Karnataka High Court
Mallanagouda S/O Basanagouda Giriyal, vs Raju Hanumanthappa Mallapur, on 23 July, 2019
Equivalent citations: AIRONLINE 2019 KAR 3149
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23rd DAY OF JULY 2019
BEFORE
THE HON'BLE MR.JUSTICE P.G.M. PATIL
MFA NO.20808/2013 [MV-I]
BETWEEN
MALLANAGOUDA S/O BASANAGOUDA GIRIYAL,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O YATTINAHALLI, TQ. HIREKERUR,
DIST. HAVERI.
... APPELLANT
(By SRI. M H PATIL, ADV.)
AND
1. RAJU HANUMANTHAPPA MALLAPUR,
AGE: 37 YEARS, R/O HOSAKATTI,
TQ. HIREKERUR, DIST. BELLARY
2. THE DIVISIONAL MANAGER,
IFFCO TOKIO INSURANCE
CO. LTD., NO. 7/432,
PCA & RD BANK BUILDING,
K.B. EXTENSION, LAWYERS ROAD,
DAVANAGERE.
... RESPONDENTS
(By SRI. RAVINDRA R MANE, ADV. FOR R2;
R1 SERVED)
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MFA FILED U/S 173(1) OF MV ACT 1988, AGAINST
THE JUDGMENT AND AWARD DATED:27-09-2012 PASSED
IN MVC NO.21/2011 ON THE FILE OF SENIOR CIVIL
JUDGE AND JMFC., HIREKERUR, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The claimant being dissatisfied by the judgment and award dated 27.09.2012 passed in MVC No.21/2011 by the Senior Civil Judge and JMFC, Hirekerur has filed this appeal.
2. It is the case of the claimant before the Tribunal that on 03.07.2006 at about 4.30 p.m., the petitioner was proceeding on his bicycle on the left side of the road near Yattinahalli and at that time one auto rickshaw bearing registration No.Ka-27/8090 driven by its driver in a rash and negligent manner with great speed came from Hosakatti side and dashed against the bicycle, due to which the petitioner sustained grievous injuries. He 3 was treated in the City Central Hospital, Davangere and thereafter at Kasturba Hospital, Manipal. He has spent Rs.1,00,000/- for the treatment. He was doing agricultural work and earning Rs.10,000/- p.m. Due to the accidental injuries, he is suffering from permanent disability and unable to do any work. Therefore he claimed compensation against the owner and insurer of the offending vehicle.
3. In response to the notice, respondent No.1 remained absent and was placed ex parte. Respondent No.2 the insurer appeared before the Tribunal and filed written statement. The age, occupation and income of the petitioner are not admitted by the respondent.
4. On the basis of the pleadings of the parties, the Tribunal framed issues. In support of their claim petition, claimant No.1 was examined as PW-1 and examined one witness and got marked 37 documents. 4 Respondent No.2 produced 2 documents at Ex.R1and R2.
5. The learned member of the Tribunal after hearing both the parties passed the impugned judgment awarding compensation of Rs.3,27,419/- with interest at the rate of 6% p.a. from the date of petition till its realization. Respondents No.1 and 2 were held jointly and severally liable to pay the compensation.
6. The claimant being dissatisfied with the said award has filed the present appeal for enhancement of the compensation.
7. Heard the learned counsel for the appellant/claimant and the insurer.
8. In this appeal, the liability to pay compensation by the insurer is not disputed. It is only the claimant who has sought for enhancement of compensation. 5 Therefore, this Court need not go in the aspect of the liability saddled against the insurer.
9. A short question which arise for consideration before this Court is, as to whether the appellant/claimant has made out grounds for enhancement of the compensation.
10. Learned counsel for the appellant/claimant submitted that the Tribunal has considered the income of the petitioner at Rs.4,500/- p.m. which needs to be enhanced and that the Tribunal has considered the disability of the petitioner at 18% of the whole body which needs to be considered at 60% of the whole body and further that the compensation awarded under other heads is also on the lower side.
11. Per contra, the learned counsel for the insurer supports the impugned judgment.
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12. The claimant contended before the Tribunal that he was doing agricultural work and earning Rs.10,000/- p.m. and maintaining his family. However, he has not produced any positive evidence and in the absence of such evidence, the Tribunal has considered the income at Rs.4,500/- p.m. There is no ground to interfere with the said finding of the Tribunal. However, the Tribunal has considered the permanent disability at 18% of the whole body on the evidence of PW2-Doctor and Ex.P30- the disability certificate issued by PW2. This goes to show that the petitioner is suffering from permanent disability of 60% of the right lower limb.
13. The learned counsel for the claimant submitted that there is shortening in the right leg and therefore disability may be considered at 25% of the whole body.
14. The evidence on record goes to show that the petitioner is suffering from permanent disability of 60% of the right lower limb and therefore it is just necessary 7 to consider 1/3rd of the said disability as for the whole body. Therefore the permanent disability is taken at 20% of the whole body for awarding compensation. On re-assessment of the entire material on record, the following just compensation is awarded:
Considering the income of the petitioner at Rs.4,500/- p.m. and by applying multiplier 17, he would be entitled for a sum of Rs.1,83,600/- (4500x12x17x20%) towards loss of future earning capacity due to disability. A sum of Rs.93,179/- awarded by the Tribunal towards medical expenses is retained. A sum of Rs.15,000/- is awarded under the head pain, shock and suffering and fractures and another sum of Rs.15,000/- towards loss of expectation of life. In the present case, as the claimant is suffering from 20% of the permanent disability, it appears that awarding compensation towards loss of expectation of life is not proper. However, the compensation towards pain and suffering is enhanced to Rs.30,000/- and 8 Rs.15,000/- awarded under the loss of expectation of life is disallowed. A sum of Rs.20,000/- is awarded by the Tribunal towards loss of amenities in life, happiness and frustration. The said amount is enhanced to Rs.40,000/-. A sum of Rs.10,000/- awarded towards conveyance, attendant charges, food and nourishment awarded by the Tribunal is enhanced to Rs.15,000/-. A sum of Rs.9,000/- awarded towards loss of earning during treatment is retained. Thus the total compensation awarded is Rs.3,70,779/- as against Rs.3,27,419/- awarded by the Tribunal.
15. The point for consideration is answered accordingly. In the result, this Court proceed to pass the following:
ORDER The appeal is partly allowed.9
Appellant/claimant is awarded Rs.3,70,779/- with interest at 6% p.a. from the date of petition till realization.
The insurer is hereby directed to deposit the balance compensation amount before the Tribunal within eight weeks from this day.
SD/-
JUDGE KGK