Karnataka High Court
B.C. Veereshkumar vs Jakhir Hussain on 5 September, 2024
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NC: 2024:KHC:36352
MFA No. 1062 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 1062 OF 2015 (MV-I)
BETWEEN:
SRI. B.C. VEERESHKUMAR,
S/O B.V. CHANDRASHEKAR,
AGED ABOUT 23 YEARS,
R/O CHALLAKERE TOWN,
PRESENT RESIDING AT
VASAVI SCHOOL ROAD,
CHITRADURGA TALUK - 577 522.
(PETITIONER BEFORE MACT)
...APPELLANT
(BY SRI.VIJAYA M.N., ADVOCATE)
AND:
1. JAKHIR HUSSAIN,
Digitally signed by AGE MAJOR,
PRAJWAL A R/O HOUSE NO.699,
Location: HIGH COURT VPO KHANDAWALI BALLABHAGARH,
OF KARNATAKA FARIDABAD,
STATE OF HARIANA - 585308,
OWNER OF LORRY BEARING
REG NO HR-38-R-2517.
2. THE DIVISIONAL MANAGER,
HDFC ERGO,
GENERAL INSURANCE COMPANY LTD.,
6TH FLOOR, LEELA BUSINESS PARK,
ANDHERI KURLA ROAD,
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MFA No. 1062 of 2015
ANDERI EAST,
MUMBAI - 530 001.
3. THIPPERUDRAPPA,
S/O SHIVANANDAPPA,
R/O BRAMHAGRI VILLAGE,
HIRIYUR TALUK - 572 143,
OWNER OF MAHINDRA MAXIMA
BEARING REG NO-KA-16-B-2783.
4. THE MANGER,
IFFCO TOKIO GENERAL INSURANCE CO.LTD.,
CUSTOMER SERVICE CENTRE,
SRISHANTHI TOWERS,
5TH FLOOR, NO. 141,
3RD MAIN, KASTHURABA NAGARA,
BENGALURU 560 001.
(RESPONDENTS NO.1 TO 4 BEFORE MACT.)
...RESPONDENTS
(BY SRI. O.MAHESH., ADVOCATE FOR R2, VIDE ORDER DATED
04.07.2016 NOTICE TO RESPONDENTS NO.1, 3 AND 4 IS
DISPENSED WITH.)
THIS MFA IS FILED U/S 173(1) OF MV ACT PRAYING TO
MODIFY THE JUDGMENT AND AWARD, PASSED BY THE
PRINCIPAL SENIOR CIVIL JUDGE, CJM AND MACT-III, AT
CHITRADURGA IN MVC NO.341/2012 DATED 01.01.2015,
ALLOW THE APPEAL AND ENHANCE THE COMPENSATION IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 1062 of 2015
CORAM: T.G.SHIVASHANKARE GOWDA
ORAL JUDGMENT
In this appeal, the petitioner is seeking enhancement
of compensation.
2. For the sake of convenience, the parties herein
are referred as per their ranking before the Tribunal.
3. Undisputedly there was an accident on
23.08.2011, at about 11.15 p.m at NH 13 near Basappana
Hatti Village, on Chithradurga Doddabommanahalli road
involving a light goods vehicle Reg.No.KA-16-B-2783
driven by the petitioner, with a lorry bearing No.HR-R-
2517. Due to the accident the petitioner sustained fracture
injuries and was under hospitalization at various hospital.
After taking treatment he has approached the Tribunal for
grant of compensation of Rs.25,00,000/-. The claim was
opposed by the Insurance Company of the lorry. The
Tribunal after taking the evidence and hearing both the
parties by the impugned judgment, awarded compensation
of Rs.11,36,400/- with interest at 9% per annum. Pleading
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inadequacy and seeking enhancement the petitioner is
before this Court.
4. Heard the argument of Smt. Vidya M.N., learned
counsel for the petitioner and Sri. O.Mahesh., learned
counsel for the Insurance Company of the lorry.
5. It is contended by the learned counsel for the
petitioner that, the petitioner has suffered multiple
fractures of femur, humerus, chest, rib, wrist, patella and
he was under hospitalization for morethan three months,
at four different hospitals. Medical evidence is placed to
explain that the petitioner has suffered 55% right lower
limb disability, 19% of right upper limb disability. The
Tribunal has taken the disability at only 35%. The
petitioner being a driver, the fractures has affected his
future earning hence the Tribunal ought to have taken
more than 50% of functional disability. Inspite of evidence
is placed that the petitioner was earning Rs.7,000/- per
month, the Tribunal has taken the income at Rs.6,000/-
which has to be taken at Rs.7,000/-. Compensation
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awarded at different heads is inadequate and no
compensation is awarded towards 'loss of life expectancy'
and sought for enhancement.
6. Per contra learned counsel for the Insurance
Company has contended that after taking the treatment
the petitioner became normal he has resumed his work
under the owner and there is no loss of future income. The
loss of future income awarded by the Tribunal adding 50%
of future income for a private employee is not proper, rate
of interest awarded at 9% per annum is on the higher
side. The petitioner since not surrendered the driving
license, he cannot be awarded with 'loss of future income'.
The Tribunal has liberally and excessively awarded the
compensation and he supported the impugned judgment,
with a request to modify the rate of interest from 9% to
6% per annum.
7. I gave my anxious consideration to the arguments
addressed by both the sides and perused the materials on
record.
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8. Since the accident is not in dispute, the Insurance
Company already satisfied the award of the Tribunal, the
only point is regarding quantum of compensation.
9. The medical records shows that at four different
hospitals the petitioner was under hospitalization for 88
days, he has traveled to many hospitals for followup. He
has been attended by an attendant, money spent towards
food and nourishment and also conveyance. He has to be
awarded adequate compensation.
10. Medical records also shows that the petitioner
has suffered fracture of neck of right femur, fracture of
right humerus, fracture of right 6th rib, fracture of right
wrist and fracture of right patella. Medical evidence is
placed through PW.2, the Orthopedic Surgeon who is not a
treated Doctor. He is only an assessing Doctor, whose
evidence point out that the petitioner has suffered lower
limb disability of 55%, upper limb disability of 19% to the
right side of the body. The Tribunal has considered the
functional disability at 35%, having regard to the age of
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the petitioner at 21 years, driving the mini goods vehicle,
the functional disability assessed by the Tribunal is just
and proper.
11. The petitioner has placed the evidence to explain
that he was paid Rs.7,000/- per month by his owner.
RW.1- Sri. S.Thipperudrappa is the owner of the vehicle
and his evidence though speaks that he was paid
Rs.7,000/- per month, the petitioner has not surrendered
his driving license post the accident. Hence, even if the
petitioner is taken as a person with no proof of income in
the year 2011, he will earn not less then Rs.6,500/- per
month. Hence, the notional income of the petitioner has to
be taken at Rs.6,500/-.
12. The medical bills produced at Rs.2,19,000/-. On
careful perusal of the medical bills, there are duplicate bills
to an extent of Rs.59,625/-. If the same is excluded, the
medical bills comes to Rs.1,59,375/- instead of
Rs.1,19,951/- awarded by the Tribunal. The petitioner was
laid up for six months for the multiple fractures, he has to
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be compensated for six months laid up at Rs.39,000/-.
The petitioner suffered five fractures. Therefore, he has to
be awarded with pain and sufferings at Rs.80,000/-,
Medical expenses of Rs.1,59,375/-, loss of income during
laid up period at Rs.39,000/-, attendant charges, food and
nourishment Rs.20,000/- each, Conveyance allowance at
Rs.25,000/-, loss of amenities and discomfort at
Rs.80,000/-. Implants were used for treating the fractured
bones for removal of the same Tribunal awarded
Rs.30,000/- as future medical expenses and the petitioner
suffered multiple fracture, loss of marriage prospects is at
Rs.75,000/- awarded by the Tribunal is kept intact. As
regarding future loss of income is concerned as discussed
above Rs.6,500/- is the notional income, for the age of 21
future prospects shall be 40% it comes to Rs.2,600/-, then
loss of future income will be (9100 x 12 x 18 x 35%)
comes to Rs.6,87,960/-. If all put together total
compensation comes to Rs.12,16,336/- as against
Rs.11,36,400/-, thereby enhancement of Rs.79,935/-
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rounded off to Rs.80,000/-. It is the compensation
assessed under facts and circumstances of the case.
13. As regarding rate of interest is concerned as
rightly contended by the learned counsel for the Insurance
Company, no banks will offer interest at 9% per annum at
relevant point of time. Since the Insurance Company is not
under appeal, it is proper not to interfere in the discretion
of the Tribunal. Insofar as the enhanced compensation the
petitioner is to be awarded interest at 6% per annum.
14. In view of above discussion, the appeal merits
consideration, in the result, the following:
ORDER
i) Appeal is allowed-in-part;
ii) Impugned judgment and award is modified;
iii) The petitioner would be entitled to enhanced
compensation of Rs.80,000/- with interest of
6% p.a., from the date of petition till the date
of deposit;
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iv) The Insurance Company shall deposit the
compensation along with interest within eight
weeks from today;
SD/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
RMS
