Partly allowed

Shabbeer v. Rajappa. H

Karnataka HC8 Dec 2022MFA/8159/2019

Case brief

AI extract

What is this about?

This is a miscellaneous first appeal against a Motor Vehicle Accident compensation award. The High Court enhanced the compensation amount awarded by the Tribunal by reassessing loss of future earning capacity, pain and sufferings, loss of amenities, and loss of income during the laid-up period based on guidelines and injury seriousness.

What did the court decide?

Compensation enhanced by Rs. 57,200/- with interest at 6% p.a. to be deposited by the Insurance Company.

Shabbeer Vs Rajappa. H — Motor Accident Claims | Karnataka HC (2022)

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MFA No. 8159 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF DECEMBER, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR. JUSTICE C. M. JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 8159 OF 2019 (MV-I)

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BETWEEN:

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SHABBEER

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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S/O BHAVA SAB, AGE 55 YEARS, R/O BASAVESHWARA BADAVANE MALEBENNURU VILLAGE HARIHAR TALUK DAVANAGERE DISTRICT - 577 601.

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…APPELLANT

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(BY SRI.MAHESH.R. UPPIN FOR SRI N.PRAVEEN KUMAR, ADVOCATES)

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AND:

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RAJAPPA. H S/O HANUMANTHAPPA, AGE 41 YEARS, DRIVER OF THE BUS BEARING REG.NO.KA-20-B-4737 R/O HOSAHALLI VILLAGE, HONNALIL TALUK DAVANAGERE DISTRICT - 577 217.

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K.B. SIDDAPPA

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MFA No. 8159 of 2019

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S/O BENAKAPPA, AGE MAJOR, OWNER OF THE BUS BEARING REG.NO.KA-20-B-4737 R/O BENAKANAHALLI VILLAGE, HONNALLI TALUK DAVANAGERE DISTRICT - 577 217.

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THE BRANCH MANAGER ORIENTAL INSURANCE COMPANY LTD., VINAYAKA COMPLEX, 1ST CROSS, GARDEN AREA, SHIVAMOGGA - 577 201.

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…RESPONDENTS

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(BY SRI.R.GOVINDARAJAN ADVOCATE FOR R3; NOTICE TO R1 IS DISPENSED WITH V/O DTD.06.3.2021 NOTICE TO R2 IS DISPENSED WITH V/O DTD.17.10.2022 NOTICE AGAINST LR'S OF R2 IS DISPENDED WITH)

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THIS MFA FILED IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED. 15.04.2019, PASSED IN MVC NO.327/2016, ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., AND MACT, HARIHARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, C. M. JOSHI J,. DELIVERED THE FOLLOWING:

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JUDGMENT

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By the consent of learned counsel on both the sides, the matter is taken up for final disposal though it is posted for Admission.

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MFA No. 8159 of 2019

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Being aggrieved by the judgment and award dated 15-4-2019 passed in MVC No.327/2016 by the learned Senior Civil Judge and JMFC and MACT, Harihara, whereby the claim petition came to be allowed in part and a sum of Rs.3,42,347/with interest has been awarded as compensation, the petitioner/injured claimant is before this court in appeal.

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For the sake of convenience, the parties are referred to with their ranks before the Tribunal.

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The brief facts of the case are as under:

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That on 09.11.2015 at about 5.30 p.m., the claimant, being rider of the motorcycle bearing registration No.KA-17/EN-0240, after attending engagement at Sasvehalli, was returning to Mallebennur and when they were near Kammargatti curve on Basavapattan road, the driver of the bus bearing registration No.KA-20/B-4737 (hereinafter referred to as “offending bus”), drove his bus in a rash and negligent manner and dashed against the motorcycle of the claimant causing grievous injuries to him on his head, face, left shoulder, left arm, stomach and other parts of the body. Immediately he was taken to the Government Hospital, Honnalli in an ambulance from where he was shifted to SSIMS

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MFA No. 8159 of 2019

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Hospital, Davanagere for further treatment and was admitted as an inpatient for a period of 90 days. For his treatment, the claimant has spent nearly a sum of Rs.5,00,000/- towards medical expenses. It is further contended that at the time of the accident, the claimant was aged 72 years. It is further contended that prior to the accident the claimant was a contractor and an agriculturist earning monthly income of Rs.25,000/-. It is further contended that due to the accidental injuries he has lost his earning capacity. It is further contended that the accident has taken place due to the rash and negligent driving of the offending bus, as such the respondents who are the owner and insurer of the bus are jointly and severally liable to pay compensation to the petitioners.

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On issuance of summons by the Tribunal, respondents appeared through their counsel before the Tribunal and respondent Nos. 1 and 2 filed their statement of objections and Insurance Company has field its statement of objections separately.

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Respondents 1 and 2 being driver and owner of the offending vehicle contended that the petition is not maintainable either in law or on facts and liable to be dismissed. It is contended

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MFA No. 8159 of 2019

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that at the time of the accident, the driver of the bus was holding a valid and effective driving licence to drive it and the bus was covered with insurance, which was in force. Therefore, the respondent No.3-insurance company is liable to pay the compensation and prayed to dismiss the petition against them.

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Respondent No.3-Insurance Company has filed its separate objections in which it has contended that the owner of the offending vehicle handed over his bus to the driver, who did not possess a valid licence and badge to drive it. It has further contended that the accident did not occur due to the rash and negligent driving by the driver of the bus but it took place on account of rash and negligent riding of the motorcycle by its rider itself, who did not possess a valid and effective driving licence to ride a motorcycle. It has further contended that the at the relevant point of time, the owner of the bus did not have permit to run his bus at the alleged spot of the incident and therefore, the respondent No.3-Insurance Company is not liable to pay any compensation. Hence, prayed to dismiss the petition.

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On the above pleadings and contentions of both the parties, the Tribunal framed necessary issues for its consideration.

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MFA No. 8159 of 2019

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Before the Tribunal, petitioner got examined himself as PW1 and examined the Doctor as PW4 and got marked documents as per Exs.P1 to P29. The respondents did not lead any oral evidence however, got marked a copy of policy of insurance as Ex.R1.

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The Tribunal after hearing the parties and considering the oral and documentary evidence available on file, proceeded to allow the petition in part and awarded a sum of Rs.3,42,347/together with interest under different heads as below:

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Loss of future earning capacity	Rs. 57,600/-
Pain and sufferings	Rs. 30,000/-
Loss of amenities	Rs. 20,000/-
Medical expenses	Rs.1,82,747/-
Food nourishment and attendant charges	Rs. 16,000/-
Towards future medical expenses	Rs. 20,000/-
Loss of income during laid up period from	Rs. 16,000/-
09-11-2015 to 29-11-2015 and from 05- 01-2016 to 06-01-2016
Total	Rs.3,42,347/-

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Being aggrieved by the said judgment and award, the claimant has presented this appeal seeking enhancement.

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The fact that there was an accident involving the bus driven and owned by respondent No.1 and 2 and insured by respondent No.3 is not in dispute. Obviously, the charge sheet was

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MFA No. 8159 of 2019

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filed against the driver of the bus and no fault was found by the investigating agency as against the rider of the motorcycle. The driver was also found to be possessing a valid driving licence. The only point urged before this Court is concerning the quantum of compensation. The petitioner-appellant claims that he was a contractor, aged 72 years and earning Rs.25,000/- per month. There is absolutely no material to show the said income of the petitioner. Therefore, the Tribunal has considered his notional income at Rs.8,000/- per month.

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The guidelines issued by KSLSA concerning the settlement of the cases before the Lok-Adalath are in general consonance with the Minimum Wages Act and therefore, there is no reason to consider the notional income of the claimant at a lesser amount than such guidelines. The guidelines indicate that the notional income for the year 2015 are Rs.9,000/- per month.

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The claimant-appellant had sustained head injury with fracture of occipital bone and Grade-III liver injury, Grade-III splenic injury with hypovolemic shock. Obviously, these visceral injuries have been cured and it would not result in a permanent disability affecting the functional capabilities of the appellant. We

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MFA No. 8159 of 2019

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do not find any reason to interfere regarding the functional disability assessed by the Tribunal. It has considered the functional disability of 12% even though the physical disability as stated by PW4 at 35% concerning the limb. Therefore, we refrain from interfering with the functional disability assessed by the Tribunal.

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In view of the same, the loss of future earning capacity is calculated as Rs.9000 x 12 x 5 x 12% = Rs.64,800/-.

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So far as the compensation under the head of pain and suffering is concerned, the sum of Rs.30,000/- awarded by the Tribunal appears to be on the lower side and considering the nature of the injuries we enhance the same to Rs.50,000/-.

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So far as the loss of amenities is concerned, the Tribunal has awarded the sum of Rs.20,000/- appears to be on the lower side and we enhance the same to Rs.30,000/-.

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It is evident that there was several visceral injuries and therefore, the appellant had taken treatment at SSIMS Hospital, Davanagere. Hence, considering the age of the claimant vis-à-vis nature of the injuries, it would be proper to enhance the

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MFA No. 8159 of 2019

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compensation awarded under the head of food, nourishment and attendant charges to Rs.25,000/-.

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Insofar as the compensation under the head of loss of income during the laid up period is concerned, it can safely be said that the petitioner was unable to resume his work at least for a period of three months and as such, a sum of Rs.27,000/- has to be awarded to him.

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We do not find any reason to interfere with the compensation awarded by the Tribunal in respect of medical expenses and future medical expenses.

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Thus, the compensation is reassessed as below:

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Loss of future earning capacity	Rs. 64,800/-
Pain and sufferings	Rs. 50,000/-
Loss of amenities	Rs. 30,000/-
Medical expenses	Rs.1,82,747/-
Food nourishment and attendant charges	Rs. 25,000/-
Towards future medical expenses	Rs. 20,000/-
Loss of income during laid up period from 09-11-2015 to 29-11-2015 and from 05- 01-2016 to 06-01-2016	Rs. 27,000/-
Total	Rs.3,99,547/-
Less: awarded by the Tribunal	Rs.3,42,347/-
Enhancement	Rs. 57,200/-

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10 -

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MFA No. 8159 of 2019

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Thus, we propose to award a sum of Rs.57,200/together with interest at 6% p.a. in addition to what has been awarded by the Tribunal. Hence, we 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 dated 15-04-2019 passed in MVC No.327/2016 by the Tribunal is modified awarding enhanced compensation of Rs.57,200/- with interest at 6% p.a. from the date of petition till its deposit.

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(iii) The conditions of apportionment and deposit as ordered by the Tribunal remain unaltered.

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(iv) Insurance Company is directed to deposit the

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compensation amount with interest within four weeks from the date of receipt of the copy of this order.

Sd/JUDGE

Sd/JUDGE

tsn*

List No.: 2 Sl No.: 14

Shabbeer v. Rajappa. H

Case brief

What is this about?

What did the court decide?

Shabbeer v. Rajappa. H

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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