Partly allowed

T. Palakshappa v. Manjunath

Karnataka HC16 Dec 2021MFA/10231/2013

Case brief

AI extract

What is this about?

The High Court enhanced the compensation awarded by the Tribunal in a motor accident case. While dismissing permanent disability claims, the Court increased amounts for pain and suffering, loss of amenities, food/nutrition, and loss of income during treatment, raising the total award.

What did the court decide?

Increased total compensation to Rs.1,14,312/- and directed Respondent No.3 to deposit the amount.

T. Palakshappa Vs Manjunath — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 16^TH DAY OF DECEMBER 2021

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BEFORE

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THE HON'BLE MR.JUSTICE P.N.DESAI

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M.F.A. NO.10231 OF 2013 (MV)

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BETWEEN:

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T. PALAKSHAPPA S/O LATE THIMMAIAH, AGED ABOUT 61 YEARS, RETIRED A.S.I., NOW R/AT R.S.KRUPA, BEHIND SARGOD RICE MILL, JAYANAGARA EXTENSION, CHIKMAGALUR-577101. ...APPELLANT

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(BY SRI RAVI KUMAR N.R. & K.S.GANESHA, ADVOCATES FOR APPELLANT) AND:

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MANJUNATH S/O ASHWATH, AGED ABOUT 33 YEARS, R/O ARVIND NAGARA, BASAVANAHALLI EXTN., CHIKMAGALUR-577101.

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M/S. ASHOK LEYLAND FINANCE LTD., NO.402, RISHMOND PLAZA, III FLOOR, NO.5, RICHMOND ROAD, BANGALORE-560025.

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THE BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, CHIKMAGALUR-577101. …RESPONDENTS

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(BY SMT. GEETHA RAJ, ADVOCATE FOR R3; SRI. B.M.KUSHALAPPA, ADVOCATE FOR R2; V/O/DTD:26.11.2021 NOTICE TO R1 DISPENSED WITH)

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---THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED: 08.06.2012 PASSED IN MVC NO.180/2007 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE, MEMBER, MACT, CHIKMAGALUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the petitioner challenging the judgment and award passed by the Court of Additional District Judge and Member and Additional Motor Accident Claims Tribunal, (for short hereinafter referred to as ‘Tribunal’), Hiriyur, in MVC No.180/2007 dated 08.06.2012, wherein the claim petition came to be allowed in part by awarding compensation of Rs.81,812/- with interest at 6% p.a.

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The appellant/petitioner filed a petition before the tribunal claiming compensation for the injuries sustained by him in the accident which occurred on 03.10.2006.

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Brief case of the petitioner before the tribunal is that on 03.10.2006 at about 10:45 a.m.,

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when the petitioner was proceeding near market road cross with one Puttaraju on the left side of K.M.Road, at that time, the 1^st respondent being a driver of the Bolero Vehicle bearing No.KA-03-MA-7255, drove it in a rash and negligent manner and dashed to the petitioner, as a result, the petitioner sustained grievous injuries on his right great toe and other parts of the body. Immediately, he was shifted to District Hospital, Chikmagalur wherein he took a treatment as inpatient. He contended that due to the actionable negligence on the part of the driver of the offending vehicle, the accident occurred. Hence, he filed a claim petition before the tribunal claiming compensation for a sum of Rs.3,00,000/- with interest.

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After service of notice, the 2^nd respondent was placed exparte. 1^st respondent appeared through his counsel but did not file objections. Respondent No.3-insurance company –appeared and filed written statement. It is contended by respondent No.3 that the offending vehicle was duly insured with respondent No.3, but they have denied the other contentions of the

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petitioner as false and contended that the petitioner be put to strict proof of his contentions. It is further contended that respondent No.1 was not having valid driving license at the time of accident. With these main contentions, prayed to dismiss the claim petition.

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After considering the pleadings and

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contentions of the parties, the tribunal framed the following issues:

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“1. Whether the petitioner proves that on 03.10.2006 at about 10.45 a.m., near market road cross, K.M.Road, Chikmagalur, he sustained personal injuries in the motor vehicle accident that took place due to rash and negligent act of the respondent No.1 the driver of the Mahindra Bolero bearing No.KA-03-MA-7255 and belongs to respondent No.2 and insured with respondent No.3?

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2. Whether the petitioner is entitled for compensation? And if so, at what rate? And from whom?

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3. What order?"

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Before the tribunal, the petitioner himself got examined as PW.1, and got marked fifteen documents as Ex.P1 to P15 consisting of FIR, complaint, mahazar, wound certificate, discharge certificate, bank letter, salary certificate, memos, prescriptions and medical bills, disability certificate and x-ray. On behalf of respondents, insurance company produced insurance policy which was got marked as Ex.R1.

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After hearing the arguments, the tribunal awarded compensation of Rs.81,812/- with interest at the rate of 6% per annum. Being not satisfied with the quantum of compensation, the petitioner has preferred this appeal.

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Heard Sri. Ravi Kumar N.R., learned counsel for the appellant, Sri. B.M.Kushalappa, learned counsel for respondent No.2 and Smt.Geetja Raj, learned counsel for respondent No.3. Issuance of notice to respondent No.1 is dispensed with vide order dated 26.11.2021.

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Learned counsel for the appellant mainly argued that the tribunal has taken the disability of the petitioner at 5% for the whole body which is very much on the lower side. Learned counsel further argued that there is a fracture, but only some of Rs.5,000/- is awarded by the tribunal under the head pain and sufferings which is also very meager. Further, the tribunal has awarded very meager amount towards attendant charges, food and nutrition and no compensation is awarded towards loss of amenities. Learned counsel further argued that the income of the petitioner considered by the tribunal for awarding compensation is very much on the lower side, as he was working as ASI at the time of accident and drawing Rs.11,865/- as gross salary and Rs.9,502/- as net salary and he will be getting more salary in future. Therefore, the tribunal is wrong in awarding compensation under the head loss of permanent disability. Hence, on meager amount the tribunal ought to have taken his monthly income considering his avocation. Therefore, learned counsel argued to modify

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the compensation awarded by the tribunal and prays for enhancement of compensation.

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Against this learned counsel for the insurance company supported the impugned judgment and award. Hence, prayed to justify the compensation awarded by the tribunal.

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I have considered the arguments of learned counsel for the parties, perused the appeal memo, impugned judgment and award passed by the tribunal and also records placed before this Court.

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The points arise for my consideration are as

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under:

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I. Whether the compensation award by the tribunal is just and proper?

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II. Whether it needs any interference by this Court?

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It is not in dispute that the accident occurred due to rash and negligent driving of the 1^st respondent who is the driver of the Mahindra Bolero vehicle bearing Reg. No.KA-03-MA-7255 in question.

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The said vehicle belongs to the 2^nd respondent and insured with the 3^rd respondent and insurance policy was in force at the time of accident. These aspects are not disputed. The claimant/PW1 is admittedly, working as ASI in the Traffic Police Station when the accident took place. He sustained injuries which are shown in Ex.P4-wound certificate as under:

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i. Lacerated wound over the right side of great toe 1½'x ½

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ii. Compound fracture of distal phalanx of right great toe.

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Doctor has opined that injury No.2 is grievous in nature. The appellant also produced discharge summary-Ex.P5 issued by the Holy cross hospital, Chikmagalur. It is also evident that the claimant was getting Rs.11,865/- as gross salary and Rs.9,502/- as net salary at the time of incident. Looking into the nature of injury sustained and occupation of the injured, I am of the considered view that the petitioner is not entitled for compensation under the head permanent disability which is awarded by the Tribunal, The insurance company has not challenged it. However,

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the wound certificate-Ex.P4 shows that there was a compound fracture of distal phalanz of right great toe. The pain and sufferings awarded by the tribunal is only Rs.5,000/-. In my considered view the same is to be enhanced. Therefore, it is enhanced to Rs.15,000/instead of Rs 5,000/- towards pain and sufferings.

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The claimant was working as ASI. The very nature of his duty requires wearing of shoes and that fracture must have caused discomfort and unhappiness and he must have suffered the same through out his service. But the tribunal has not awarded compensation under the head loss of amenities or future unhappiness. Therefore, the claimant is entitled for a sum of Rs.15,000/under the head loss of amenities. Regarding food and nourishment, the tribunal has awarded only Rs.5,000/- which is very meager. Hence, the same is to be enhanced as he requires attendant for sometime during hospitalization. He also requires traveling expenses. Therefore, considering the nature of injury and period of hospitalization, the compensation under the head food and nourishment requires to be

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enhanced. Hence, Rs.10,000/- is awarded under the said head. The tribunal has awarded Rs.16,500/- under the head loss of income during treatment period. Considering his net salary i.e., Rs.9,502/-, as he requires minimum two months leave during healing period, this court is of considered view that the said amount requires to be enhanced. Therefore, Rs.19,000/- is awarded under the head loss of income during laid up period.

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In the result, considering the nature of injuries, evidence of the appellant, the compensation awarded by the tribunal need to be re-judged and recalculated under the different heads of compensation as under:

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Sl. No.	Particulars	Compensation awarded by the tribunal	Compensation re- determined by this court
1.	Towards pain and suffering	Rs.5,000/-	Rs.15,000/-
2.	Towards medical expenses	Rs.3,106/-	Rs.3,106/-
3.	Towards loss of earning during treatment period	Rs.16,500/-	Rs.19,000/-

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4.	Towards food and nutrition	Rs.5,000/-	Rs.10,000/-
5.	Loss ofamenities	----	Rs.15,000/-
6.	Permanent disability	Rs.52,206/-	Rs.52,206/-
	Total	Rs. 81,812/-	Rs.1,14,312/-

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17. Regarding liability, the tribunal has fastened

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the liability on respondent Nos. 1 and 2. Learned counsel for the appellant has stated the tribunal has dismissed the petition against the 3^rd respondent insurance company holding that the driver had no valid driving license at the time of accident. In the case of

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Pappuu and Others Vs. Vinod Kumar Lamba And Another , (2018) 3 SCC 208 wherein the Hon'ble Apex Court held that even there is no driving license, the Insurance Company has to pay compensation amount and recover the same from the owner when the policy was in-force as on the date of accident. Learned counsel for respondent No.3 stated that the owner has already deposited the compensation amount awarded by the tribunal. The insurance company has to pay remaining amount and recover the same from the 2^nd respondent

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who is owner of the offending vehicle. Further, the appellant is not entitled for the interest on the enhanced compensation for the delayed period. In the result, I pass the following:

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ORDER

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(i) The appeal is partly allowed; (ii) The impugned judgment and award passed by Additional District Judge and Member, Addl. MACT, Chikmagalur, having been modified, the petitioner is entitled for total compensation of Rs.1,14,312/- (Rupees One lakh fourteen thousand three hundred and twelve only).

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(iii) The 3^rd respondent shall deposits the compensation amount within six weeks from the date of receipt of a certified copy of this order.

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(iv) Regarding rate of interest and other order passed by the tribunal is kept in tact.

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(v) Costs made easy.

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(vi) Sent back the records to the tribunal.

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Sd/- JUDGE

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JS/-

T. Palakshappa v. Manjunath

Case brief

What is this about?

What did the court decide?

T. Palakshappa v. Manjunath

Case brief

What is this about?

What did the court decide?

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