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16. Loss of future amenities:- the tribunal has
only awarded Rs.3000/- there is scope for enhancement.
Hence, the same is enhanced to Rs.20,000/-
17. Loss of income during treatment and
rest;- As regards to the laid up charges, the tribunal
awarded only Rs.12000/-, normally the court considers 3
months of the injury for the fracture on ribs. Therefore,
the same is requires to be considered for 3 months which
goes as under:-
Rs.14,000/- income x 3 months which is
Rs.42,000/-
18. "Food and nourishment, attendant and
conveyance charges:- As regards to the charges
towards "food and nourishment, attendant and
conveyance charges" the tribunal awarded Rs.21,000/- in
all, the same is retained. Accordingly the petitioner is
entitled for the enhancement as under,
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Particulars Amount
in Rs.
Loss of earning capacity Rs.1,51,200/-
Pain and Suffering 25,000/-
Medical expenses Rs.11,000/-
Loss of future amenities Rs.20,000/-
Loss of income during Rs.42000/-
treatment and rest
Food nourishment, and Rs.21000/-
transportation
Total 2,70,200/-
19. As regards to the appellant in case MVC
No.492/2019 (MFA No.1289/2022) the petitioner age
is 56 years and income is rightly taken by the tribunal as
Rs.14000/- p.m. However, as per the evidence of the
Doctor/PW3, the disability of the limb was 22%.
Therefore, to the whole body it comes to 7% but the
tribunal considered only 5%, which is not correct.
Therefore, the same is considered as 7% .
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"Loss of future earning capacity" :- Hence, if the
income of the injured is considered as below;
Rs.14,000/- x 12 x 9 x 7% = Rs.1,05,840/- should
be actual loss of earning capacity.
20. Pain and suffering:- As regards to the pain
and suffering the tribunal allowed only Rs.5000/- whereas
the petitioner suffered grievous injury to the left distal
radius fracture. Looking to the facts and circumstances of
the case, the same requires to be enhanced to
Rs.20,000/- instead of Rs.5000/-.
21. Medical expenses:- As regards to the
medical expenses Rs.13,000/- is granted by the tribunal
and same is just and proper.
22. Loss of future amenities:- the tribunal has
only awarded Rs.3000/- there is scope for enhancement.
Hence, the same is enhanced to Rs.10,000/-.
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23. Loss of income during treatment and
rest;- As regards to the laid up charges, the tribunal
considered one month. Therefore, the same is requires to
be considered for 2 months which goes as under:-
Rs.14,000/- income x 2 months which is
Rs.28,000/-
24. "Food and nourishment, attendant and
conveyance charges:- As regards to the charges
towards "food and nourishment, attendant and
conveyance charges" the tribunal awarded Rs.3000/- in
all, and the same is required to be enhanced to Rs.5,000/-
Accordingly the petitioner is entitled for the enhancement
as under,
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Particulars Amount
in Rs.
Loss of earning capacity 1,05,840/-
Pain and Suffering 20,000/-
Medical expenses 13,000/-
Loss of future amenities 10,000/-
Loss of income during 28,000/-
treatment and rest
Food nourishment, and 5,000/-
transportation
Total 1,81,840/-
Rounded off to 1,82,000/-
25. Accordingly, I pass the following:
ORDER
i. Both the appeals are allowed in part.
ii. The judgment and award dated 18.12.2021 passed in
MVC Nos.493/2019 and 492/2019 on the file of II
Additional Senior Civil Judge and MACT-V,
Chitradurga, is hereby enhanced;
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iii. (a) The claimant/appellant in MVC No.493/2019
(MFA No.1288/2022), is entitled for a sum of
Rs.2,70,200/- instead of Rs.1,47,720/- granted by
the tribunal,
(b) The claimant/appellant in MVC No.492/2019
(MFA No.1289/2022) is entitled for a sum of
Rs. 1,82,000/-/- instead of Rs.1,13,600/-;
iv. The enhanced compensation amount shall be paid by
the respondent-Insurance Company with interest @
6% per annum within a period of two months from
the date of receipt of a copy of this order;
v. The amount if any awarded is already deposited shall
be adjusted;
vi. The Trial Court to release entire compensation;
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vii. The respondent shall deposit the compensation
within two months from the date of receipt of the
copy of the order;
viii. 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
ix. Draw award accordingly.
Sd/-
JUDGE
AKV
CT:SK
