Full Judgment
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2024 BEFORE THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO. 3208 OF 2022 (MV-I) BETWEEN: MUSTAQUE SAYED S/O. ABDUL SHAFFI SAYED, NOW AGED ABOUT 54 YEARS, R/AT NO. 28, WARD NO. 18, SHARAB MUNISHAMANNA LAYOUT, HOSAKOTE, BENGALURU RURAL. …APPELLANT (BY SRI.RANGEGOWDA N R.,ADVOCATE) AND:
1. SURESH KUMAR S/O. LATE AKKALAPPA, MAJOR, R/AT FARM HOUSE, RMS COONY, BHATTARHALLI, VIRGO NAGAR POST, BENGALURU -560 049. Digitally signed 2. RELIANCE GENERAL INSURANCE COMPANY LTD., by GAVRIBIDANUR UNNATI ARACADE, 5/111, SUBRAMANYA
GUPTA AND 6/112, 1ST FLOOR, SREENATH 1ST BLOCK, Location: HIGH DR. RAJKUMAR ROAD,COURT OF KARNATAKA RAJAJINAGAR, BENGALURU -560 010. …RESPONDENTS (BY SRI.H.S.LINGARAJ .,ADVOCATE FOR R-2; NOTICE TO R-1 IS DISPENSED WITH V.O.D 15.03.2024) -2- THIS MFA IS FILED U/S 173(1) OF MV ACT AGASINT THE
JUDGMENT AND AWARD DATED 1.1.2022 PASSED IN MVC
NO.5968/2019 ON THE FILE OF THE II ADDITIONAL JUDGE AND ACMM, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITON FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellant - claimant challenging the judgment & award dated 1st January 2022 passed in MVC No.5968/2019 on the file of the II Additional Judge and ACMM, Court of Small Causes, Bengaluru (for short 'the Tribunal). This appeal is founded on the premise of inadequate and meager compensation awarded by the Tribunal.
2. Parties to the appeal shall be referred to as per their status before the Tribunal.
3. Brief facts of the case are as under: -3- On 23.7.2019 the claimant was riding motorcycle bearing registration No.KA-53-EX-0305 in order to deliver parcels to the customers as he was working as courier
boy. When he was riding in front of Jana Jeevan Apartment, on Kithaganuru-Maragondahalli road, near Halehalli, Bidarahalli hobli, Bengaluru, another motorcycle bearing registration No.KA-43-U-669 came from behind in the rash and negligent manner and in a high speed and dashed against the motorcycle of the clamant, due to which the claimant suffered serious injuries and he was taken to Health Plus hospital, T.C. Palya, Bengaluru, where he was admitted as in-patient and underwent surgery. Due to the injuries sustained and permanent physical disability suffered the claimant filed a claim petition seeking compensation.
3.1 On service of notice, Respondent Nos.1 and 2 filed separate written statements denying the averments made in the claim petition including age, avocation, income and negligence attributed against driver of the -4- offending motorcycle and sought for dismissal of the claim petition. 3.2 Based on the pleadings, the Tribunal framed the relevant issues for consideration. 3.3 In order to substantiate the issues and establish the case, the claimant examined PWs.1 to 3 and got marked Ex.P1 to Ex.P19. The respondents did not lead evidence nor produced any documents in support of their case. 3.4 On the basis of the material evidence, both oral and documentary and after hearing learned counsel for the parties, the Tribunal awarded total compensation of Rs.4,35,622/- alongwith interest at 6% per annum and directed the respondent No.2/insurer to deposit the compensation amount within three months. 3.5 Being aggrieved by the meager and inadequate compensation awarded by the Tribunal, the claimant is before this Court seeking enhancement of compensation. -5-
4. It is the vehement contention of learned counsel
for the appellant that the income of the appellant assessed by the Tribunal is on the lower side and the compensation awarded under different heads is not in accordance with the material on record. Therefore, he seeks to allow the appeal and enhance the compensation.
5. Per contra, learned counsel representing the insurance company contends that there is no error, illegality or perversity in the impugned judgment and
award passed by the Tribunal. He further contends that the Tribunal awarded just and reasonable compensation under all heads, in accordance with the material evidence, both oral and documentary and the same does not call for interference.
6. Having heard the learned counsel for the parties
and perused the material on record, it is seen that the claimant has produced the documents as per Exs.P1 to P19, out of which, Ex.P1 to Ex.P7 are the Police records, which clearly depict registration of the FIR and laying of -6- charge sheet against rider of the offending motorcycle and same has not been challenged or controverted. Therefore, the tribunal rightly attributed the negligence against the rider of the offending motorcycle bearing registration No.KA-43-U-669. Ex.P8 to Ex.P19 are the medical records, which clearly depict the injuries sustained and the expenditure incurred by the claimant towards medical treatment etc.,
7. Now coming to the age, avocation and income of
the claimant, though the claimant pleaded that he was working as Courier Boy earning Rs.30,000/- per month, no material is placed before the Court with regard to the same and proof of income. In the absence of the same, the Tribunal has taken the income of the claimant to be Rs.13,000/- per month, whereas the Legal Services Authority chart prescribes the notional income of Rs.14,000/- per month for the accident of the year 2019. Accordingly, the same is taken as income for computation in the present case as against Rs.13,000/- taken by the -7- Tribunal. The claimant was aged 51 years as on the date of accident and the appropriate multiplier would be '11', which is rightly applied by the tribunal and the same does not call for interference.
8. The doctor has been examined as PW.3, who has opined disability to an extent of 53% to the right lower limb and 18% to the whole body. However, the Tribunal
taken the disability at 12% for computation of compensation under the head of loss of future earnings. On appreciation of evidence of the doctor and considering the age, avocation and nature of injuries sustained by the claimant, I deem it appropriate to assess the functional disability of the claimant at 15% to the whole body.
9. In view of the above, loss of future earnings would be Rs.2,77,200/- (Rs.14,000 x 12 x 11 x 15%).
10. The tribunal awarded Rs.30,000/- towards pain and suffering. which does not call for interference and the same is retained. -8-
11. The Tribunal awarded Rs.1,43,622/- towards medical expenses on the basis of the actual bills produced by the claimant, which does not call for interference.
12. The tribunal awarded Rs.10,000/- towards future medical expenses, which does not call for interference and the same is retained.
13. The tribunal awarded Rs.10,000/- towards food, nourishment and attendant charges, which does not call for interference and the same is retained.
14. The Tribunal awarded Rs.26,000/- towards loss
of income during treatment period. I am in agreement with the learned counsel for the appellant that the same is on the lower side. Considering the magnitude of injuries suffered by the claimant, atleast three months is required to recuperate and get back to normal day to day activities. In view of this Court enhancing the income to Rs.14,000/- per month, Rs.42,000/- (Rs.14,000 x 3) is awarded under this head.
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15. The tribunal awarded Rs.20,000/- towards loss of amenities. However, this Court deems it appropriate to award additional amount of Rs.25,000/-. In all, Rs.45,000/- is awarded under this head.
16. In view of the above, the claimant would be
entitled to a total compensation of Rs.5,57,822/- as against Rs.4,35,622/- awarded by the Tribunal, as mentioned in the table below: Sl. Head of compensation Amount of No. compensation awarded
1 Loss of future earnings Rs.2,77,200-00 2 Pain and sufferings Rs. 30,000-00 3 Medical expenses Rs.1,43,622-00 4 Future medical expenses Rs. 10,000-00 5 Food, nourishment and Rs. 10,000-00
attendant charges 6 Loss of income during Rs. 42,000-00 treatment period 7 Loss of amenities Rs. 45,000-00 Total Rs.5,57,822-00
17. Accordingly, I pass the following: - 10 -
ORDER
i) The appeal is allowed in part; ii) The impugned Judgment & Award dated 1st January 2022 passed by the Tribunal in MVC No.5968/2019, is modified. iii) The appellant/claimant would be entitled to compensation of Rs.5,57,822/- (Rupees five lakhs fifty-seven thousand eight hundred and twenty-two only) as against Rs.4,35,622/- awarded by the Tribunal alongwith interest at 6% per annum. iv) The enhanced compensation amount shall be paid with interest at 6% per annum by the respondent no.2/insurer within a period of four weeks from the date of receipt of copy of this judgment; v) The entire compensation amount shall be released in favour of the appellant-claimant as - 11 - per the terms of the tribunal upon proper identification. vi) All other terms and conditions stipulated by the Tribunal shall stand intact. Sd/- JUDGE GSS List No.: 1 Sl No.: 56