Full Judgment
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024 BEFORE THE HON'BLE MR JUSTICE K.NATARAJAN MISCELLANEOUS FIRST APPEAL NO. 6 OF 2023 (MV-I) BETWEEN: BASAVANNA S/O PUTTABASAPPA, AGED ABOUT 69 YEARS, R/AT UMMATHUR VILLAGE, CHAMARAJANAGAR TALUK AND DISTRICT - 571 441. …APPELLANT (BY SRI. SREENIVASAN M Y., ADVOCATE) AND:
1. T. BASAVARAJ S/O THIMMAYYA, MAJOR, R/AT NO.333 NEAR RASHMI GAS AGENCIES, MYSORE ROAD, OPP. RR NAGAR, BANGALORE - 560 098.
2. THE BRANCH MANAGER
UNITED INDIA INSURANCE CO LTD., Digitally signed by NO.305, ATCHAM MANSION, VEDAVATHI A K SOUTHERN EXTENSION, KOLLEGALA, Location: High Court of Karnataka CHAMARAJANAGARA - 571 440.
…RESPONDENTS (BY SRI. M.U.POONACHA, ADVOCATE FOR R2; VIDE ORDER DATED 9/01/2023, NOTICE TO R1 IS DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.09.2022 PASSED IN MVC NO.289/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND C.J.M, MACT, CHAMARAJANAGAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. -2-
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/claimant under Section 173(1) of Motor Vehicles Act, 1988 (for short hereinafter referred to as MV Act) challenging the
judgment and award dated 14.09.2022 passed in
MVC No.289/2019 passed by the Senior Civil Judge and C.J.M, MACT, Chamarajanagar (for short hereinafter referred to as 'Tribunal') for seeking enhancement of compensation.
2. Heard the arguments of the learned counsel for the appellant and learned counsel for respondent No.2- Insurance Company. Issuing notice to respondent No.1 is hereby dispensed with.
3. The appellant was petitioner and the respondents were respondents before the Trial Court. The -3- status of the parties before the Tribunal is retained for the sake of convenience.
4. The case of the petitioner is that the petitioner
filed petition under Section 166 of Motor Vehicles Act (for short ‘M.V. Act’) for seeking compensation for the injury sustained by him in the road traffic accident. It is alleged that on 09-11-2016 at 10.45 p.m., when he was attending marriage reception at Mysuru and was returning to his village in the bus bearing No.KA-34-4388 which was driven by the driver in a rash and negligent manner at high speed so as to endanger human life and when the bus was going near Maradihundi village gate on Mysuru Suthuru road, Nanjangudu taluk, Mysuru district, the driver of the said bus took the turn in the same speed, due to which the bus turtled to left side of the road and the
accident was taken place. He was taken to hospital and has spent lot of money towards the hospitalisation, due to the injury he suffered disability and fracture of C6 and C7. Hence, prayed for compensation. -4-
5. On receipt of the summons, the respondent No.2 appeared and filed a statement of objection by denying all the allegations made by the petitioner. Hence, prayed for dismissing the petition.
6. On the basis of pleadings, the tribunal framed the following issues for consideration:
1. Whether the petitioner proves that
he has sustained grievous injuries due to actionable negligence on the part of driver of the offending vehicle bearing No.KA-34- 4388 on 09.11.2016 at about 10.45 P. Maradihundi village gate on Mysuru Suthuru road, Nanjangudu Taluk, Mysuru District ?
2. Whether petitioner is entitled for compensation? If so, How much?
3. What order or award?
7. On behalf of the petitioner, he himself was examined as P.W.1. and got marked documents from Exs.P1 to P8. The doctor was examined through court commissioner as CW1 and the documents from Ex.C1 to C3 were marked. No evidence was lead by the -5- respondent. After hearing the arguments, the tribunal answered issue No.1 in affirmative and issue No.2 in the partly affirmative. Accordingly, granted compensation of Rs.2,47,099/-.
8. Learned counsel for the petitioner/appellant
submits that the award of compensation regarding disability considering only 20%, even though the doctor found 35% of the disability to the whole body. The pain
and suffering also given was less, loss of laid-up period also is Rs.1,100/- which is very meagre. The loss of amenities is also very less. No award towards food and nourishment. Hence, prayed for enhancing on various
heads.
9. Per contra, learned counsel for the respondent
No.2/Insurance Company objected the petition and supported the judgment and award passed by the tribunal and contended that the amount of calculation made by the tribunal is correct. Hence, prayed for dismissing the petition. -6-
10. Having heard the arguments, perused the records, the accident in question is not in dispute, due to which the petitioner sustained injury and the fracture to the vertebrae C6 and C7. The doctor opined there was fractured injuries and the disability of 25% and 10% both stands totally comes to 35%. Whereas the tribunal has
considered 20% to the whole body. However, the petitioner himself examined and he has stated that there was disability of 35% but the doctor has opined there is 25% disability in respect of his memory, which was reduced along with giddiness and imbalance and was unable to do regular work. It is pertinent to note, if the memory power is reduced and is suffering from giddiness and imbalance to the mental status, the question of himself giving evidence before the court and himself subjecting to cross examination does not arise. Therefore, I am of the view, the contention taken by the petitioner that the disability is more than 35% cannot be acceptable.
-7- Therefore, trial court rightly considered 20% disability to the whole body.
11. As regards to income tribunal considered
Rs.9,625/-. As per the notional income recognized by the Karnataka State Legal Services Authority, an income of Rs.9,500/- p.m. to be considered for the accidents occurred during 2016. But the tribunal considered Rs.9625/-, Therefore there is no need to modify the same. Hence, if the income of the injured is considered as Rs.9625/- multiplied into 12 months and further multiplied to 7 multiplier x 20% of disability is considered which is as under; Rs.9625/- x 12 x 7 x 20% = Rs.1,61,700/- is granted towards loss of future earning capacity.
12. As regards to pain and suffering the tribunal awarded Rs.25,000/- but the petitioner suffered injury as well as fracture to the back C6 and C7, vertebra. Such being the case, there is a grievous injury the petitioner is -8- entitled for Rs.50,000/- towards pain and suffering as against Rs.25,000 awarded by the tribunal.
13. As regards to the loss of laid up charges about 2 months laid up charges shall be awarded and if 2 months x Rs.9,625 is considered it will be Rs.19,250/- towards loss of laid up period.
14. As regards to the medical expenses of Rs. 24,299/- and it is based upon the documents, hence the same is just and proper.
15. The Loss of amenities for Rs.35,000/- has been awarded and looking to the facts and circumstances of the case, I propose to enhance loss of amenities to Rs.50,000/- from Rs.35,000/-.
16. The tribunal also not awarded any amount towards food and nourishment etc. The petitioner was hospitalized, treated as inpatient spent towards some amount for food, nourishment, attendant charges -9- therefore I propose to award atleast Rs.10,000/- towards food and nourishment charges.
17. The appellant is entitled for the compensation as under;
Particulars Amount in Rs. Pain and suffering 50,000 Loss of laid up chares 19,250 Medical expenses 24,299 Loss of future amenities 50,000 Food nourishment etc., 10,000 Loss of future income 1,61,700 Total 3,15,249 3,15,250
18. Accordingly, I pass the following:
ORDER
i. The appeal is allowed in part. ii. The judgment of the tribunal dated passed in 14.09.2022 passed in MVC No.289/2019 passed by the Senior Civil Judge and C.J.M, MACT, Chamarajanagar, is hereby modified. - 10 - iii. The claimant is entitled to a total compensation for a sum of Rs.3,15,250/- along with interest at 6% p.a., instead of Rs.2,47,099/- granted by the tribunal. iv. The enhanced compensation amount shall be paid by
the respondent-Insurance Company with interest @ 6% per annum, excluding the future medical expenses, within a period of two months from the date of receipt of a copy of this order. v. The enhanced amount of compensation to be released to the claimant. vi. Registry is directed to return the Trial Court records
to the Tribunal, along with certified copy of the order
passed by this Court forthwith without any delay and vii. Draw award accordingly. Sd/- JUDGE AKV List No.: 1 Sl No.: 51 CT:SK