Karnataka High Court

Sri Narasimha Murthy vs Sri. Harish V on 7 June, 2024

Author: K.Natarajan

Bench: K.Natarajan

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                                                             NC: 2024:KHC:20050
                                                           MFA No. 1378 of 2022




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 7TH DAY OF JUNE, 2024

                                              BEFORE
                               THE HON'BLE MR JUSTICE K.NATARAJAN
                      MISCELLANEOUS FIRST APPEAL NO. 1378 OF 2022 (MV-I)

                      BETWEEN:
                            SRI. NARASIMHA MURTHY
                            AGED ABOUT 43 YEARS,
                            S/O GANGAPPA, R/O NO.146,
                            CHINCHANAHALLI, DHARINAYAKA PALYA,
                            GOWRIBIDANUR TALUK,
                            CHIKKBALLAPUR DISTRICT - 562 106.
                                                                   ...APPELLANT
                      (BY SRI. VISHWANATHA K., ADVOCATE)
                      AND:
                      1.    SRI. HARISH V
                            S/O SRI. VENKATESH,
                            R/O NO.600, BANNERGHATTA ROAD,
                            GOTTIGERE POST, BENGALURU - 560 083.

                      2.  THE HDFC ERGO GEN INS CO LTD.
                          2ND FLOOR, SHNAKR NARAYANA BUILDING,
Digitally signed by
VEDAVATHI A K             ANNEXURE, M.G. ROAD, BENGALURU - 01.
Location: High
Court of Karnataka                                             ...RESPONDENTS
                      (BY SRI. H. S. LINGARAJU, ADVOCATE FOR R2;
                           VIDE ORDER DATED:28/2/2022, 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 17.11.2021 PASSED IN MVC NO.5321/2019
                      ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL
                      CAUSES, MEMBER, PRINCIPAL MOTOR ACCIDENT CLAIMS
                      TRIBUNAL, BENGLAURU (S.C.C.H-1), PARTLY ALLOWING THE
                      CLAIM PETITION FOR COMPENSATION AND SEEKING
                      ENHANCEMENT OF COMPENSATION.
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                                            NC: 2024:KHC:20050
                                         MFA No. 1378 of 2022




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

                         JUDGMENT

Though this appeal is posted for admission, with consent

of learned counsel for the parties, the same is taken up for

final hearing and disposed of by this judgment.

2. This appeal is preferred by the claimant against

the judgment and award dated 17.11.2021 passed by the

Chief Judge, Court of Small Causes & Member, Principal Motor

Accident Claims Tribunal, Bengaluru, in MVC No.5321/2019,

seeking enhancement of compensation.

3. The parties to the appeal shall be referred to as per

their ranking before the Tribunal.

4. Heard the learned counsels appearing for the parties.

5. The case of the petitioner-claimant is that the

petitioner filed a claim petition under Section 166 of the Motor

Vehicles Act, 1988, seeking compensation for the injuries

sustained by him in the road accident that occurred on

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08.07.2019 at about 1.45 p.m. near Bychapura Cross,

Gowribidanur Taluk, Chikabalapura district. On the said date,

when the claimant was proceeding on his motor cycle bearing

No.KA.40/EB.6595 towards Bychapura Cross, at that time, the

rider of Honda Shine Motor Cycle bearing No.KA.05/KM.2448

came from opposite direction in a rash and negligent manner

and in high speed, dashed against the petitioner's motor cycle.

Due to the impact, the petitioner fell down and sustained

injuries. The petitioner sustained fracture of femur and other

injuries to his head. Immediately, he was shifted to

Gowribidanur Government Hospital and thereafter, he was

shifted to Profile Multi-Specialty Hospital, Bengaluru, wherein

he took treatment as inpatient. Due to the accident, the

petitioner suffered permanent disability to the upper limb.

Hence, prayed for compensation.

6. After service of notice of the petition, respondent

No.1 remained absent and placed ex-parte. Respondent No.2-

insurance company appeared and filed statement of objections

denying the petitioner's age, occupation and income and

prayed for dismissal of the petition.

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7. Based upon the pleadings, the Tribunal framed the

following issues:

1) Whether the petitioner proves that he sustained injuries in a Motor Vehicle Accident that occurred on 08.07.2019 at about 1.45 pm., near Bychapura Cross, Gowribidanur Taluk, Chikkaballapur District within the jurisdiction of Gowribidanur Rural Police station on account of rash and negligent riding of the motorcycle (Honda Shine) bearing Registration No.KA.05/ΚΜ.2448 by its rider when the petitioner was riding his motorcycle bearing Reg. No.ΚΑ.40/ΕΒ.6595?

2) Whether the respondent No.2 proves that the accident has occurred on account of rash and negligent riding of petitioner himself?

3) Whether the petitioner is entitled for compensation? If so, how much and from whom?

4) What Order?

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8. In support of the petitioner's case, the petitioner got

himself examined as P.W.1 and also examined two witnesses

as P.Ws.2 and 3 and marked 16 documents as per Exs.P.1 to

P.16. On behalf of the respondent, no evidence was led by the

respondent. However, during Cross examination of P.W.1,

one document was marked as Ex.R.1.

9. On the basis of the material evidence, both oral and

documentary, and on hearing the submissions of learned

counsels for both sides, the Tribunal awarded the

compensation of Rs.5,32,225/- with interest at 6% per annum

from the date of petition till realization. Being aggrieved by

the compensation awarded by the Tribunal, the petitioner-

claimant is before this Court in this appeal.

10. Learned Counsel for the petitioner has contended

that the petitioner was aged about 40 years at the time of

accident in the year 2019. His income was more than

Rs.20,000/- per month. But, the Tribunal has considered his

income at Rs.12,000/- per month, which is meager and it has

to be enhanced. As per the notional income recognized by the

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Karnataka State Legal Services Authority, an income of

Rs.14,000/- per month would be considered for the accident

of the year 2019. The learned counsel has further contended

that the petitioner has sustained the grievous injuries. He was

shifted to the hospital at Bengaluru from Gowribidanur

Government hospital and the Tribunal has taken the laid up

period for only two months, which should be enhanced to

three months. Accordingly, he prayed for allowing the appeal.

11. Learned Counsel for respondent No.2-insurance

company supported the judgment and award passed by the

Tribunal and contended that the Tribunal has awarded the just

and reasonable compensation on the basis of the materials

placed on record. It is contended that there is no specific

document produced to show that the petitioner-claimant has

taken the treatment for three months and therefore, the

compensation awarded by the Tribunal is just and proper.

Hence, the learned counsel prayed for dismissing the appeal.

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12. After hearing the arguments of the learned counsel

for the parties, the only point that arises for my consideration

is,

Whether the appellant is entitled for enhancement of compensation? If so, what award/amount ?

13. As regards the injuries sustained by the petitioner,

though the learned counsel for the respondent-insurance

company has taken the contention in this regard, but no

evidence was adduced and no objection was filed. Therefore,

the only quantum of compensation is awarded.

14. In respect of income of the petitioner, the Tribunal

has considered Rs.12,000/- per month, but no reason has

been assigned for taking the amount of 12,000/- per month

towards the income of the petitioner. Even in the Lok Adalat

cases, Rs.14,000/- per month is taken for the accident of the

year 2019. Hence, I propose to consider Rs.14,000/- per

month as the income of the petitioner.

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15. As regards the pain and suffering, the

compensation awarded by the Tribunal at Rs.50,000/- for the

fracture of femur is correct and there is no need to enhance

the same.

16. Further, the award of Rs.11,000/- towards food

and nourishment and attendant charges, awarded by Tribunal,

in my opinion, is less. The petitioner was taken to a hospital at

Bengaluru from the Government hospital at Gowribidanur. He

has spent a lot of amount towards food and nourishment and

attendant charges. Hence, I intend to award Rs.20,000/-

under this head.

17. The Tribunal has awarded Rs.2,01,225/- towards

the medical expenses, which amount was based upon the

medical bills produced by the petitioner and hence, the same

does not call for interference and the same is retained.

18. As regards the loss of income during the laid up

period, the Tribunal has considered only two months, but this

Court enhances the same by three months. Therefore, the

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loss of income during the laid up period comes to Rs.42,000/-

(Rs.14,000 x 3).

19. As regards the future medical expenses, the

petitioner has been treated by putting implant, which has to

be removed over a period of time. Therefore, the Tribunal has

awarded Rs.25,000/- towards future medical expenses, which

in my considered view, does not require any interference and

the same is retained.

20. As regards the loss of future income on account of

disability, the Tribunal has taken the disability of 34%

towards upper limb and the disability of 10% towards whole

body. Learned counsel for the appellant has contended that

the doctor has opined 17% disability to the whole body, but

only 10% disability has been taken by the Tribunal.

Therefore, I propose to consider 1/3rd on 34% disability, i.e.

the disability at 11.33% (rounded off to 12%) towards whole

body instead of 10% disability considered by the Tribunal,

towards loss of future income on account of disability.

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21. It is stated that the appellant was aged about 40

years as at the time of the accident. For the said age, the

proper multiplier applicable as per the decision of the Hon'ble

Apex Court in the case of SARLA VERMA AND OTHERS VS.

DELHI TRANSPORT CORPORATION AND ANOTHER

reported in AIR 2009 SC 3104, is '15'. Thus, taking the

monthly income at Rs.14,000/-, disability at 12% and

multiplier of '15', the compensation towards loss of future

income on account of disability comes to Rs.3,02,400/-

(Rs.14,000x12x12x15). Accordingly, the same is awarded.

22. Learned counsel for the appellant has also

contended that the appellant-petitioner has sustained the

crush injury on the foot apart from the femur injury.

Therefore, he is entitled for the loss of amenities, which is not

awarded by the Tribunal. There is no crush injury as

submitted by the learned Counsel for the appellant and as per

the wound certificate, the injury sustained by the petitioner is

simple in nature. Considering the fact that the petitioner has

sustained the fracture of multiple injuries, he might have

definitely undergone the loss of amenities. However, the

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Tribunal has not awarded any compensation under this head.

Therefore, I propose to award Rs.50,000/- under the head of

loss of amenities.

23. Thus, the appellant is entitled for a modified

compensation as tabulated below:

Sl.                                                  Amount in
No.
             Heads of compensation
                                                      Rupees

 1    Pain and sufferings                              50,000-00

 2    Food and       nourishment        attendant      20,000-00
      charges

 3    Medical expenses                               2,01,225-00

 4    Transportation charges                           10,000-00

 5    Loss of future income on account of            3,02,400-00
      disability (Rs.14,000x12x12x15)

 6    Loss of income during the laid up                42,000-00
      period

      (Rs.14,000/- x 3)

 7    Future medical expenses                          25,000-00

 8    Loss of amenities                                50,000-00

                     Total
                                                    7,00,625-00
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24. Accordingly, I proceed to pass the following :

ORDER

(i) The appeal filed by the appellant stands

allowed in part;

(ii) The impugned judgment and award

passed by the Chief Judge, Court of Small Causes &

Member, Principal Motor Accident Claims Tribunal,

Bengaluru, dated 17.11.2021 passed in MVC

No.5321/2019 is hereby modified;

(iii) The claimant would be entitled to a sum

of Rs.7,00,625/- as against Rs.5,32,225/- awarded

by the Tribunal together with interest at 6% per

annum;

(iv) The enhanced compensation shall be

paid by the respondent company with interest at

6% per annum within a period of 60 days from the

date of the receipt of copy of this order;