Karnataka High Court
Sri Nagaraju S/O J Marigowda vs Mariswamy S/O Siddaiah on 26 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:23495
MFA No. 5500 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 5500 OF 2021 (MV-I)
BETWEEN:
SRI NAGARAJU S/O J MARIGOWDA
AGED ABOUT 44 YEARS,
R/AT KODAGALLI VILLAGE
BANNUR HOBLI,
T NARASIPURA TALUK
MYSURU - 571 101.
...APPELLANT
(BY SRI P. MAHADEVASWAMY, ADV.)
AND:
1. MARISWAMY S/O SIDDAIAH
AGED ABOUT 51 YEARS,
R/AT NO.424, HALE SOSALE VILLAGE
T NARASIPURA TALUK
MYSURU - 571 101.
Digitally
signed by 2. THE ORIENTAL INSURANCE COMPANY LTD.,
NANDINI MS THE MANAGER,
Location:
High Court of FIRE BRIGADE OPPOSITE
Karnataka SARASWATHIPURAM
MYSURU - 570 007.
...RESPONDENTS
(V/O DATED: 01.02.2024, NOTICE TO R-1 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT PRAYING AGAINST
THE JUDGMENT AND AWARD DATED 14.09.2021 PASSED IN MVC
NO. 161/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC
T NARASIPURA, MYSURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION SEEKING ENHANCEMENT OF COMPENSATION.
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MFA No. 5500 of 2021
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant under Section
173(1) of Motor Vehicles Act, 1988 challenging the
judgment and award dated 14.09.2021 passed in MVC
No.161/2016 by the Senior Civil Judge & MACT,
T.Narasipura, Mysuru.
2. Heard the arguments of the learned counsel for
the appellant and learned counsel for respondent No.2-
Insurance Company. Respondent No.1 served
unrepresented.
3. The status of the parties before the Tribunal is
retained for the sake of convenience.
4. The case of the appellant/claimant is that he
has filed a claim petition before the Tribunal under Section
166 of Motor Vehicles Act (for short 'M.V. Act') claiming
compensation of Rs.10,37,000/- for the injuries sustained
by him in a road traffic accident that occurred on
05.07.2014 inter alia contending that he was proceeding
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on his Motor Cycle bearing Registration No.KA-09-EK-
8115, near Government Hospital, Bannuru, lorry bearing
registration No.KA-40-384 came in a rash and negligent
manner and dashed to the vehicle of the claimant. Due to
which, he had sustained injury on his left hand, right leg
and other parts of the body. The claimant was shifted to
Government Hospital, Bannur for treatment and thereafter
he was taken to K.R. Hospital, Mysuru wherein he was
treated as inpatient and he has spent lot of money
towards medical expenses. He applied leave for
employment. He is said to be working in Court. Hence, he
prayed to grant compensation as prayed for.
5. On service of notice, respondent No.1 did not
appear before the Tribunal and hence placed as exparte.
Respondent No.2-Insurance Company appeared before the
Tribunal and filed written statement and denied the
petition averments and age and occupation of the
claimant. He has taken specific contention that the
offending vehicle in question was not obtained any
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insurance policy as on the date of accident. The insurance
policy was obtained only on 10.07.2014 i.e, after five days
of the accident. Therefore, he prayed for dismissal of the
petition.
6. On the basis of pleadings, the Tribunal framed
the following issues for consideration:
1. Whether the Petitioner proves that, on
05.07.2015 at about 5.00 p.m, when he was
proceeding on his motorcycle bearing
Reg.No.KA-09-EK-8115 near Bannur
Government Hospita, the driver of lorry
bearing Reg.No.KA-40-384 drove the same in a
rash or negligent manner so as to endanger
human life and dashed to the motorcycle of the
petitioner and caused accident due to which he
had sustained grievous injuries?
2. Whether the Petitioner is entitled for
Compensation? If so, what extent and from
whom?
3. What order or award?
7. In order to substantiate the issues and to
establish the case, claimant got examined himself as PW.1
and one witness as PW.2 and got marked documents as
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per Exs.P1 to P17. On the other hand, the official of
respondent No.2 examined himself as RW.1 and produced
one document as Ex.R.1.
8. On the basis of material evidence, both oral and
documentary and on hearing the submissions of learned
counsel for both the parties, the Tribunal has awarded
compensation of Rs.83,531/- as under:
Heads of compensation Compensation Amount
Towards pain & sufferings Rs.25,000/-
Towards medical expenses Rs.18,661/-
Towards Future medical NIL
expenses
Towards Attendant charges, Rs.2,000/-
food and conveyance
Loss of future income NIL
Towards Loss of income Rs.12,870/-
during the period of
treatment
Towards loss of amenities & Rs.25,000/-
loss of expectation of life
(shortening of longevity)
TOTAL Rs.83,531/-
9. The Tribunal fastened the liability on
respondent No.1 - owner of the vehicle and the petition
against respondent No.2 - Insurance Company has been
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dismissed. Being aggrieved by the meager compensation
awarded by the Tribunal, the claimant is before this Court
challenging the impugned judgment and award.
10. Learned counsel for the appellant has contended
that the Tribunal has not properly considered the
compensation while discussing all heads and awarded only
a meager compensation under the various heads.
Accordingly, he prays to enhance the compensation.
11. Per contra, learned counsel for respondent No.2
submits that there is no liability fixed on respondent No.2
and prays for dismissal of the petition against them.
12. Having heard the arguments addressed on both
sides and perused the material available on record, the
point that arises for my consideration is:
Whether the appellant is entitled for
enhancement of compensation? if so, to
what extent?
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13. On perusal of record, there is no dispute with
regard to accident that was occurred due to rash and
negligent driving of the driver of the lorry bearing
registration No.KA-40-384 belonging to respondent No.1
and due to which the petitioner sustained injury. Ex.P.1 is
FIR and complaint, Ex.P3 is police intimation, Ex.P6 is
charge sheet, Ex.P.2 & 7 are wound certificate and
discharge summary, Ex.P8 to 15 are other medical records
which reveals that the appellant has sustained grievous
injuries. The claimant is said to be working in the Court.
As such, there is no loss of any future income due to
disability. The claimant has not examined any doctor to
prove the disability which affected his earning capacity. He
being judicial employee there is no question of loss of any
future income. Therefore, question of granting any
compensation towards future loss of income due to
disability would not arise. However, the claimant is entitled
for compensation under other heads.
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14. As regards pain and suffering, the claimant has
suffered two injuries, one is grievous injury and another
one is simple injury to the left upper limb, fracture to left
wrist and right ankle. He has also undergone surgery when
he admitted in the hospital and he has applied 17 days
leave for the purpose of treatment. The Tribunal awarded
compensation of Rs.25,000/- towards 'pain & sufferings' is
very meager. Hence, it is just & proper to award
compensation of Rs.50,000/- towards 'pain &
sufferings'.
15. As regards medical expenses, the Tribunal has
awarded compensation of Rs.18,661/- and the same is
retained.
16. As regards income during laid up period, he has
applied for 17 days earned leave and also applied for
casual leave and has exhausted his leave of the year.
Therefore, definitely there would be a loss of earned leave
which he may have encashed at the end of the financial
year. Therefore, I proposed to award compensation of
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Rs.15,000/- towards 'loss of income during laid up
period'.
17. As regards loss of amenities, the claimant was
said to be riding motorcycle and he has sustained injury
on the ankle which would definitely affect to ride the
motorcycle and he could not use his left hand for working.
Therefore, he is entitled for loss of amenities during the
life time. The Tribunal has rightly awarded compensation
of Rs.25,000/- towards 'loss of amenities' and the same
remains unaltered.
18. As regards attendant charges, food and
conveyance, the Tribunal has awarded only Rs.2,000/-.
The claimant was admitted in the hospital for three days.
Therefore, some person should have taken care of his
health in the hospital and he was shifted to house and also
taken further treatment in the hospital. Such being the
case, he could have spent amount towards food, attendant
charges and conveyance. Therefore, I proposed to award
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Rs.10,000/- towards 'Attendant charges, food, and
conveyance'.
19. In view of the above, the claimant would be
entitled to a total compensation of Rs.1,18,661/- as
against Rs.83,531/- as mentioned in the table below:
Heads Amount in
Rs.
Towards pain & sufferings Rs.50,000.00
Towards medical expenses Rs.18,661.00
Towards Future medical expenses NIL
Towards Attendant charges, food and Rs.10,000.00
conveyance
Loss of future income NIL
Towards Loss of income during the period Rs.15,000.00
of treatment
Towards loss of amenities & loss of Rs.25,000.00
expectation of life (shortening of longevity)
TOTAL Rs.1,18,661.00
20. Respondent No.2 - insurance company
examined his official as RW.1 and marked document as
per Ex.R1. Respondent No.1 obtained insurance only after
five days of the accident, which clearly reveals that as on
the date of accident the offending vehicle did not possess
any valid license. Therefore, liability cannot be fastened on
the insurance company and respondent No.1 - owner of
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the lorry is liable to pay compensation as rightly
contended by the Tribunal.
21. Accordingly, I pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The judgment and award dated 14.09.2021
passed in MVC No.161/2016 passed by the Senior
Civil Judge & MACT, T.Narasipura, Mysuru is
modified;
iii) The claimant would be entitled to a sum of
Rs.1,18,661/- as against Rs.83,531/-;
iv) Respondent No.1 is directed to deposit award
amount.
v) Appeal as against respondent No.2-Insurance
Company is dismissed.
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.
vii) Draw award accordingly.
Sd/-
JUDGE
NMS
