Karnataka High Court

Sri Nagaraja Acharya vs Sri Kashappa K Belaganthi on 7 March, 2024

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                                                            NC: 2024:KHC:10284-DB
                                                              MFA No. 8589/2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 7TH DAY OF MARCH, 2024

                                             PRESENT

                            THE HON'BLE MRS JUSTICE K.S.MUDAGAL

                                               AND

                           THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

                    MISCELLANEOUS FIRST APPEAL NO.8589/2017 (MV-I)

                   BETWEEN:

                   SRI NAGARAJA ACHARYA
                   AGED ABOUT 30 YEARS,
                   S/O. MANJUNATHA ACHARI,
                   R/AT THARIKODLU,
                   SIDDAPURA VILLAGE & POST,
                   KUNDAPURA TALUK & UDUPI DISTRICT.                 ... APPELLANT

                   (BY SRI JAYAKARA SHETTY H., ADVOCATE)

                   AND:

                   1.    SRI KASHAPPA K BELAGANTHI
Digitally signed         S/O. KARIYAPPA
by SHYAMALA              AGED ABOUT 35 YEARS,
Location: HIGH           R/O. BELAGANTHI,
COURT OF                 NARANURU VILLAGE & POST,
KARNATAKA                BADAMI TALUK, BAGALKOT DISTRICT.

                   2.    SMT. ASHA HEGDE
                         AGED ABOUT 32 YEARS,
                         W/O. AKSHAYA HEGDE,
                         R/O. ASHA NILAYA,
                         NEERJADDU, HEGGUNJE VILLAGE
                         UDUPI TALUK & DISTRICT.

                   3.    LEBERTY VIDEOCON GENERAL INSURANCE CO. LTD.,
                         NO.4-1-85/21, SHOP NO.203
                         2ND FLOOR, INLAND AVENUE,
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                                         NC: 2024:KHC:10284-DB
                                           MFA No. 8589/2017




      M.G.ROAD, MANGALURU-03
      D.K. DISTRICT.                           ... RESPONDENTS

(BY SRI RAVI S. SAMPRATHI, ADVOCATE FOR R-3;
    R-1 & R-2 ARE SERVED AND UNREPRESENTED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 10/08/2017, PASSED IN MVC NO.466/2015, ON THE FILE OF
THE SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MACT,
KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL
HEARING THIS DAY, K.S.HEMALEKHA J., DELIVERED THE
FOLLOWING:


                          JUDGMENT

The question that falls for consideration in this appeal

is,

"Whether the claimant is entitled for enhanced compensation in the facts and circumstances of this case?"

2. The claimant - injured sought compensation of

Rs.25,00,000/- under various heads on account of road

traffic accident that occurred on 28.04.2015 at about 3.50

p.m. when the claimant was proceeding on his motorcycle

bearing registration No.KA-20/AB-7781 towards Ammaparu

side, at that time, a tipper lorry bearing registration No.KA-

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20/A-7415 came from opposite direction in a rash and

negligent manner and dashed against the motorcycle. Due

to the impact of the accident, the claimant suffered grievous

injuries. The claimant contended that he was doing

centering work under one Ganesh Sidhapur and earning

around Rs.15,000/- per month, the accident has made him

to suffer permanent disability and loss of future earnings for

no fault of him.

3. Pursuant to the summons issued by the Tribunal,

respondent Nos.1 and 2 have chosen to remain absent and

hence, they were placed ex parte.

4. Respondent No.3-insurance company appeared

and filed objections, inter alia, contending that the driver of

the offending vehicle tipper lorry was not holding valid and

effective driving licence to drive the lorry, and contended

that the accident occurred due to the contributory negligence

on the part of the claimant as the injured was driving

motorcycle in a rash and negligent manner attributing to the

accident.

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5. The trial Court, on the basis of the pleadings,

framed the necessary issues.

6. In order to substantiate their claim, the claimant

got examined himself as PW.1 and doctor-Monappa Naik was

examined as PW.2 and got marked documents at Exs.P-1 to

P-15. On the other hand, respondents did not adduce any

evidence.

7. The Tribunal, on the basis of the oral and

documentary evidence, held that the claimant suffered

grievous injuries on account of the rash and negligent driving

of the driver of the tipper lorry bearing registration No. KA-

20/A-7415, awarded compensation of Rs.7,02,152/- and

fastened the liability to the insurance company to pay the

compensation amount.

8. Questioning the adequacy of compensation, the

claimant is before this Court.

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9. Heard Sri Jayakara Shetty H., learned counsel for

the appellant-claimant and Sri Ravi S.Samprathi, learned

counsel appearing for the respondent-insurance company.

10. The occurrence of the accident, time, date and

the negligence on the part of the driver of the offending

vehicle- tipper lorry bearing registration No.KA-20/A-7415

are not in dispute. Ex.P-1 is the complaint lodged against

the driver of the tipper lorry, Ex.P-2 is the spot mahazar,

Ex.P-5 - the police notice. The material on record would

indicate that the accident occurred due to the rash and

negligent driving of the driver of the offending vehicle. The

negligence on the part of the driver of the offending vehicle

has remained unchallenged by the respondents. What

remains to be adjudicated is, only the quantum of

compensation awarded by the Tribunal.

11. Ex.P-5 the wound certificate indicates that the

claimant/injured has suffered following injuries:

(i) Open right distal femur fracture

(ii) Open right proximal tibia fracture

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(iii) Dorsal 3rd vertebra chance fracture ASIA with

closed head injury

(iv) Lacerated wound 3 x 1 x 1 cms. Over right

eyebrow

(v) Lacerated wound 6 x 2 x 1 cms. Over the scalp.

12. The injuries sustained and the disability suffered

is spoken to by PW.2 - doctor, who categorically stated

about the infirmities and the disability that the claimant

suffered and opined that there is functional disability to the

extent of 22%. The perusal of the impugned order would

indicate that the Tribunal has taken the income of the

deceased at Rs.7,000/- as no income proof was produced by

the claimant - injured to show the actual income.

Considering the prevailing wage rates and cost of living, the

age and occupation of the victim/claimant in the year 2015,

the income considered by the Tribunal is on the lower side.

Reasonably that has to be assessed at Rs.9,000/- p.m. The

driving licence Ex.P-11 and the wound certificate Ex.P-5

show that the claimant was aged about 28 years. The

Tribunal has taken the functional disability at 22% which we

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are of the considered view is justifiable. Taking the income

of the injured-claimant at Rs.9,000/- p.m., applying the

multiplier 17 for the age at 28 years, which is undisputed

and the disability at 22% the loss of future earning of the

claimant would be arrived at Rs.4,03,920/- (9,000 x 12 x 17

x 22 = Rs.4,03,920/-).

13. The actual medical bills incurred by the claimant

is Rs.2,31,996/-. Perusal of the chart of the compensation

awarded by the Tribunal, shows that the Tribunal has

deducted certain amount availed by the claimant under

Manipal Arogya Card and Sampoorna Suraksha Scheme,

which according to us is not justifiable and the Tribunal was

not justified in awarding only Rs.1,99,992/- under the head

medical bills. According to us, the medical bills which the

claimant would be entitled against the actual bills submitted

is Rs.2,01,688/-.

14. Perusal of the impugned order would also indicate

that the award of compensation under various heads needs

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to be re-assessed and accordingly, the re-assessed

compensation of the claimant is as under:

     Sl.          Particulars                     Amount (Rs.)
     No.
      1 Loss of future income                        4,03,920/-
     2      Pain and suffering                           75,000/-
     3      Loss of income during                        36,000/-
            laid up period(9,000x4)
     4      Actual medical bills                     2,31,996/-
     5      Diet,     nourishment    &                   50,000/-
            conveyance
            & attendant charges For 14
            days
     6      Loss of Amenities                            50,000/-
     7      Future medical expenses                      50,000/-
                     TOTAL                          8,96,916/-
             Compensation awarded by                          -
                   the Tribunal                      7,02,152/-
             Enhanced Compensation                  1,94,764/-

15. The claimant injured is entitled for Rs.8,96,916 as

against 7,02,152/-. The enhanced compensation the

claimant injured is entitled to is, Rs.1,94,764/- with interest

at the rate of 6% p.a. from the date of petition till the date

of realization and accordingly, this Court pass the following:

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ORDER

(i) Appeal is partly allowed.

(ii) The impugned judgment and award dated 10.08.2017

passed by the Senior Civil Judge & Addl. MACT,

Kundapur, is modified as follows:

(a) The claimant is entitled to the enhanced compensation of Rs.1,94,764/- with interest thereon at 6% p.a. from the date of petition till its realization.

(b) Respondent No.3-insurance company shall deposit the said amount before the Tribunal within four weeks from the date of receipt of a copy of this order. On such deposit, the Tribunal shall release the amount to the claimant digitally on furnishing the requisite documents.