Karnataka High Court
Vijay Kumar vs The General Manager on 10 January, 2025
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NC: 2025:KHC:922
MFA No. 6809 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 6809 OF 2018 (MV-I)
BETWEEN:
VIJAY KUMAR,
S/O S VENUGOPAL,
AGED ABOUT 31 YEARS,
R/A NO.732 (119/84),
SUBBREDDY/NANJAPPA BUILDING,
DODDATOGUR, ELECTRONIC CITY,
BENGALURU.
...APPELLANT
(BY SRI SHRIPAD V SHASTRI, ADVOCATE)
AND:
1. THE GENERAL MANAGER,
HDFC ERGO GENERAL INSURANCE CO. LTD.,
EMPIRE ARCADE, NO.356/1, 1ST FLOOR,
OMALUR MAIN ROAD,
Digitally
signed by OPP NEW BUS STAND,
NANDINI R SALEM-4.
Location:
High Court
of Karnataka 2. M/S HIPOWER ELECTRONIC CITY
PHASE-1,
KONNAPPANNA AGRAHARA,
BANGALORE-100.
...RESPONDENTS
(BY SRI D.V VIJAYAKUMAR, ADVOCATE FOR R-1;
NOTICE TO R-2 DISPENSED WITH V/O DATED 17.09.2024)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 24.04.2018 PASSED IN MVC
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MFA No. 6809 of 2018
NO.2651/2015 ON THE FILE OF THE XVIII ADDITIONAL JUDGE,
COURT OF SMALL CAUSES, MACT, BENGALURU, SCCH-4
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE C M JOSHI
ORAL JUDGMENT
Heard the learned counsel for the appellant and
learned counsel for respondent No.1.
2. Being aggrieved by the judgment and award in
MVC.No.2651/2015 passed by the XVIII Additional Judge,
Court of Small Causes, Bengaluru dated 24.04.2018, the
petitioner is before this Court seeking enhancement of
compensation.
3. The factual matrix of the case is that on
11.11.2014 at about 12.30 pm, when the petitioner was
riding his motorcycle bearing No.KA-51-R-5768 near
Krishna Theatre on elevated flyover, a Maruthi Van bearing
No.KA-51-MF-4873 abruptly stopped and therefore, the
petitioner dashed against the said Maruthi Van resulting in
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accident and injuries to him. The petitioner was
immediately shifted to St.John Hospital, Bengaluru,
wherein, he was found to have suffered i) Laceration over
left forearm with muscle and tender injury, ii) Laceration
over the forehead, iii) Left thigh crush injury with
superficial femoral artery injury with thrombosis, iv) Left
ankle open fracture dislocation and v) open lateral
maleolus fracture. He underwent surgery in the hospital
and was in-patient from 11.11.2014 to 24.11.2024 i.e., for
13 days. The petitioner further contended that prior to the
accident, he was working as a Customer Relationship
Officer in a partnership firm-Vriddhi Interiors, earning
Rs.25,000/- per month. Therefore, he sought adequate
compensation by filing claim petition under Section 166 of
the Motor Vehicles Act.
4. The claim petition was opposed by the
respondent No.2-Insurance Company contending that the
petition is bad for non-joinder of necessary party and that
there was no such negligence on the part of the driver of
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the Maruthi Van. It was contended that the petitioner who
was the rider of the motorcycle was not having a driving
licence and there was negligence on his part as he hit the
Maruthi Van on his own. Inter-alia, it was also contended
that the compensation claimed is highly exorbitant,
imaginary and untenable in law.
5. The respondent No.1-Owner of the Maruthi Van
remained ex-parte.
6. On the basis of the above pleadings,
appropriate issues were framed by the Tribunal. The
petitioner was examined as PW.1 and two witnesses were
examined on his behalf as PWs.2 and 3. Exs.P1 to P122
were marked in evidence. No documents or oral evidence
was led on behalf of respondent No.1.
7. After hearing the arguments by both the sides,
the Tribunal awarded a compensation of Rs.3,58,000/-
under following heads:
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AMOUNT
PARTICULARS
(IN RS.)
Pain and suffering 50,000/-
Medical expenses Nil
Loss of income during period of
50,000/-
treatment
Disability 1,63,000/-
Loss of amenities 30,000/-
Towards food and nourishment 15,000/-
Towards attendant charges 25,000/-
Towards Future medical expenses 25,000/-
TOTAL 3,58,000/-
8. Being aggrieved by the said judgment and
award, the petitioner is before this Court in appeal.
9. The arguments by learned counsel appearing
for the appellant and the learned counsel appearing for
respondent No.1 were heard. Respondent No.2 did not
appear despite service of notice. Trial Court Records have
been secured.
10. Learned counsel appearing for the
petitioner/appellant submits that the petitioner was
working as a Customer Relationship Officer in a
partnership firm, of which, PW.3 was one of the partner.
The Tribunal despite there being sufficient evidence to
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show that he was earning Rs.25,000/-, has taken the
income of the petitioner at Rs.10,000/- and therefore,
there is an error in appreciating the evidence. Secondly,
he contends that the petitioner is unable to continue his
job and therefore, the disability stated by the PW.2,
should have been accepted and it is not justified in
reducing the same to 8%. It is further contended that the
compensation awarded under all the heads by the Tribunal
is also on the lower side and therefore, adequate
compensation be awarded.
11. Per contra, learned counsel appearing for
respondent No.1 would submit that the testimony of PW.3
do not conclusively establish the salary of the petitioner at
Rs.25,000/- and therefore, the Tribunal is justified in
treating the income of the petitioner at Rs.10,000/-. He
points out that such income is little higher than the
notional income which is normally taken by the Tribunal.
He further points out that PW.3 has categorically admitted
and volunteered to say that he had paid all the medical
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bills and therefore, the Tribunal rightly has not awarded
any amount towards the medical expenses. He further
points out that Ex.P122 and the testimony of PW.3 would
show that the petitioner has worked with the PW.3 even
after the accident and therefore, the petitioner loosing his
earning capacity and the job is not sustainable in law.
Therefore, he contends that the compensation awarded by
the Tribunal is proper and correct and no interference is
needed by this Court.
12. On perusal of the evidence available on record,
it is evident that the testimony of PW.2, who also happens
to be a Doctor of St. Johns Hospital, where the petitioner
was treated, goes to show that on a thorough
examination, he came to the conclusion that there is
21.54% of the disability to him. The disability on account
of the injuries are stated by him as below:
8. He has 21.54% disability of whole body assessed
according to Guidelines & Gazette Notification, Regd.
No. DL33004/99 (extraordinary) Part II, Sec. 1, June
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13, 2001 Issues by Ministry of Social Justice &v
Empowerment, GOI as follows:
• Loss of movements of (L) forearm - 1.66%
• Loss of movements of (L) hip - 1.89%
• Loss of movements of ankle & subtalar joint- 14.99%
• Pain (interfering with function) - 3.0%
________
Total 21.54%
_______
13. It is pertinent to note that the disability stated
by PW.3 is in respect of the whole body and he had
considered the disabilities of each of the limbs. It is
pertinent to note that the loss of movement of ankle and
subtalar joint alone contributes to 14.99% of the disability.
Therefore, it is evident that major portion of the disability
in respect of the movement of the left lower limb of the
petitioner. Now the question would be whether this could
result in functional disability to the petitioner vis-à-vis his
avocation. Further, it is also relevant to note that
testimony of the PW.2 would show that there is non-union
and he has stated that there is requirement of further
surgeries. Therefore, he has estimated the 'future medical
expenses' at Rs.40,000/-. The overall consideration of the
testimony of PW.2 and the medical records would show
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that the disability is basically on account of non-union of
the fracture of the wounds in the lower limb. Now, when
we juxtapose the above injury as stated by PW.2 in his
testimony, with the avocation of the petitioner that he was
working as Customer Relationship Officer in a private
partnership firm-Vriddhi Interiors which is involved in the
interior works done for the residences and business
establishments, definitely, the movement of the petitioner
on his motorcycle gets affected. In the light of this, this
Court is of the view that the disability of 14.99% as stated
by PW.3 to the lower limb, coupled with the non-union of
the bones would definitely translate into a functional
disability of 14%. This Court cannot shut its eyes to the
testimony of PW.2 who happens to be a Doctor of St.John
Hospital and part of the treating team.
14. It is pertinent to note that PW.3 in his
testimony states that he is taking a salary of Rs.20,000/-
and another partner is taking a salary of Rs.18,000/-. In
the light of these admissions by PW.3 in the cross-
examination, the income of the petitioner having assessed
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at Rs.10,000/- per month by the Tribunal cannot be
interfered with. Therefore, the 'loss of future income' as
calculated by the Tribunal is to be modified. In that view,
the same is calculated as Rs.10,000/- X 12 X 17 X 14% =
Rs.2,85,600/-.
15. The Tribunal has awarded a sum of Rs.30,000/-
under the head of 'loss of amenities in life', which this
Court feels that, needs to be enhanced to Rs.50,000/- on
account of non-union of the fractured bones. The
compensation awarded by Tribunal in the remaining heads
do not require any enhancement.
16. Thus, the petitioner is entitled for the modified
compensation under different heads as below:
AMOUNT
PARTICULARS
(IN RS.)
Pain and suffering 50,000/-
Medical expenses Nil
Loss of income during period of
2,85,600/-
treatment
Disability 1,63,000/-
Loss of amenities 50,000/-
Towards food and nourishment 15,000/-
Towards attendant charges 25,000/-
Towards Future medical expenses 25,000/-
TOTAL 6,13,600/-
Less awarded by Tribunal 3,58,000/-
2,55,600/-
Enhancement
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17. Thus, the petitioner is entitled for enhanced
compensation of Rs.2,55,600/- with interest and
therefore, the appeal deserves to be allowed in part.
Hence, the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award passed by
the Tribunal is modified by awarding a sum of
Rs.2,55,600/- in addition to what has been awarded by
the Tribunal together with interest at 6% p.a. from the
date of petition till its deposit.
(iii) The respondent No.1/Insurance company is
directed to deposit the entire compensation amount within
a period of six weeks from the date of this order.
(iv) Rest of the order of the Tribunal stands
unaltered.
Sd/-
(C M JOSHI)
JUDGE
NR/-
