Karnataka High Court
Sri Tarakesh S/O Hanumanthappa ... vs Smt. Lakkamma W/O Late Basappa K on 30 May, 2024
-1-
NC: 2024:KHC-D:7217
MFA No. 103738 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO.103738/2022 (MV-I)
BETWEEN:
SRI. TARAKESH S/O. HANUMANTHAPPA ABBIGERI,
AGE: 37 YEARS, OCC: PHOTO GRAPHER WORK,
R/O. 327, 2ND CROSS, 2ND MAIN, K. H. B. COLONY,
BASAVESHWARA NAGARA, BENGALURU,
NOW @ CHOLAMARADESHWARA NAGAR,
2ND CROSS, RANEBENNUR, DIST: HAVERI.
...APPELLANT
(BY SRI. CHANDRASHEKHAR M. HOSAMANI, ADVOCATE)
AND:
1. SMT. LAKKAMMA W/O. LATE BASAPPA K,
AGE: 38 YEARS, OCC: BUSINESS,
R/O. KENCHIKOPPA VILLAGE,
TQ: HONNALI-577201, DIST: DAVANAGERE.
Digitally signed
by MANJANNA
2. THE LEGAL CLAIMS MANAGER,
E IFFCO TOKIO GENERAL INSURANCE CO. LTD,
Location: HIGH
COURT OF SUDEV PLAZA, 3RD FLOOR, OPP. LAXMI TEMPLE,
KARNATAKA
DAJIBAN PETH, HUBBALLI-580020.
...RESPONDENTS
(BY SRI. M. Y. KATAGI AND
SMT. NAGARATNA Y. NAIK, ADV. FOR R2;
NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 11.04.2022
PASSED IN MVC NO.389/2020 ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, RANEBENNUR, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
-2-
NC: 2024:KHC-D:7217
MFA No. 103738 of 2022
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel for the appellant and
respondent on admission. With the consent of learned
counsel for the parties, the matter is taken up for final
disposal at the admission stage itself.
2. This appeal is filed by the claimant seeking
enhancement of compensation awarded by the II
Additional Senior Civil Judge & AMACT, Ranebennur ("the
Tribunal" for short).
3. For the sake of convenience, the parties are
referred to as per their ranking referred to in the claim
petition before the Tribunal.
4. Heard learned counsel appearing for the
claimant and learned counsel appearing for respondent
No.2/Insurance Company. Perused the judgment and
award of the Tribunal.
NC: 2024:KHC-D:7217
5. There is no dispute regarding the injuries
sustained by the claimant in a road traffic accident that
was occurred on 31.12.2019, when the claimant was
proceeding on his motorcycle bearing registration
No.KA.15/W-9033 to Shikaripura from Shivamogga along
with his wife. At the same time at about 9.45 p.m., when
the claimant came near Vidyanagar of Esooru Village of
Shikaripura Taluk, a T.T. unit bearing registration
No.KA.17/TC-4773 & KA.17/TA-5299, driven by its drivers
came in a rash and negligent manner with high speed and
dashed to the motorcycle. Thus, the claimant and his wife
sustained injuries. Therefore, the claimant was shifted to
the Government Hospital at Shikaripura for treatment and
thereafter he was shifted to Mc-Gann Hospital,
Shivamogga for further treatment. Where he was
diagnosed with X-ray, scan and other medical
examinations and the doctor has conducted surgical
operation for the fractures sustained by the claimant.
NC: 2024:KHC-D:7217
6. Considering the oral evidence of PWs.1 & 2 and
RWs.1 & 2 and the documents produced at Exs.P.1 to P.20
and Exs.R.1 to R.8, the Tribunal has awarded a sum of
Rs.2,72,080/- as compensation to the claimant. Being
aggrieved by the same, the claimant is before this Court
seeking enhancement.
7. Learned counsel for the appellant/claimant
submits that, the Tribunal has failed to consider the
injuries sustained by the claimant and the amount that
was spent towards medical treatment. The Tribunal has
taken the disability at 7% to the whole body, which is on
the lower side. In fact, the Tribunal ought to have
considered the disability at 20%, as the claimant suffered
permanent physical disability. Further the compensation
awarded by the Tribunal on all the heads are not
reasonable and hence, he prays to allow the appeal.
8. Learned counsel appearing for respondent
No.2/Insurance Company submits that, the Tribunal
considering the medical evidence as well as oral evidence
NC: 2024:KHC-D:7217
and other aspects of the matter has awarded the
compensation which is exorbitant and higher side. Further
the claimant was not holding valid and effective driving
licence to ride the motorcycle as on the date of accident
and he was raiding motorcycle in the middle of the road
and hence, the accident occurred in the middle of the
road, hence the contributory negligence has to be fasted
at 50% on the claimant. But the Tribunal has considered
his negligence at 35%, which is to be increased to 50%,
thus, respondent No.2/Insurance Company is liable to pay
compensation to the claimant at 50% only. Hence, he
prayed to dismiss the appeal.
9. The point that arises for consideration in this
appeal is :
Whether the compensation awarded by the
Tribunal is just and reasonable or does it call for
enhancement or for reduction?
10. In order to substantiate this aspect, learned
counsel for respondent No.2/Insurance Company has
relied on Exs.R.1 to R.8. As per the insurance policy, the
NC: 2024:KHC-D:7217
same is valid as on the date of accident and the offending
vehicle stands in the name of respondent No.1. The driver
of the offending vehicle was holding valid and effective
driving licence as on the date of accident. However, the
claimant was not possessing any valid and effective driving
licence. It shows that, the claimant also contributed
negligence to some extent.
11. Considering the material available on record, if
75% liability is fastened on the Insurance Company and
25% contributory negligence is fastened on the claimant,
then, it would be meet the ends of justice. Hence,
respondent No.2/Insurance Company is liable to pay 75%
of the compensation to the claimant.
12. After hearing the learned counsel for the parties
and after perusing the judgment and award of the
Tribunal, this Court is of the opinion that the compensation
awarded by the Tribunal is not just and reasonable, it is on
the lower side and hence it is required to be enhanced.
NC: 2024:KHC-D:7217
13. As per Ex.P.6-Wound Certificate, the claimant
has sustained swelling and other injury over right leg and
fracture of both bones and the said injuries are grievous in
nature.
14. As per the opinion of the doctor injury Nos.1 &
2 are grievous in nature. The claimant was initially treated
at Government Hospital, Shikaripura and later he was
shifted to Mc-Gann Hospital, Shivamogga and he was
treated there as inpatient from 01.01.2020 to 25.01.2020.
The injuries sustained and treatment taken by the
claimant is also supported by oral evidence of the doctor-
PW.2.
15. PW.2-Dr.Mahantesh who is the Orthopedic
Surgeon has assessed the disability of claimant at 45%
but the Tribunal has considered disability only at 7%,
which is on lower side. If the disability is taken at 15%,
then it would meet the ends of justice.
16. As per Ex.P.12-Aadhaar Card, the age of the
claimant was taken as 35 years as on the date of accident.
NC: 2024:KHC-D:7217
Hence, the multiplier applicable would be 16 as per the
decision of the Supreme Court in the case of Sarla Verma
Vs. Delhi Transport Corporation1 case. If the disability
is assessed at 15% to the whole body, the loss of future
income due to disability it comes to Rs.3,81,600/-
(13,250 X 12 X 16 X 15/100 = 3,81,600/-.
17. The Tribunal awarded a sum of Rs.20,000/-
towards pain and suffering. It is settled law that for one
grievous injury, the claimant is entitled to receive a sum of
Rs.40,000/- and additional two simple injuries he is
entitled for a sum of Rs.10,000/-. Hence, in all the
claimant is entitled for compensation of Rs.50,000/-
under the head of pain and suffering.
18. The Tribunal has awarded a sum of Rs.6,000/-,
Rs.5,000/- and Rs.5,000/- under the head of Attendance
Charges, Conveyance Charges, and Towards Food, diet
and nourishment respectively, which is not reasonable
2009 ACJ 1298
NC: 2024:KHC-D:7217
one. Hence an additional compensation of Rs.5,000/- is
awarded this head.
19. The tribunal has awarded a sum of Rs.5,000/-
under the head of loss of amenities, which is not just and
reasonable. Hence, an additional sum of Rs.25,000/- is
awarded under this head.
20. The Tribunal has awarded a sum of
Rs.53,000/- under the head of loss of income during laid
up period for a period of four months considering the
nature of injuries sustained by the claimant, which is
reasonable one and hence no interference is called for in
this regard.
21. Thus in all, the claimant is entitled to receive
compensation on the following heads.
Compensation awarded
Sl.
Description by
No.
Tribunal This Court
1 Loss of future income 1,78,080 3,81,600
2 Pain and sufferings 20,000 50,000
3 Attendant charges,
Conveyance Charges &
towards Food, Diet & 16,000 20,000
- 10 -
NC: 2024:KHC-D:7217
Nourishment.
4 Loss of amenities 5,000 30,000
5 Loss of income during
laid up period for four
months 53,000 53,000
Total 2,72,080 5,34,600
Enhanced by this Court 2,62.520
22. Therefore, the claimant is entitled to receive
total compensation of Rs.5,34,600/- as against the
compensation of Rs.2,72,080/- awarded by the Tribunal.
Accordingly, I pass the following;
ORDER
i) This appeal is allowed in part.
ii) The judgment and award dated 11.04.2022
passed in MVC.No.389/2020 by the II
Additional Senior Civil Judge & MACT,
Ranebennur is hereby modified to the extent
stated herein above.
iii) The claimant is entitled for compensation at
75% out of Rs.5,34,600/- as against the
compensation of Rs.2,72,080/- awarded by the
Tribunal with interest at the rate of 6% per
annum on the enhanced compensation of
Rs.2,62,500/- from the date of the claim
- 11 -
NC: 2024:KHC-D:7217
petition, till the date of its realization. The
claimant is contributory negligence at 25%, and
hence, he is entitled for 75% of total
compensation.
iv) Respondent No.2/Insurance Company is
directed to deposit 75% of the compensation
with interest within a period of eight weeks
from the date of receipt of copy of this
judgment.
v) Out of the additional compensation, the
Tribunal is directed to disburse the entire
compensation to the claimant on proper
identification.
No order as to costs
Sd/-
JUDGE
EM/ct-an
