Sri Manjunathaiah @ Manjunatha Vs Sri Chidanandaswamy

SRI. MANJUNATH.N @ MANJAPPA.N S/O NAGAPPA, AGED ABOUT 26 YEARS, AGRICULTURIST AND WORKER IN PROVISION STORE, R/AT HALEBATHI VILLAGE, DAVANAGERE TALUK & DISTRICT - 577 512.

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…APPELLANT

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(BY SRI. MOHAMMED THOUSHID., ADVOCATE FOR SRI. MANJUNATH.G.KANDEKAR., ADVOCATE)

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AND:

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Digitally signed by SUMATHY KANNAN Location: HIGH COURT OF KARNTAKA

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SRI. CHIDANANDASWAMY S/O MALLAIAH MULEMATH, AGED ABOUT 35 YEARS, R/AT DOOR NO. 342, HARLAPURA VILLAGE, HARIHARA TALUK, DAVANAGERE DISTRICT - 577 601.

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SRI. PRAVEEN KUMAR.M.B. S/O BALARAM SHETTY,

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1

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NC: 2026:KHC:32130-DB MFA No. 8138 of 2018 C/W MFA No. 8140 of 2018

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HC-KAR

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AGED ABOUT 38 YEARS, OWNER OF THE VEHICLE BEARING REG NO.KA-17-N-0956.

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THE GENERAL MANAGER, THE RELIANCE GENERAL INSURANCE, MAGANUR COMPLEX, B.H.ROAD, CHITRADURGA - 577 501.

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…RESPONDENTS

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(BY SRI. B.PRADEEP., ADVOCATE FOR R3; NOTICE TO R1 & R2 ARE SERVED)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 11.01.2018 PASSED IN MVC NO.823/2016 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE JMFC, 6^TH MACT, DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 8140/2018

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BETWEEN:

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SRI. MANJUNATHAIAH @ MANJUNATHA S/O MAHADEVAIAH @ MAHADEVAPPA, AGED ABOUT 22 YEARS, AGRICULTURIST AND WORKER IN PROVISION STORE, R/AT HALEBATHI VILLAGE, DAVANAGERE TALUK & DISTRICT-577 512.

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...APPELLANT

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(BY SRI. MOHAMMED THOUSHID., ADVOCATE FOR SRI. MANJUNATH.G.KANDEKAR., ADVOCATE)

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AND:

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SRI. CHIDANANDASWAMY S/O MALLAIAH MULEMATH, AGED ABOUT 35 YEARS, R/AT DOOR NO.342, HARLAPURA VILLAGE,

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2

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HC-KAR

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HARIHARA TALUK, DAVANGERE DISTRICT-577 601.

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SRI. PRAVEEN KUMAR.M.B. S/O BALARAM SHETTY, AGED ABOUT 38 YEARS, OWNER OF THE VEHICLE BEARING REG NO.KA-17-N-0956.

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THE GENERAL MANAGER, THE RELIANCE GENERAL INSURANCE, MAGANUR COMPLEX, B.H.ROAD, CHITRADURGA-577 501.

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...RESPONDENTS

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(BY SRI. B.PRADEEP., ADVOCATE FOR R3; NOTICE TO R1 & R2-DISPENSED WITH V/O/DTD:22.02.2024)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.01.2018 PASSED IN MVC NO.824/2016 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, VI M.A.C.T., DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI & HON'BLE MS. JUSTICE TARA VITASTA GANJU

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ORAL JUDGMENT

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(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)

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1. The present appeals before this Court being M.F.A No.8138/2018 and M.F.A.No.8140/2018 have been

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filed impugning the common Judgment and Award dated

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HC-KAR

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11.01.2018 in M.V.C.Nos.823/2016 and 824/2016 passed

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by the II Additional Senior Civil Judge and & VI MACT, Davanagere (hereinafter referred to as the ‘Impugned Award’). By the Impugned Award, the learned Tribunal in M.V.C.No.823/2016 awarded Rs.3,35,413/and in M.V.C.No.824/2016, Rs.3,21,349/- along with interest at the rate of 8% per annum from the date of petition till the date of deposit.

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2. The challenge in these appeals has been made by the claimants. F or the sake of convenience, appellant in MFA No.8138/2018 is referred to as petitioner No.1 and in MFA No.8140/2018 as petitioner No.2.

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3. S ince the Impugned Award passed is a common Award

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and arising out of the same accident, both these appeals have been heard and decided at the admission stage with the consent of the parties.

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4. The brief facts are that both the petitioner Nos.1 and 2 w ere proceeding on a motorcycle bearing registration

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HC-KAR

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No.KA-17/ET-0309 as rider and pillion rider respectively, on

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24.06.2016 at about 08.30 p.m. near Doddabathi village,

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Kere area and at that time a driver of a car bearing registration No.KA-17/N-0956, stated to being driven in a rash and negligent manner hit the motorcycle. As a result

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of the accident, both persons fell down and sustained injuries. The petitioners were initially taken to C.G.Hospital and thereafter shifted to Manipal Hospital.

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5.1 While the petitioner No.1 was hospitalized for a period of approximately two and a half weeks and sustained fractures, the petitioner No.2 was hospitalized for about two weeks and he also sustained fracture.

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5.2. In view of the accident, b oth petitioners filed separate claim petitions under Section 166 of the Motor Vehicles Act, 1988. It was stated in the petitions that both the petitioners were doing agricultural activities and earning about Rs.10,000/- per month.

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HC-KAR

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5.3. Notices were issued to the respondent No.1/driver, respondent No.2/owner of the vehicle as well as respondent No.3/Insurer of the offending vehicle. In reply, all the respondents contested the matter and denied the claim of the petitioners.

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6. Based on the pleadings of the parties, the following

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issues were framed:

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“ISSUES IN MVC 823/2016

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1) Whether the petitioner proves that, on 24.02.2016 at about 8.30 p.m. when he was proceeding in Hero Honda Splender Plus Motorcycle bearing Reg. No.KA-17/ET-0309 as pillion rider towards Halebathi near Temple, Kere Area, Doddabathi village, a Car bearing Reg. No.KA-17/N-0956 from opposite side drove by respondent No. 1 in rash and negligent manner and dashed to their motorcycle and as such he fell down and has sustained injuries as averred in his petition?

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2) Whether the petitioner is entitled for the compensation as prayed? If so, at what rate and from whom?

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3) What Order?

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ISSUES IN MVC 824/2016

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1) Whether the petitioner proves that, on 24.02.2016 at about 8.30 p.m. when he was riding Hero Honda Splender Plus Motorcycle bearing Reg. No. KA-17/ET-0309 towards Halebathi near Temple, Kere Area, Doddabathi village, a Car bearing Reg. No.KA-17/N-0956 from opposite side drove by respondent No.1 in rash and negligent manner and dashed to their motorcycle and as such he fell down and has sustained injuries as averred in his petition?

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HC-KAR

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2) Whether the petitioner is entitled for the compensation as prayed? If so, at what rate and from whom?

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3) What Order?”

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7. The petitioner No.1 examined himself as P.W.1 while petitioner No.2 was examined as P.W.2. In addition, the treating doctor was examined as P.W.3. Several documents were marked as exhibits which included FIR (Ex.P1), chargesheet (Ex.P3), spot and vehicle seizure mahazar (Exs.P4 & P5), wound certificate (Ex.P12), MVI report (Ex.P13), documents including treatment and other medical bills (Ex.P14 to Ex.P20) and Ambulance Bill (Ex.P21). The Disability Certificate of petitioner No.1 was exhibited as Ex.P24, while Disability Certificate of petitioner No.2 was exhibited as Ex.P35. O n behalf of the respondents, no evidence was led.

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The Tribunal after examining the evidence found that so far as concerns the rash and negligent driving, the same was proved. In addition, it was held that the wound certificates confirmed that the petitioners met with an accident and sustained grievous injuries. So far as concerns

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HC-KAR

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the loss of income in view of the accident, the learned Tribunal so far as petitioner No.1 is concerned, took the loss of income at Rs.8,000/- per month. Since the disability certificate showed a disability of 30% of right lower limb, disability of 10% was taken for the whole body. The Tribunal

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awarded the amounts for medical bills and other nonpecuniary heads. Given the fact that the petitioner was 24 years old, the loss of future earning with the multiplier of 18 was calculated as follows:

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[Rs.8,000 x 12 x 18 x 10%= Rs.1,72,800/-]

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8.1 The amounts awarded by the learned Tribunal in MVC

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No.823/2016 are as under:

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Sl. No.	Heads of Compensation	Amount
1)	Towards loss of future earning	Rs. 1,72,800/-
2)	Pain and sufferings	Rs. 30,000/-
3)	Medical Expenses	Rs. 92,073/-
4)	Loss of conveyance charges	Rs. 14,540/-
5)	Loss of amenities, Food, nourishment and attendant charges	Rs. 10,000/-
6)	Loss of income duringlaid up period	Rs. 16,000/-
	Total	Rs.3,35,413/-

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HC-KAR

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8.2 Thus, an amount of Rs.3,35,413/- to petitioner No.1 along with interest at the rate of 8% per annum was

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awarded by the learned Tribunal.

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8.3 So far is concerns petitioner No.2, the learned Tribunal

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found that the disability to the whole body was taken at 25% and thus, took the disability of 8%. The learned Tribunal also found that since there was no proof of income, notional income could be awarded and given the fact that the petitioner was 20 years old, the loss of future earning with the multiplier of 18 was calculated as follows:

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[Rs.8,000 x 12 x 18 x 8%= Rs.1,38,240/-]

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8.4 The learned Tribunal also awarded amounts towards

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medical bills, loss of amenities, food, nourishment and

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attendance charges in the following manner:

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Sl. No.	Heads of Compensation	Amount
1)	Towards loss of future earning	Rs. 1,38,240/-
2)	Pain and sufferings	Rs. 40,000/-
3)	Medical Expenses	Rs. 1,03,109/-
w4)	Loss of conveyance charges	Rs. 14,000/-
5)	Loss of amenities, Food, nourishment and attendant charges	Rs. 10,000/-

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HC-KAR

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6)	Loss of income during laid up period	Rs. 16,000/-
	Total	Rs.3,21,349/-

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8.5. Thus, an amount of Rs.3,21,349/- to petitioner No.2

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along with interest at the rate of 8% per annum was awarded by the learned Tribunal.

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As stated above, the challenge in the present appeals

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is by both petitioner No.1/appellant No.1 and petitioner No.2/appellant No.2.

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Learned counsel for the appellants/petitioners firstly contends that the notional income for the year 2018 was Rs.9,500/- per month. However, it was only taken as Rs.8,000/- by the learned Tribunal. Secondly, it was contended that the amounts awarded towards the nonpecuniary heads including loss of amenities, conveyance and other non-pecuniary heads were on the lower side for

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both petitioner No.1 and petitioner No.2. The learned counsel further contended that based on the medical examination, disability certificates were issued by the

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HC-KAR

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doctor and same have been produced by both petitioners as well.

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The Learned counsel for the respondent

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No.3/Insurance Company on the other hand fairly submits that the notional income for the year 2016 was Rs.9,500/per month. However, he submits that the amounts awarded towards other heads are in accordance with law.

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12. Based on the contention of the parties, the following issue arises for determination:

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“Whether the petitioner Nos.1 and 2 were entitled to any amount of enhanced compensation?”

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An examination of the disability certificates Ex.P24

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and P35 as well as the evidence of P.W.3/Dr.Prabu Basavanagowda, Orthopedic Surgeon at C.G.Hospital and Basaveshwara Health Centre, Davanagere, shows that the the doctor examined both the petitioner No.1 and petitioner No.2. So far as the petitioner No.1 was concerned, it was stated that he was an inpatient from 25.02.2016 to

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12.03.2016 and also underwent an operation for his right

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femur where a steel rod was inserted in his leg. Given the examination, the doctor found that the petitioner No.1 had suffered permanent physical impairment and functional loss

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of about 30% to his right lower limb. The relevant extract

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of the evidence of P.W.2 is below:

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“2. I submit that I have collected the history from the injured. Soon after the accident the injured has taken primary treatment at C.G. Hospital Davanagere and later he has taken treatment at Kasturba Hospital, Manipal for the following injuries:-

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Diagnosis: a. Fracture Rt Femur. b. Rt great toe distal phalanx fracture.

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Treatment: a. Interlocking nailing right femur on 27-02-2016. b. cast application for Rt foot.

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The injured has taken treatment at Kasturba Hospital, Manipal as an impatient from 25-02-2016 to 12-03-2016. Where he underwent operation for right femur on 27-02-2016. Where fixed the steel rod and was discharged from the said hospital and advised to non wt bearing crutch walk. Elevation of lower limb, Report every two month for the fallow up treatment, as per the advise he has taken treatment regularly.

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xxx xxx xxx

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4. I submit that considering the above functional clinical and radiological evaluation and on perusal of wound certificate, treatment certificate, OPD cards, X-ray and X-ray reports and a manual of permanent functional disability assessment by Central Government. I am of the opinion that the patient has got permanent physical impairment and functional loss about 30%”

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[Emphasis Supplied]

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HC-KAR

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So far as concerns the petitioner No.2, it was stated

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that the injured had taken treatment from 25.02.2016 to

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09.03.2016 and he also underwent similar operation for right femur. However, on examining the petitioner No.2, permanent physical disability was found at about 25%. The

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relevant extract of the evidence of P.W.2 is as under:

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“6. I submit that I have collected the history from the injured. Soon after the accident the injured has taken primary treatment at C.G. Hospital Davanagere and later he has taken treatment at Kasturba Hospital, Manipal for the following injuries:-

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Diagnosis: a. Fracture Rt Femur with two lacerations over right thigh-grievous.

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b. RT fibula head fracture.

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Treatment: a. Interlocking nailing right femur on 27-02-2016.

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b. RT fibula head fractures were treated by immobilization.

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The injured has taken treatment at Kasturba Hospital, Manipal as an impatient from 25-02-2016 to 12-03-2016. Where he underwent operation for right femur on 27-02-2016. Where fixed the steel rod and was discharged from the said hospital and advised to non wt bearing crutch walk. Elevation of lower limb. Report every two months for the follow up treatment, as per the advise he has taken treatment regularly.

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xxx xxx xxx

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HC-KAR

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8. I submit that considering the above functional clinical and radiological evaluation and on perusal of wound certificate, treatment certificate, OPD cards, X-ray and X-ray reports and a manual of permanent functional disability assessment by Central Government. I am of the opinion that the patient has got permanent physical impairment and functional loss about 25%.”

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[Emphasis Supplied]

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Given the similar nature of the injury and the fact that

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both petitioners underwent an operation for the injuries, this Court deems it apposite to enhance the amounts awarded towards loss of amenities, pain and sufferings, loss of income during laid up period and conveyance charges.

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In addition, in view of settled law, the amounts for loss of

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future earning are calculated as follows:

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Petitioner No.1:

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Loss of dependency	Rs.9,500/-x12x18x30%
	=Rs.6,15,600/-

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Petitioner No.2:

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Loss of dependency	Rs.9,500/-x12x18x25%
	=Rs.5,13,000/-

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HC-KAR

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16. Accordingly, the compensation for petitioner No.1 is

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re-calculated as follows:

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Sl. No	Head of compensation	Amount in (Rs.)
.
1)	Loss of future earnings	Rs.6,15,600/-
2)	Pain and suffering	Rs.40,000/-
3)	Medical Bills	Rs.92,073/-
4)	Conveyance Charges	Rs.25,000/-
5)	Loss of amenities	Rs.30,000/-
6)	Loss of income during laid of period (Rs.9,500 X 3)	Rs.28,500/-
	Total	Rs.8,31,173/-
	Awarded by the Tribunal	Rs.3,35,413/-
	Enhanced Compensation	Rs.4,95,760/-

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16.1 The compensation for petitioner No.2 is re-calculated

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in the following terms:

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Sl. No	Head of compensation	Amount in (Rs.)
.
1)	Loss of future earning	Rs.5,13,000/-
2)	Pain and suffering	Rs. 40,000/-
3)	Medical Bills	Rs.1,03,109/-
4)	Conveyance Charges	Rs.14,000/-
5)	Loss of amenities	Rs.30,000/-
6)	Loss of income during laid of period (Rs.9,500 X 3)	Rs.28,500/-
	Total	Rs.7,28,609/-
	Awarded by the Tribunal	Rs.3,21,349/-
	Enhanced Compensation	Rs.4,07,260/-

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HC-KAR

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Hence, the petitioner No.1 is entitled to total compensation of Rs.8,31,173/- and the petitioner No.2 is entitled total compensation of Rs.7,28,609/-. along with interest at the rate of 8% per annum as awarded by the learned Tribunal from the date of petitions till the date of realization.

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Accordingly, the Court proceeds to pass the following:

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ORDER

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ssss(i) The appeals are allowed in part ;

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(ii) The Impugned common Judgment and Award dated 11 .01.2018 in M.V.C.Nos.823/2016 and 824/2016 passed by the II Additional Senior Civil Judge and VI MACT, Davanagere, is modified, to the extent that the petitioner No.1 is entitled to total compensation of Rs.8,31,173/- and petitioner No.2 is entitled to total compensation of in the sum of Rs.7,28,609/- along with interest at the rate of 8% per annum from the date of petition till the date of realization.

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(iii) The remaining portion of the Impugned Award

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of the learned Tribunal remains undisturbed.

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(iv) The respondent – Insurance Company shall deposit the enhanced compensation with interest applicable thereon, as awarded by the learned Tribunal, within a period of eight weeks from the

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date of receipt of a copy of this judgment;

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(v) On such deposit of compensation, the same shall be released in favour of the appellants/petitioner Nos.1 and 2 on filing of an appropriate application by them for withdrawal of the enhanced amount.

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(vi) The Registry is directed to draw the modified Award accordingly.

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(vii) The Registry is directed to transmit a copy of this judgment and records to the concerned Tribunal.

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(viii) Pending application(s), if any, stand closed.