Sri Mahadevappa @ Mallappa, Vs Sri Thammannappa N C

MR. HUSSAIN S/O. SHARANAPPA, AGE 21 YEARS, OCC: MASON, R/O. NEAR MARAPPA HOUSE, 15TH CROSS, DR. AMBEDKAR NAGARA, CHIKKABOMMASANDRA CROSS, YALAHANKA NEW TOWN, BENGALURU - 560 064.

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(BY SMT. SUNITHA B.H, ADVOCATE FOR SRI. SURESH M. LATUR, ADVOCATE)

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AND:

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…APPELLANT

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SRI. THAMMANNAPPA N. C. S/O. CHIKKA ANJANAPPA NAGADEVANAHALLI, KONAGHATTA POST, KASABA HOBLI, DODDABALLAPURA TALUK, BENGALURU RURAL DISTRICT - 561 203.

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NC: 2026:KHC:26023 MFA No. 6925 of 2016 C/W MFA No. 6926 of 2016

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HC-KAR

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2. THE MANAGER

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UNITED INDIA INSURANCE CO. LTD., 5TH & 6TH FLOOR, KRISHI BHAVAN, NRUPATHUNGA ROAD, HUDSON CIRCLE, BENGALURU - 560 001.

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…RESPONDENTS

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(BY SRI. MALLIKARJUNAREDDY N.A, ADVOCATE FOR SRI. A.N. KRISHNA SWAMY, ADVOCATE FOR R2; SRI. S.A. KHADRI, ADVOCATE FOR R1)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.04.2016 PASSED IN MVC NO.1866/15 ON THE FILE OF THE 3RD ADDITIONAL SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 6926/2016

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BETWEEN:

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SRI. MAHADEVAPPA @ MALLAPPA, S/O MARAPPA, AGE 38 YEARS, OCC: MASON, R/AT NO.255, 'A' SECTION, 15TH CROSS, DR. AMBEDKAR NAGARA, CHIKKABOMMASANDRA CROSS, YALAHANKA NEW TOWN, BENGALURU - 560 064.

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...APPELLANT

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(BY SMT. SUNITHA B.H, ADVOCATE FOR SRI. SURESH M. LATUR, ADVOCATE)

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HC-KAR

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AND:

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SRI. THAMMANNAPPA N.C. S/O CHIKKA ANJANAPPA, NAGADEVANAHALLI, KONAGHATTA POST, KASABA HOBLI, DODDABALLAPURA TALUK BENGALURU RURAL DISTRICT - 561 203.

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THE MANAGER

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UNITED INDIA INSURANCE CO.LTD., 5TH AND 6TH FLOOR, KRISHI BHAVAN, NRUPATHUNGA ROAD, HUDSON CIRCLE, BENGALURU - 560 001.

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...RESPONDENTS

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(BY SRI. S.A. KHADRI, ADVOCATE FOR R1; SRI. A.N. KRISHNA SWAMY, ADVOCATE FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.04.2016 PASSED IN MVC NO.1867/15 ON THE FILE OF THE 3RD ADDITIONAL SENIOR CIVIL JUDGE & MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

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HC-KAR

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ORAL COMMON JUDGMENT

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IN MFA NO.6925/2016

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This appeal is filed by the appellant/claimant under Section 173(1) of Motor Vehicles Act, 1988 challenging the common judgment and award dated 25.04.2016 passed in MVC Nos.1866/2015 and 1867/2015. However, MFA No.6925/2016 is filed against the award passed in MVC No.1866/2015 by the III Additional Senior Civil Judge, Court of Small Causes, Bangalore, seeking enhancement of the compensation.

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Heard the arguments of learned counsel for the appellant and learned counsel for the respondents. The ranks of the parties are retained as per Tribunal for the sake of convenience.

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The petitioner/injured claimant met with an accident on 25.03.2015 and filed the claim petition before the Tribunal for compensation of Rs.10,00,000/-. The Tribunal considering the entire evidence on record granted an amount of Rs.3,20,000/- with interest at the rate of 9% p.a., from the date of filing the petition till the date of deposit. Being aggrieved by the said order, he preferred this appeal and

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HC-KAR

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mainly contended that the Tribunal has awarded meagre compensation under the other heads. The petitioner/injured was aged 20 years and was working as a mason, earning Rs.18,000/- per month. The petitioner sustained disability to the extent of 38% to the right lower limb and 19% to the whole body. But the Tribunal has taken the disability at 12%. Therefore, requested for enhancement of the compensation and also the rate of interest.

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Though the petitioner/injured claimant stated that he was earning Rs.18,000/- per month, he has not filed any income proof. As he met with an accident in the year 2015, his notional income is to be taken as Rs.9,000/- per month, as per the chart prepared by the Karnataka State Legal Services Authority. The petitioner/injured was aged 20 years and the relevant multiplier is '18'. Ex.P.4 is the wound certificate, which shows that the petitioner sustained the following injury:

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"Laceration over right forearm and fracture of right tibia."

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The petitioner examined the doctor as PW.3, who is

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an orthopedic surgeon. He stated that the petitioner had

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HC-KAR

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sustained fracture of right tibia. On examination, he found that there was pain, limping, wasting of (right) thigh and diffuse swelling of (right) leg and foot. As per the recent X-ray, there was united fracture. He assessed the disability of the right lower limb at 38% and that of the whole body at 19%. He further stated that as the petitioner was working as a Mason, it is difficult for him to do any other manual or physical work. This Court finds it reasonable to take 1/3rd of 38% i.e., 13% disability, for the purpose of calculating the loss of future earning capacity. Accordingly, the loss of future earning capacity comes to Rs.2,52,720/- (9,000x12x18x13%). The petitioner/injured was hospitalized as an inpatient for a period of four days. Considering the nature of injuries, period of hospitalization, his occupation and other relevant factors, this Court finds it reasonable to grant an amount of Rs.50,000/- towards pain and suffering, Rs.30,000/- towards loss of amenities and Rs.30,000/- towards transportation, extra nourishment and attendant charges. The petitioner might not have attended any other work at least for a period of three months. Therefore, Rs.27,000/- (9,000x3) is to be granted under the head loss of income during the laid-up period. The

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HC-KAR

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Tribunal has already granted Rs.5,000/- towards medical expenses and Rs.25,000/- towards loss of marriage prospects

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and the said amounts are confirmed.

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Thus in all, compensation awarded by this Court is

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as below:

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Sl.Nos.	Particulars	Amount in Rs.
1.	Towards pain and suffering	50,000/-
2	Towards medical expenses	5,000/-
3	Towards loss of amenities	30,000/-
4	Towards transportation, extra nourishment and attendant charges	30,000/-
5	Towards loss of income during laid up period	27,000/-
6	Towards loss of future earning capacity	2,52,720/-
7	Towards loss of marriage prospectus	25,000/-
	Total	4,19,720/-

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Hence, the appellant-claimant is entitled for a total

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compensation of Rs.4,19,720/- along with interest at the rate of 6% p.a.

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HC-KAR

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In the result, the following order is passed:

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ORDER

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i. The appeal is allowed in part.

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ii. The judgment and award dated 25.04.2016 passed in MVC No.1866/2015 on the file of the III Additional Senior Civil Judge, Court of Small Causes, Bangalore, is modified.

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iii. The claimant is entitled to a sum of Rs.4,19,720/- along with interest at 6% p.a.,

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from the date of petition till the date of realization, instead of Rs.3,20,000/- granted by the tribunal.

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iv. As there is no valid driving licence, the insurance company was exonerated from its liability. But the owner of the vehicle has not paid any compensation amount till today. As this is a case of no driving licence, in view of the law laid down by the Hon’ble Supreme

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Court in Pappu and Ors Vs. Vinod Kumar

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HC-KAR

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Lamba and Another¹ , this Court finds it reasonable to invoke the principle of "pay and recovery." Accordingly, respondent No.2/Insurance Company is directed to deposit a sum of Rs.4,19,720/- along with interest at the rate of 6% per annum within one month from the date of this order.

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v. On such deposit, petitioner is permitted to withdraw the entire amount along with interest accrued on the same.

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vi. The insurance company is at liberty to recover the same from the owner of the vehicle by due process of law.

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IN MFA NO.6926/2016

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This appeal is filed by the appellant/claimant under Section 173(1) of Motor Vehicles Act, 1988 challenging the common judgment and award dated 25.04.2016 passed in MVC Nos.1867/2015 and 1866/2015. However, MFA No.6926/2016 is filed against the award passed in MVC

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1 2018 (3) SCC 308

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HC-KAR

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No.1867/2015 by the III Additional Senior Civil Judge, Court of Small Causes, Bangalore, seeking enhancement of the compensation.

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Heard the arguments of learned counsel for the appellant and learned counsel for the respondents. The rank of the parties are retained as per the Tribunal for the sake of convenience.

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The appellant/injured claimant met with an accident on 25.03.2015 and filed the claim petition before the Tribunal for compensation of Rs.8,00,000/-. The Tribunal considering the entire evidence on record granted an amount of Rs.3,53,700/- with interest at the rate of 9% p.a., from the date of filing of the petition till the date of deposit.

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Being aggrieved by the said award, he preferred this appeal and mainly contended that the Tribunal has awarded meager compensation under all the heads. The appellant/injured was aged 37 years and was working as a mason, earning Rs.20,000/- per month. The petitioner sustained disability to the extent of 62% to the right lower limb and 31% to the whole body. But the Tribunal has taken the

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HC-KAR

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disability at 12%. Therefore, requested for enhancement of the compensation and also the rate of interest.

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Though the appellant/injured stated that he was earning Rs.20,000/- per month, he has not filed any income proof. As he met with an accident in the year 2015, his notional income is to be taken as Rs.9,000/- per month, as per the chart prepared by the Karnataka State Legal Services Authority. The appellant/injured was aged 37 years and the relevant multiplier is '15'. Ex.P.10 is the wound certificate, which shows that the appellant has sustained dislocation of right hip.

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Ex.P.11 is the Discharge Summary and the petitioner examined PW.4 as Orthopedic Surgeon. He stated that there is dislocation of right hip. On examination, he found that the claimant walks with pain and limping (short limb antalgic gait), wasting of the right lower limb is present. Limb is shortened, adducted and internally rotated. His recent x-ray 27946/04-09-2015 shows dislocated (right) hip with arthritic changes of the acetabulum. Shortening and deformed limb of 10% and assessed the disability of right lower limb at 62% and

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HC-KAR

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that the whole body at 31% and further stated that as the appellant was working as mason, it is difficult for him to do any other manual or physical work. Therefore, this Court finds it reasonable to take 1/3^rd of 62% i.e., 21% disability, for the purpose of calculating the 'loss of future earning capacity due to disability'. Accordingly, the 'loss of future earning capacity due to disability' comes to Rs.4,76,280/- (Rs.9,000+ 40% x 12 x 15 x 21%). As the disability is more than 20%, the appellant is entitled for 'future prospects', as per the citation reported in MFA.No.103807/2016 C/w MFA.No.103835/2016 between New India Assurance Company Limited Vs. Abdul S/o Mehaboob Tahasildar and Others , in which it was held

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that if the disability is more than 20% they are entitled for future prospects. The appellant was aged 37 years, therefore he is entitled for 40% towards 'future prospects'.

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The appellant/injured was hospitalized as an inpatient for a period of two days. Considering the nature of injuries, period of hospitalization and other relevant factors, this Court finds it reasonable to grant an amount of Rs.50,000/- 'towards pain and suffering', Rs.30,000/- towards 'loss of amenities' and Rs.30,000/- towards 'transportation, extra

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HC-KAR

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nourishment and attendant charges'. The appellant might not have attended any other work at least for a period of three months. Therefore, Rs.27,000/- (Rs.9,000 x 3 months) is to be granted under the head of 'loss of income during laid-up period'. The Tribunal has already granted Rs.4,700/- towards 'medical expenses' and Rs.20,000/- towards 'future medical expenses' and the said amounts are confirmed.

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Thus in all, compensation awarded by this Court is

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as below:

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Sl.Nos.	Particulars	Amount in Rs.
1.	Towards pain and suffering	50,000/-
2	Towards medical expenses	4,700/-
3	Towards loss of amenities	30,000/-
4	Towards transportation, extra nourishment and attendant charges	30,000/-
5	Towards loss of income during laid up period	27,000/-
6	Towards loss of future medical expenses	20,000/-
	Total	6,37,980/-

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HC-KAR

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Hence, the appellant-claimant is entitled for a total

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compensation of Rs.6,37,980/- along with interest at the rate of 6% p.a.

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In the result, the following order is passed:

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ORDER

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i. The appeal is allowed in part.

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ii. The judgment and award dated 25.04.2016 passed in MVC No.1867/2015 on the file of the III Additional Senior Civil Judge, Court of Small Causes, Bangalore, is modified.

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iii. The claimant is entitled to a sum of Rs.6,37,980/- along with interest at 6% p.a., from the date of petition till the date of realization, instead of Rs.3,53,700/- granted by the tribunal.

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iv. As there is no the valid driving licence, the insurance company was exonerated from its liability. But the owner of the vehicle has not paid any compensation amount till today. As this is a case of no driving licence, in view of

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HC-KAR

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the law laid down by the Hon’ble Supreme Court in Pappu and Ors Vs. Vinod Kumar Lamba and Another² , this Court finds it reasonable to invoke the principle of "pay and recovery." Accordingly, respondent No.2/Insurance Company is directed to deposit a sum of Rs.6,37,980/- along with interest at the rate of 6% per annum within one month from the date of this order.

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v. On such deposit, appellant is permitted to withdraw the entire amount along with interest accrued on the same.

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vi. The insurance company is at liberty to recover the same from the owner of the vehicle by due process of law.

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Sd/(P SREE SUDHA) JUDGE

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AMA,rv List No.: 1 Sl No.: 39

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2 2018 (3) SCC 308

Sri Mahadevappa @ Mallappa, v. Sri Thammannappa N C

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Sri Mahadevappa @ Mallappa, v. Sri Thammannappa N C

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