Karnataka High Court

Siddaraju Naik @ Sidda Raju vs The Manager on 27 May, 2024

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                                                      MFA No. 5740 of 2018
                                                         NC: 2024:KHC:17600




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 27TH DAY OF MAY, 2024

                                           BEFORE
                            THE HON'BLE MS JUSTICE J.M.KHAZI
                               M.F.A NO.5740 OF 2018 (MV-I)
                   BETWEEN:

                        SIDDARAJU NAIK @ SIDDA RAJU
                        S/O NAGA NAIK
                        AGED ABOUT 22 YEARS,
                        R/AT VASAPPANADODDI VILLAGE
                        KODIHALLI HOBLI, KANAKAPURA TALUK
                        RAMANAGARA DISTRICT - 571 511
                                                               ...APPELLANT
                   (BY SRI. GIRISHA H M, ADVOCATE)

                   AND:

                   1.   THE MANAGER
                        RELIANCE GENERAL INSURANCE CO. LTD.,
                        NO.3, 1ST FLOOR
                        MANANDI PLAZA, ST. MARKS ROAD
                        BESIDE ST. MARKS HOTEL
                        BENGALURU - 560 001
Digitally signed
by REKHA R
Location: High     2.  MR. NAGESH D
Court of               S/O DASEGOWDA
Karnataka              R/AT DODDABADAGERE
                       HAROHALLI HOBLI, KANAKAPURA TALUK
                       RAMANAGARA DISTRICT - 571 511
                       (RC OWNER CUM DRIVER OF OFFENDED VEHICLE
                       TATA ACE BEARING NO.KA-42-A-0219)
                                                           ...RESPONDENTS
                   (BY SRI. LINGARAJ H S, ADVOCATE FOR R1;
                       VIDE ORER DATED 08.02.2019, NOTICE TO R2 IS
                       DISPENSED WITH)

                        THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                   AGAINST THE JUDGMENT AND AWARD DATED 31.03.2018
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                                            MFA No. 5740 of 2018
                                              NC: 2024:KHC:17600




PASSED IN MVC NO.1002/2017 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU (SCCH-14) AND TO
MODIFY THE AWARD BY ALLOWING THE CLAIM PETITION, IN
THE INTEREST OF JUSTICE AND EQUITY.

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

                          JUDGMENT

Not being satisfied with the quantum of

compensation granted for the injury suffered by him,

petitioner has filed this appeal under Section 173 (1) of

the Motor Vehicles Act, seeking enhancement.

2. For the sake of convenience, parties are

referred to by their rank before the Tribunal.

3. FACTS: It is the case of petitioner that on

11.02.2017, at about 12:30 PM, petitioner was riding

motor cycle bearing registration number KA-42-A-3605

on NH-209, Kanakapura-Bengaluru Main Road. He was

proceeding near Kaggalahalli Lake and on the left side of

the road towards Bengaluru very carefully, cautiously and

observing all the traffic rules. However, a TATA Ace vehicle

bearing registration number KA-42-A-0219 (for short

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'offending vehicle') being driven by its owner i.e

respondent No.1, in a high-speed in a rash or negligent

manner, came from the opposite side and dashed against

the motor cycle of petitioner. As a result of the accident,

petitioner fell down and sustained fracture of both bones

of left leg, fracture of right clavicle, and other injuries.

Despite prolonged treatment, he is not completely cured.

The injuries sustained by the petitioner have resulted in

permanent partial disability affecting his earning capacity.

As the insurer and owner respondents are jointly and

severally liable to pay the compensation and hence the

petition.

4. Before the Tribunal, respondent No.2 owner-

cum-driver of the offending vehicle, though appeared

through counsel has not filed the written statement.

5. Respondent No.1/Insurance company has

appeared through counsel and filed written statement,

admitting the coverage of the offending vehicle, but

subject to the terms and conditions of the policy.

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However, respondent No.1 has disputed the age,

occupation, income of the petitioner, cause of accident,

nature of the injury sustained and that they have resulted

in permanent partial disability. It has alleged that the

accident occurred due to the rash or negligent driving of

the motorcycle by the petitioner. The compensation

claimed is highly exorbitant, excessive, arbitrary,

unreasonable, and without any legal basis and sought for

dismissal of the petition against it.

6. Based on these pleadings, the Tribunal has

framed necessary issues.

7. In order to prove his case, petitioner has

examined himself as PW-1, two witnesses as PW-2 and 3.

He has relied upon Ex.P1 to 15.

8. On behalf of respondent No.1, one witness is

examined as RW-1. Ex.R1 to 4 are marked.

9. Respondent No.2 has not lead any evidence on

his behalf.

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10. Vide the impugned judgment and award, the

tribunal has partly allowed the claim petition granting

compensation in a sum of Rs,5,17,000/- as against

respondent Nos.1 and 2 and directed respondent No.1 to

pay the compensation with interest at 9% per annum, as

detailed under:

                   Heads                      Amount
                                               In Rs.
     Pain and sufferings                           25,000
     Nourishment, conveyance and                    5,000
     attendant charges
     Medical expenses                           1,75,000
     Loss of future earning capacity            2,59,000
     due to permanent disability
     Loss of amenities                            25,000
     Loss of earnings during laid up               8,000
     period
     Future Medical expenses                      20,000
     TOTAL                                     5,17,000

11. Respondents have not challenged the impugned

judgment and award.

12. Seeking enhancement of the compensation, the

petitioner has filed this appeal, contending that having

regard to the nature of the injury sustained by the

petitioner and the fact that they have resulted in

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permanent partial disability, the compensation granted

under all the heads is on the lower side. The income ought

to have been taken at Rs.15,000/- per month. The whole

body disability should have been taken at 26%. In the

light of medical bills placed on record, petitioner is entitled

for compensation in a sum of Rs.2,15,443/- under the

head medical expenses. The interest ought to have been

granted at 12% per annum and pray to allow the appeal

and enhance the compensation.

13. On the other hand, learned counsel

representing respondent No.1 supported the impugned

judgment and award and sought for dismissal of the

appeal.

14. Heard elaborate arguments of both sides and

perused the record.

15. Having regard to the fact that respondents

have not challenged the impugned judgment and award,

the findings of the Tribunal that accident occurred due to

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the rash or negligent driving of the offending vehicle and

at the time of accident, it was covered by a valid policy

issued by respondent No.1 has attained finality.

16. Therefore, the only question that is required to

be decided is whether the compensation granted is just

and reasonable or it calls for any enhancement.

17. In the petition, the petitioner has given his age

as 21 years. Respondent No.2 has disputed the same.

During his cross-examination, petitioner has stated that he

has completed SSLC. Though he has stated that there is

no impediment to produce the SSLC marks card, he has

not produced the same. However, the respondent No.2

has not taken any steps to produce any other document or

to summon the SSLC marks card to show that the age of

the petitioner is more than 21 years. In the medical

records, his age is given as 21 years. Taking into

consideration these aspects, this Court is of the considered

opinion that the trial Court is justified in taking the age of

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petitioner as 21 years and 18 as the appropriate

multiplier.

18. Though the petitioner has claimed that he was

working in a bakery and earning Rs.15,000/- per month,

he has not produced any documents to that effect.

Therefore, in the absence of proof of exact income, based

on minimum wages and having regard to the fact that the

accident is of the year 2017, the income of petitioner is

required to be taken at Rs.11,000/- instead of Rs.8,000/-

taken by the trial Court.

19. Since the petitioner has suffered fracture of

right clavicle and fracture of left Tibia and Tibia is a

weight-bearing bone, this Court is of the considered

opinion that the petitioner is entitled for compensation in a

sum of Rs.55,000/- towards pain suffering. However, the

compensation granted in a sum of Rs.25,000/- under the

head loss of amenities is correct. Having regard to the fact

that the petitioner has suffered two fractures, it is

expected that he is required to take rest for at least a

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period of three months. Therefore, at the rate of

Rs.11,000/- per month, petitioner is entitled for

compensation in a sum of Rs.33,000/- under the head loss

of earning during laid up period, instead of Rs.8,000/-

granted by the tribunal. He is also entitled for

compensation sum of Rs.30,000/- under the head,

nourishment, convenience and attendant charges instead

of Rs.5,000/- granted by the Tribunal.

20. In the accident, the petitioner has suffered

fractures. PW-3 Dr S.A.Somashekhar is not treating

doctor. He has examined the petitioner for ascertaining

the disability and deposed that the petitioner has suffered

disability of both limbs at 52% and so far as whole body is

concerned, it comes to 26%. Only based on the Discharge

summary, he has given his opinion. He has admitted that

the recent x-ray shows that there is United fracture of

right clavicle with AC joint disruption and united fracture

of left tibia with the implants in situ at both sites. His

evidence reveal that it is possible for the petitioner to

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NC: 2024:KHC:17600

work, though with the little difficulty. Having regard to the

fact that PW-3 is not the treating doctor, this Court is of

the considered opinion that the Tribunal is justified in not

accepting the whole body disability of petitioner at 26%.

However, it is required to be taken at 1/3rd of the whole

body which comes to 18%. Hence, the disability of the

particular limb is considered at 18%. With these

components, the compensation under the head loss of

earning capacity comes to Rs.11,000×12×18×18% =

Rs.4,27,680/- instead of Rs.2,59,000/- granted by the

Tribunal.

21. Though in the appeal memo, the petitioner has

stated that the compensation granted under the head

medical expenses is on the lower side, during the course

of arguments, learned counsel for petitioner submitted

that he won't dispute the same. In fact, based on the

records and the testimony of RW-1 and Krishnappa V, the

MRO of the hospital where petitioner took treatment, the

Tribunal has rightly granted compensation in a sum of

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NC: 2024:KHC:17600

Rs.1,75,000/- and it requires no interference. The Tribunal

has granted compensation in a sum of Rs.20,000/- under

the head future medical expenses. Having regard to the

fact that petitioner is required to get the implants

removed, the same is enhanced Rs.40,000/-.

22. Thus in all the petitioner is entitled for total

compensation in a sum of Rs.7,85,680/- as against

Rs.5,17,000/- granted by the Tribunal together with

interest at 6% per annum on the enhanced compensation

as detailed below:

Heads Amount granted Amount granted by the Tribunal by this Court In Rs. In Rs.

   Pain and sufferings                25,000                 55,000
   Nourishment,                           5,000             30,000
   conveyance and
   attendant charges
   Medical expenses                    1,75,000           1,75,000
   Loss of future earning              2,59,000           4,27,680
   capacity due to
   permanent disability
   Loss of amenities                     25,000             25,000
   Loss of earnings                       8,000             33,000
   during laid up period
   Future Medical                        20,000             40,000
   expenses
   TOTAL                               5,17,000           7,85,680
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                                                NC: 2024:KHC:17600

23. In the result, the appeal is allowed in part and

accordingly the following:

ORDER

(i) Appeal is allowed in part.

(ii) Petitioner is entitled for compensation in a sum of Rs.7,85,680/- as against Rs.5,17,000/- granted by the Tribunal together with interest at 6% per annum on the enhanced compensation.

(iii) Respondent No.1 being the insurer is directed to pay the compensation together with interest at 6% per annum on the enhanced compensation from the date of petition till realization (minus the amount already paid/deposited) within a period of six weeks from the date of this order.