Karnataka High Court
Sri.Shantkumar vs The Managing Director on 28 May, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:7083-DB
MFA No. 103531 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.103531 OF 2016 (MV-I)
BETWEEN:
SRI SHANTKUMAR,
S/O. CHINNAKOTTAYYA TALAPATI,
AGE: 22 YEARS, OCC: CLEANER, NOW NIL,
R/O: PADMATTIPALLI, GAJJULKOND MARKPURAM,
DIST: PRAKASHAM-523315.
- APPELLANT
(BY SRI HARISH S.MAIGUR, ADVOCATE)
AND:
THE MANAGING DIRECTOR,
N.E.K.R.T.C. AND SELF INSURANCE FUND,
BALLARI, BALLARI DIVISION,
DIST: BALLARI-583101.
- RESPONDENT
(BY SRI SHIVAKUMAR S.BADAWADAGI, ADVOCATE)
Digitally signed
by SAROJA
HANGARAKI THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
Location: HIGH
COURT OF SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD
KARNATAKA DATED 28.09.2016 PASSED IN MVC NO.375/2015 ON THE FILE OF
THE II-ADDITIONAL SENIOR CIVIL JUDGE, DHARWAD, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION & ETC.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR FINAL
HEARING, THIS DAY, G BASAVARAJA, J., DELIVERED THE
FOLLOWING:
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NC: 2024:KHC-D:7083-DB
MFA No. 103531 of 2016
JUDGMENT
The appellant/claimant is before this Court dissatisfied
with the quantum of compensation awarded under judgment
and award dated 28.09.2016 in M.V.C. No. 375/2015 on the file
of the learned II Addl. Senior Civil Judge, Dharwad (for short
'Tribunal') praying for enhancement of compensation.
2. Heard Sri Harish S. Maigur, learned counsel for the
appellant/claimant and Sri Shivakumar S. Badawadagi, learned
counsel for respondent/insurer and perused appeal papers
along with impugned judgment and award.
3. Appellant/claimant filed claim petition under Section
166(1) of the Motor Vehicles Act claiming compensation for the
injuries sustained in the road traffic accident that occurred on
15.03.2015 involving the offending bus bearing registration
No.KA-34-F-1224.
4. On service of notice, respondent appeared through its
counsel and filed objections statement wherein it is specifically
contended that the accident had occurred due to the negligence
of the petitioner himself. Hence, the respondent is not liable to
pay compensation. However, the respondent has paid interim
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compensation of Rs.2,000/- to the claimant and the same is
liable to be deducted if any compensation is awarded to the
claimant.
5. To substantiate the case of the claimant, two witnesses
were examined as PWs.1 and 2 and got marked 14 documents
as Exs.P.1 to P.14. Respondent examined two witnesses as
RW1 and RW2 and got marked documents as per Exs.R.1 to
R.3. The Tribunal on assessing the entire material on record,
awarded a total compensation of Rs.2,01,440/- with interest at
8% p.a. from the date of petition till deposit, on the following
heads:
1. Pain, Shock & Suffering 40,000.00
2. Loss of amenities 10,000.00
3. Loss of income during laid up period 14,000.00
4. Attendant's charges, extra diet and 10,000.00
conveyance
5. Medical expenses 26,720.00
6. Compensation towards loss of future 90,720.00
income
7. Compensation towards future medical 10,000.00
expenses
Total 2,01,440.00
Not being satisfied with the quantum of compensation, claimant
is before this Court seeking for enhancement of compensation.
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6. Learned counsel for the appellant/claimant contended
that the Tribunal has not considered the grievous injuries
suffered by the claimant and also the fact that he was inpatient
during treatment. The assessment of disability at 6% to the
whole body is also on the lower side. So also, the income of
the claimant assessed by the Tribunal is also on the lower side.
Hence, he prays for enhancement of compensation.
7. On the other hand, learned counsel for the respondent
has submitted that the award of the Tribunal is just and proper
and there is no scope for interference. Hence, he prays for
dismissal of the appeal.
8. Having heard the learned counsel for the parties and on
perusal of appeal papers, the points that would arise for
consideration are:
1) Whether the claimant would be entitled for
enhanced compensation in the facts and circumstances of
the case?
2) What order?
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9. Our answers to the above points are as under:
Point no.1 : Partly in the affirmative
Point no.2 : As per final order
REASONS
10. Learned counsel for the appellant has submitted his
argument that the Tribunal has not considered the medical
records and x-rays issued by Dr. S.R. Ramanagoudar Hospital
which clearly establishes the fact that the petitioner has
sustained fracture of right shaft and left condylar, which are
grievous in nature. PW2-Dr. Srikant Ramanagoudar,
Orthopedician, who is the treated Doctor of the petitioner has
deposed that petitioner has sustained fracture of right shaft
femur and fracture of left condylar. He undergone surgical
fixing of fracture of right shaft femur. Ex.P.12-disability
certificate reveals that the Doctor assessed disability of the
petitioner at 15% of right limb and 20% on left limb. But the
Tribunal has assessed disability to the whole body of the
petitioner at 6% which is not proper and correct and sought for
consideration of disability of the petitioner at 15%.
11. After examining the material placed on record and
considering the nature of injuries and disability certificate-
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Ex.P.12 issued by PW-2, we are of the opinion that it is just and
proper to assess disability at 11% to the whole body. The
Tribunal has assessed notional income of the claimant at
Rs.7,000/- per month instead of Rs.8,000/- per month as per
the chart issued by the Karnataka State Legal Services
Authority. Thus, the appellant/claimant would be entitled for
compensation towards loss of future income at Rs.1,90,080/-
(Rs.8,000/- x 12 x 18 x 11/100) as against Rs.90,720/-
awarded by the Tribunal.
12. Considering the injuries, period of treatment taken as
indoor patient, pain and suffering undergone, we are of the
view that it is just and proper to award compensation of
Rs.60,000/- as against Rs.40,000/- towards pain, shock &
suffering; Rs.50,000/- as against Rs.10,000/- towards loss of
amenities; and a sum of Rs.1,90,080/- as against Rs.90,720/-
towards loss of future income. The compensation awarded by
the Tribunal towards attendant's charges, extra diet &
conveyance, medical expenses and future medical expenses
remain unaltered. Since the income of the claimant is assessed
at Rs.8,000/- per month as against Rs.7,000/- assessed by the
Tribunal, the compensation on the head of loss of income
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during laid up period would be Rs.16,000/-. Thus the
compensation for which the claimant is entitled to is as under:
1. Pain, Shock & Suffering 60,000.00
2. Loss of amenities 50,000.00
3. Loss of income during laid up period 16,000.00
4. Attendant's charges, extra diet and 10,000.00
conveyance (as awarded by Tribunal)
5. Medical expenses (as awarded by 26,720.00
Tribunal)
6. Compensation towards loss of future 1,90,080.00
income
7. Compensation towards future medical 10,000.00
expenses (as awarded by Tribunal)
Total 3,62,800.00
13. Thus, the claimant/injured is entitled to total
compensation of Rs.3,60,800/- as against Rs.2,01,440/-
awarded by the Tribunal.
14. In the result, we pass the following order.
ORDER
a) The appeal is allowed in part.
b) The impugned judgment and awarded passed by the
Tribunal is modified to an extent that the claimant
would be entitled to total compensation of
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Rs.3,62,800/- as against Rs.2,01,440/- awarded by
the Tribunal.
c) The enhanced compensation amount shall carry
interest at the rate of 6% per annum from the date of
petition till date of payment;
d) Respondent-insurer shall deposit the enhanced
compensation amount along with accrued interest
before the Tribunal within a period of six weeks from
the date of receipt of certified copy of this judgment.
e) On such deposit, the said amount shall be apportioned
in favour of the claimant as per the award of the
Tribunal.
f) Registry to transmit the records to the tribunal
forthwith.
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
BVV
