Partly allowed

Devaraj v. Adarsh

Karnataka HC9 Mar 2022MFA/8303/2017

Case brief

AI extract

What is this about?

In this second appeal under Section 173(1) of the MV Act, the High Court enhanced the compensation awarded by the Tribunal for a motor accident. The Court allowed the appeal partly, increasing the total award from Rs. 2,75,600 to Rs. 4,05,800 including interest.

What did the court decide?

Compensation enhanced to Rs. 4,05,800 with interest at 6% p.a. The insurance company was directed to deposit the amount within six weeks.

Devaraj Vs Adarsh — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF MARCH, 2022

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BEFORE

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THE HON'BLE MS.JUSTICE J.M.KHAZI

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M.F.A.NO.8303/2017 (MV)

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BETWEEN:

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DEVARAJ, AGED ABOUT 31 YEARS, S/O MANJAPPA, R/O BHEEMANERI VILLAGE, SAGARA TALUK, SHIVAMOGGA DISTRICT – 577 401

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… APPELLANT

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(BY SRI. CHIDAMBARA G S, ADVOCATE)

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AND:

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ADARSH, AGED ABOUT 28 YEARS, S/O GURUMURTHY, DRIVER, R/O NITTURU VILLAGE, HOSANAGARA TALUK, SHIVAMOGGA DISTRICT – 577 426

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K.G.BHAT, AGE: MAJOR, S/O NOT KNOWN, R/O DHARMACHAKRA TRUST, No.2, RAMASHRAMA, J.P.ROAD, BENGALURU – 01

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THE MANAGER, UNIVERAL SOMPO GENERAL INSURANCE COMPANY LIMITED, SHIVAMOGGA – 577 201 ...RESPONDENTS

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(BY SRI. B. PRADEEP, ADVOCATE FOR R3; R1 SERVED & UNREPRESENTED; V/O/D 31.05.2019, NOTICE TO R2 IS D/W)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO ALLOW THE APPEAL AND MODIFY THE JUDGMENT AND AWARD DATED: 07.04.2017 PASSED BY THE SENIOR CIVIL JUDGE & J.M.F.C. AND ADDL. MACT-9, SAGAR IN MVC No.310/2014 BY GRANTING ADDITIONAL COMPENSATION OF Rs.14,04,400/- WITH INTEREST.

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THIS MFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is by the petitioner seeking enhancement.

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For the sake of convenience the parties are

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referred to by their ranks before the Tribunal.

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It is the case of the petitioner that on 08.09.2013 at about 07.45 a.m. he was proceeding on Bajaj CT-100 Motor cycle bearing registration No.KA-15/K 468 belonging to his friend from Sagar to Kannuru on Shivamogga-Sagar Road. Near Hosadurga village, respondent No.1 being the driver of tempo traveler bearing registration KA-41-N-3836 (hereinafter referred to as offending vehicle), came in a high speed, in rash or negligent manner and dashed against the motor bike of the petitioner. Due to the impact, petitioner

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sustained grievous injuries. In spite of prolonged treatment he is not cured.

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At the time of accident, he was doing agriculture work and earning Rs.16,000/-p.m. and maintaining his family. Subsequent to the accident he is not able to do the work as he used to and suffering loss of income.

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Respondent No.1 to 3 being the driver, owner and insurer of the offending vehicle are liable to pay the compensation jointly and severally.

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Though duly served with notice and appeared through counsel respondent Nos.1 and 2 did not file written statement.

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Respondent No.3 appeared through counsel and filed written statement denying that accident occurred due to the rash or negligent driving by the respondent No.1. The accident occurred due to the fault of petitioner himself. He is not having any driving license. In the absence of owner and insurer of the motor cycle the petition is bad for non-joinder.

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The compensation claimed is on the higher side and has sought for the dismissal of the petition.

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Based on the pleadings issues are framed by the Tribunal.

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During the enquiry, on behalf of petitioner 2 witnesses are examined including the petitioner and the Doctor as PWs-1 and 2 and Ex-P.1 to 12 are marked. Respondent No.2 has not led any oral evidence, but got marked the photocopy of the insurance policy as Ex-R.1.

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Vide the impugned judgment and award the Tribunal has granted a sum of Rs.2,75,600/- as detailed below:

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Heads	Amount in Rs.
For Pain and sufferings, mental	30,000
agony
For Medical expenses	1,33,600
For travelling and special diet	10,000
For permanent physical disability	1,02,000
TOTAL	2,75,600

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Respondent No.2 has not challenged the impugned

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judgment and award.

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The petitioner is seeking enhancement contending

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that the compensation granted under the various heads is on the lower side. No compensation is awarded under the head loss of income during laid up period and loss of amenities. Though PW.2 has deposed that the total disability is 33.55%, the functional disability is 100%, the Tribunal has erred in taking the disability at 10%. The income taken at Rs.5,000/p.m. is on the lower side.

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On the other hand, the learned counsel for respondent has supported the impugned judgment and award and prays to dismiss the appeal.

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In the light of the specific contentions raised in the appeal memo, it is to be examined whether the compensation granted is just and proper if not, to what extent it calls for interference by this Court.

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Pain and Suffering: Tribunal has granted a compensation in a sum of Rs.30,000/- under this head. However, the evidence placed on record establish that due to

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the accidental injuries petitioner suffered fracture of right femur with galleazi fracture of left fore arm. He has taken treatment as in-patient and undergone surgery. Taking into consideration these aspects, I hold that compensation granted under this head is on the lower side and it requires enhancement by a sum of Rs.10,000/- and therefore petitioner is entitled for compensation in a sum of Rs.40,000/- under the head pain and suffering as against 30,000/- granted by the Tribunal.

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Medical expenses: Based on the medical bills the Tribunal has granted compensation of sum of Rs.1,33,600/and I find no reason to interfere with the same.

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Traveling expenses and Special Diet: Though the petitioner has claimed compensation of sum of Rs.37,000/under this head, taking into consideration the nature of the injuries and period of treatment, the Tribunal has rightly granted compensation in a sum of Rs.10,000/- and I find no reason to interfere with the same.

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Compensation for permanent partial disability: Petitioner has claimed compensation in a sum of Rs.3,50,000/- under this head. The evidence of the Medical Officer prove that the petitioner has sustained functional disability of 20.44% of the right lower limb and 13.11% of the right upper limb. However, considering the evidence placed on record the Tribunal has taken the whole body disability at 10% which is correct and proper. In the absence of the evidence to the contrary, the Tribunal has considered the notional income of the petitioner as Rs.5,000/- p.m. However, since the accident is of the year 2013 as per the Karnataka State Legal Services Authority chart which is based on minimum wages, the notional income is required to be taken at Rs.8,000/-p.m. Since the age of the petitioner is proved to be 28 years the ‘17’ multiplier taken by the Tribunal is correct. Based on these components, the compensation under the head permanent partial disability comes to Rs.1,63,200/- i.e., 8,000 x 12 x 17 x 10%=1,63,200/-. Petitioner is entitled for compensation in a sum of Rs.1,63,200/- under this head as against Rs.1,02,000/- granted by the Tribunal.

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Loss of income during laid up period: The Tribunal has not granted any compensation under this head. Considering the nature of the injuries sustained by the petitioner, it could be held that he was under treatment for a period of three months. At the rate of Rs.8,000/-p.m he is entitled for compensation in a sum of Rs.24,000/- under this head.

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Loss of amenities of life: The Tribunal has not granted any compensation under this head. Taking into consideration the nature of the injuries sustained, the duration of the treatment and the fact of the permanent partial disability suffered by the petitioner, I hold that granting sum of Rs.20,000/- under this head would meet the hands of justice.

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Future medical expenses: The Tribunal has not granted any compensation under this head. Having regard to the nature of the injury sustained, period of treatment, it

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would be appropriate to grant compensation of sum of Rs.15,000/- under this head.

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Thus, in all the petitioner is entitled for total compensation in a sum of Rs.4,05,800/as against Rs.2,75,600/- granted by the Tribunal together with interest

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at 6% p.a as detailed below.

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Heads	Amount granted by the Tribunal In Rs.	Amount granted by this Court In Rs.
Pain and sufferings, mental agony	30,000	40,000
Medical expenses	1,33,600	1,33,600
Travelling and special diet	10,000	10,000
Permanent physical disability	1,02,000	1,63,200
Loss of income during laid up period	-	24,000
Loss of amenities of life	-	20,000
Future medical expenses	-	15,000
TOTAL	2,75,600	4,05,800

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To this extent the impugned judgment and order is

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liable to be modified and accordingly I proceed to pass the following order:

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ORDER

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(i) Appeal is allowed in part.

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(ii) Appellant/petitioner is entitled for

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compensation in a sum of Rs.4,05,800/- as against Rs.2,75,600/granted by the Tribunal, with interest at 6% p.a. from the date of petition till realization (minus the amount already paid/deposited)

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(iii) Respondent No.3 insurance company shall deposit the compensation amount within a period of six weeks from the date of this order.

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(iv) The registry shall transmit the trial Court records along with the copy of the judgment forthwith.

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Sd/JUDGE

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Devaraj v. Adarsh

Case brief

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What did the court decide?

Devaraj v. Adarsh

Case brief

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