Partly allowed

Sri Yogesh v. Sri C Kallesh

Karnataka HC16 Dec 2021MFA/9572/2013

Case brief

AI extract

What is this about?

In this motor vehicle accident claim appeal, the High Court of Karnataka allowed the appeal partly. The court re-calculated the compensation awarded by the tribunal, increasing the loss of earning due to disability, adding awards for future medical expenses, loss of future amenities, and lost income during the laid-up period, resulting in a total enhancement from Rs.1,22,440/- to Rs.2,04,240/-.

What did the court decide?

The appeal is allowed in-part; the impugned judgment is modified; the appellant is entitled for a total compensation of Rs.2,04,240/-; records sent back to the tribunal.

Sri Yogesh Vs Sri C Kallesh — 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.9572 OF 2013 (MV)

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BETWEEN:

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SRI YOGESH S/O THIMMAPPA, AGED ABOUT 23 YEARS, RESIDING AT DEVAPURA KODIHALLY, HOSADURGA TALUK, CHITRADURGA DISTRICT - 577 501.

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...APPELLANT

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(BY SRI. SHIVAKUMARAPPA T.L., ADVOCATE FOR B.M SIDDAPPA)

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AND:

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SRI C KALLESH S/O CHANDRAPPA, AGE: MAJOR, OWNER OF THE MOTORCYCLE NO.KA-18/H-1488, RESIDING AT CHAUANAHALLY, ANNAPURA POST, KADUR TALUK, CHIKKAMAGALUR DISTRICT- 577 501.

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THE BRANCH MANAGER, NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, B.M.COMPLEX, LAXMI BAZAR, CHITRADURGA - 577 501.

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…RESPONDENTS

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(BY SRI S. SRISHAILA , ADVOCATE FOR R2 NOTICE TO R1 IS 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 04.01.2013 PASSED IN MVC NO.321/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT, HOSADURGA, 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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Heard learned counsel for the appellant and learned counsel for respondent No.2 at the stage of admission itself and the matter is finally disposed of.

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This appeal lays challenge to the judgment and award passed by the learned Senior Civil Judge and Additional Motor Accident Claims Tribunal, (for short hereinafter referred to as ‘Tribunal’), Hosadurga in MVC No.321/2010 dated 04.01.2013, wherein the tribunal has awarded a compensation of Rs.1,22,440/- with interest at the rate of 6% p.a. from the date of petition till the date of realisation for the injuries suffered by the claimant.

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The brief case of the appellant/claimant before the tribunal is that on 07.04.2010 at about 8.30 p.m., while claimant was standing near Krishnappa Farm, Devapura,

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Kodihally Village, Hosadurga Taluk alongwith his motor cycle at about 8.30 p.m., at that time, the rider of a motor cycle bearing registration No.KA-18/H-1488 came from Devapura side in rash and negligent manner without observing traffic rules and dashed to the petitioner's motor cycle, due to that impact, the petitioner's motor cycle fell on his right leg and he sustained injury to his right leg. He was admitted to Government Hospital, Hosadurga. Thereafter, he was shifted to Basaveswara Medical College Hospital, Chitradurga for further treatment. Hence, he filed claim petition seeking compensation for the injuries suffered by him. Respondent No.1 owner of the motor cycle appeared and filed objection statement. He denied the contents of the petition as all false and contended that the accident was due to the actionable negligence of the petitioner himself. He further contended that he has insured the vehicle with respondent No.2 and as on the date of the accident, the policy was in force and if at all there is any liability, it is respondent No.2 company which is liable to pay the compensation.

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Respondent No.2Insurance company filed

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objections denying the age, occupation, income and nature of injuries. Learned counsel for respondent No.2 contended that the rider of the said vehicle was not having effective driving licence and therefore, the insurance company is not liable to pay the compensation.

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On the basis of the above pleadings, the

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tribunal framed the following issues:-

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“1. Whether petitioner proves that he sustained injuries in the R.T.A. occurred on 07.04.2010 at about 8.30 p.m. near Krishna Farm, Devapura, Kodihally Village, Hosadurga Taluk, due to rash and negligent manner of riding the motor cycle bearing No.KA-18/H-1488 by its driver?

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2. Whether the petitioner is entitle for compensation, if so, how much and from whom?

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4. What order or award?"

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Before the tribunal, the petitioner got examined

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himself as PW.1 and got marked 80 documents as Exs-P1 to P80. He also got examined one Dr.Ambarish, who has

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issued disability certificate. After hearing both sides, the tribunal passed the impugned judgment which is under challenge before this Court.

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Heard learned counsel for the appellant Sri. Shivakumar T.L. for Sri. B.M. Siddappa and Sri. S. Srishaila, learned counsel for respondent No.2Insurance company. Notice to respondent No.1 is dispensed with.

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I have perused the appeal memo, impugned judgment and records of the case.

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It is not in dispute that the accident occurred due to rash and negligent manner driving of the offending vehicle. Questioning the quantum of compensation awarded, this appeal is filed.

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Learned counsel for the appellant contended that the tribunal has taken the income of the appellant at Rs.3,500/- p.m. which is too meager. Learned counsel further argued that the appellant/claimant is an agriculturist and having income. Learned counsel also argued that though the tribunal has stated that the

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appellant/petitioner has sustained disability to the extent of 35% as per Ex-P67- disability certificate, the tribunal has taken only 10% permanent disability which is not correct. Learned counsel further argued that no compensation is awarded under the head 'loss of amenities' and 'laid up period'. Therefore, he prayed to enhance the compensation under the aforesaid heads.

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Against this, learned counsel for the respondent No.2/insurer argued that the evidence of PW-2 Dr. Ambarish shows that he was not able to say what was the disability to the whole body suffered by the claimant, but it is only disability to particular part. Therefore, learned counsel argued that the tribunal has properly taken 10% disability and it needs no interference. Regarding other aspects, learned counsel for insurer supported the judgment of the tribunal and contended that it needs no interference.

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The wound certificate which is at Ex-P3 shows that there was fracture of right tibia and pain and swelling, tenderness of right leg. According to the Doctor, the injury

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is grievous in nature. The tribunal has awarded a sum of Rs.20,000/- towards 'pain and suffering' which is not disputed by the appellant.

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Regarding the income of the appellant, the tribunal has taken notional income of the appellant at Rs.3,500/- p.m. and calculated the disability. However, in the absence of any income and as the appellant has stated he is doing agriculture, the Court has to take into consideration the notional income. Where there is no proof of income during Lok Adalath at High Courts for the relevant period, the accident in this case has taken place in the year 2010. So as per Lok Adalath chart, the income per month for the relevant year has to be taken at Rs.5,500/p.m. The age of the appellant is shown as '28' years. According to the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another reported in (2009)6 SCC 121, appropriate multiplier that is applicable for the age group between 26-30 years is '17'. The tribunal has rightly taken said multiplier. Accordingly, 'loss of future earning' would be Rs.5,500/- x 12x17x10%=Rs.1,12,200/-.

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Thus, a sum of Rs.1,12,200/- is awarded towards 'loss of earning due to disability'. As far as medical bills are concerned, the appellant has produced OPD medical bills to the extent of Rs.24,040/- which is awarded by the tribunal.

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It is evident that the appellant is stated to be an agriculturist and because of the injury sustained by him, atleast for a period of two months, he may not be able to go to the land and carry out the agricultural operations. He has to engage some other person. Therefore, during the laid up period, the appellant is entitled for a sum of Rs.5,500 x 2= Rs.11,000/- towards 'loss of income during laid up period'. The evidence of the Doctor indicates that he was treated by fixing nails and screws and he was adviced for follow up treatment. In the cross-examination also, he has stated that rod is still there and it has to be removed. Therefore, the appellant requires 'future medical expenses' which is not awarded by the tribunal. Therefore, Rs.10,000/- is awarded under the head 'future medical expenses' which shall not carry any interest. The crossexamination of the Doctor indicates that he is a treated Doctor. Though the fractures are properly united, that

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inconvenience and unhappiness he has to suffer throughout his life. Therefore, under the head 'loss of future amenities', a sum of Rs.20,000/- is awarded. Rest of the compensation awarded appears to be just and proper.

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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 different

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heads of compensation as under:

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Sl. No.	Particulars	Compensation awarded by tribunal in Rs.	Compensation re- determined by this court in Rs.
1.	Towards pain and suffering	20,000/-	20,000/-
2.	Towards loss of earnings due to disability	71,400/-	1,12,200/-
3.	Towards medical expenses	24,040/-	24,040/-
4.	Towards attendant charges	5,000/-	5,000/-
5.	Towards travelling expenses	2,000/-	2,000/-
6.	Towards future medical expenses	-	10,000/-
7.	Loss of future amenities	-	20,000/-
8.	Loss of income during laid up period	-	11,000/-
	Total	Rs.1,22,440/-	Rs.2,04,240/-

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In the result, I pass the following:

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ORDER

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(i) The appeal is allowed-in-part;

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(ii) The impugned judgment and award passed by

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learned Itinerary Senior Civil Judge and Addl. MACT, Hosadurga, having been modified, the appellant is entitled for a total compensation of Rs.2,04,240/- (Rupees Two

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Lakh Four thousand Two Hundred and Forty only) as against Rs.1,22,440/- awarded by the tribunal.

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(iii) The other conditions of the tribunal regarding apportionment and interest remains unaltered.

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(iv) The respondents shall deposit the compensation amount within six weeks from the date of receipt of a certified copy of this order.

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(v) Costs made easy.

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(vi) Sent back the records to the tribunal.

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*mn/-

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Sd/JUDGE

Sri Yogesh v. Sri C Kallesh

Case brief

What is this about?

What did the court decide?

Sri Yogesh v. Sri C Kallesh

Case brief

What is this about?

What did the court decide?

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