Karnataka High Court
Manjegowda vs Peter Raju M on 2 July, 2013
Author: C.R.Kumaraswamy
Bench: C.R. Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF JULY 2013
BEFORE
THE HON'BLE MR.JUSTICE C.R. KUMARASWAMY
MFA NO.1687 OF 2011 (MV)
C/W
MFA NO. 1692 OF 2011(MV)
IN MFA NO.1687/2011
BETWEEN:
MANJEGOWDA S/O KALEGOWDA
AGED ABOUT 30 YEARS
RESIDENT OF HADANAHALLI VILLAGE
SHRAVANABELAGOLA HOBLI
CHANNARAYAPATNA TALUK
HASSAN DISTRICT ... APPELLANT
(BY SRI.CHETHAN.B., ADVOCATE)
AND:
1. PETER RAJU M S/O BALASOURAIAH
MAJOR, RESIDENT OF NO.45/24
R-54-1 UPPERS, BHAGATHSINGH
COLONY, KOORNOOL
ANDRA PRADESH
C/O P.VASUDEVA
DIRECTOR, MOKSHA PROJECT PVT LTD.,
NO.178/5, 8TH "F" MAIN ROAD
III BLOCK, JAYANAGAR
BANGALORE-560 011
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2. THE MANAGER
NATIONAL INSURANCE CO., LTD.,
MANJUNATHA COMPLEX
BUS STAND ROAD
HASSAN-573 201 ... RESPONDENTS
(BY SRI.K.N.SRINIVASA, ADVOCATE FOR R2.
R1-NOTICE DISPENSED WITH VIDE ORDER
DATED 03.04.2013)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 20.10.2010 PASSED IN MVC
NO.1889/2009 ON THE FILE OF PRESIDING OFFICER, FAST
TRACK COURT, AND MACT, CHANNARAYAPATNA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.1692/2011
BETWEEN:
KANTHARAJA S/O LATE RAJEGOWDA
AGED ABOUT 26 YEARS
RESIDENT OF HADANAHALLI VILLAGE
SHRAVANABELAGOLA HOBLI
CHANNARAYAPATNA TALUK
HASSAN DISTRICT-573116 ... APPELLANT
(BY SRI.CHETHAN.B., ADVOCATE)
AND:
1. PETER RAJU M S/O BALASOURAIAH
MAJOR, RESIDENT OF NO.45/24
R-54-1 UPPERS, BHAGATHSINGH
COLONY, KOORNOOL
ANDRA PRADESH
3
C/O P.VASUDEVA
DIRECTOR, MOKSHA PROJECT PVT LTD.,
NO.178/5, 8TH "F" MAIN ROAD
III BLOCK, JAYANAGAR
BANGALORE-560 011
2. THE MANAGER
NATIONAL INSURANCE CO., LTD.,
MANJUNATHA COMPLEX
BUS STAND ROAD
HASSAN-573 201 ... RESPONDENTS
(BY M/S. LEXPLEXUS ADVCOATES FOR R2.
R1-NOTICE DISPENSED WITH VIDE ORDER
DATED10.01.2012)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 20.10.2010 PASSED IN MVC
NO.1890/2009 ON THE FILE OF PRESIDING OFFICER, FAST
TRACK COURT, AND MACT, CHANNARAYAPATNA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR FURTHER ORDERS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT
MFA Nos. 1687/2011 and 1692/2011 are filed under
Section 173(1) of MV Act against the judgment and award
dated 20.10.2010 passed in MVC Nos. 1889/2009 and
1890/2009 on the file of Presiding Officer, Fast Track Court
and MACT at Channarayapatna, partly allowing the claim
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petitions for compensation and seeking for enhancement of
compensation.
2. With the consent of the learned counsel for appellant as
well as learned counsel for respondents, these matters were
heard on merits. The records of the claims Tribunal were also
called for and I have perused the same.
3. The case of the claimants in the claims Tribunal in both
the cases are as under:
That on 19.05.2009 at about 5.00 p.m., when the
claimants were proceeding on a motor cycle bearing
registration No. KA-09-V-5674 on Railway Bridge near Baralu
Village, a Car bearing registration No.AP-21-AA-3399 came in
a rash and negligent manner and hit against the motor
cyclists, as a result of which, the claimants sustained
injuries.
4. In the claims Tribunal, the respondent No.1 placed
exparte. The respondent No.2 has filed objection statement.
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After the investigation, the jurisdictional police have filed
charge sheet against the driver of the car bearing registration
No.AP-21-AA-3399. The respondent No.2 has not examined
the driver of the car in question. The claims Tribunal relying
on the oral evidence of the injured and documentary
evidence, has come to a conclusion that the driver of the car
bearing registration No.AP-21-AA-3399 was driving the same
in a rash and negligent manner. The finding recorded by the
claims Tribunal in respect of rash and negligent driving of the
driver of the car is based on evidence and it is sound and
proper.
5. The claims Tribunal has awarded a compensation of
Rs.25,000/- in MVC No.1889/2009 (MFA No.1687/2011) and
Rs.1,78,000/- in MVC No.1890/2009 (MFA No.1692/2011).
6. Wound certificate of claimant-Manjegowda in MVC
No.1889/2009 discloses that he has sustained following
injuries:
i) tenderness over the right knee
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ii) tenderness right foot & toes
iii) abrasion over the dorsum of right foot.
X-ray shows fracture of right 2nd metatarsal. The doctor
is of the opinion that the injury No.2 is grievous in nature and
injury Nos. 1 and 3 are simple in nature. PW2-doctor has
stated in his evidence that based on the examination findings,
X-ray findings and Central Govt. disability guidelines, the
claimant has got 20% permanent physical disability in
respect of right lower limb. The doctor has omitted to state
percentage of disability to the whole body. 1/3rd of 20% will
be the percentage of disability to the whole body i.e., 7%.
7. The claimant-Manjegowda is aged about 28 years.
Though it is the contention of the learned counsel for
appellant that the claimant-Manjegowda was a driver, but he
has not produced any documentary or acceptable evidence to
point out that he was a driver. Therefore, earning of the
claimant in MVC No.1889/2009 can be assessed at
Rs.4,500/- per month.
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8. Considering the nature of injuries suffered by the
claimant, the claims Tribunal has awarded a compensation
under the head of pain and suffering. In my view, this is on
the lower side. Therefore, it is just and reasonable to award a
sum of Rs.25,000/- under the head of pain and suffering.
9. Due to the injuries sustained by the claimant-
Manjegowda, there is curtailment of enjoyment of life by the
claimant. Therefore, it is just and reasonable to award a sum
of Rs.25,000/- under the head of loss of amenities.
10. Learned counsel for appellant submits that the finding
recorded in respect of medical expenses is reasonable.
Therefore, I do not want to disturb this finding.
11. The claims Tribunal has not awarded any compensation
under the head of conveyance charges, attendant charges and
nourishment expenses. Therefore, it is just and reasonable to
award a sum of Rs.2,000/- each under the heads of
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conveyance charges, attendant charges and nourishment
expenses.
12. As stated earlier, the income of the claimant is assessed
at Rs.4,500/- per month. Even after the discharge, the
claimant has to take rest, therefore, it is just and reasonable
to award a sum of Rs.4,500/- under the head of loss of
earning during the laid up period for one month.
13. The age of the claimant is 28 years and proper
multiplier that has to be adopted in this case is '17'. The loss
of income corresponding to the disability of 7% would be
Rs.315/- per month. So due to the reduced capacity of work,
the claimant-Manjegowda has lost income of Rs.64,260/-
(Rs.315/- x 12 = Rs.3,780/- x 17 = Rs.64,260/-) which has to
be compensated now under the head of loss of earning
capacity.
14. In all, the claimant-Manjegowda is entitled for a total
compensation as under:
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Pain and suffering Rs. 25,000/-
Loss of amenities Rs. 25,000/-
Medical expenses Rs. 10,000/-
Conveyance charges Rs. 2,000/-
Attendant charges Rs. 2,000/-
Nourishment charges Rs. 2,000/-
Loss of income during the
laid-up period Rs. 4,500/-
Loss of earning capacity Rs. 64,260/-
---------------------
Total Rs.1,34,760/-
---------------------
Rounded off Rs.1,35,000/-
15. In MVC No. 1890/2009 (MFA No.1692/2011), the
claims Tribunal has awarded a compensation of Rs.40,000/-
under the head of pain and suffering, Rs.80,000/- under the
head of medical expenses, Rs.18,000/- under the head of loss
of income during the laid-up period, Rs.20,000/- under the
head of loss of amenities and Rs.20,000/- under the head of
future medical expenses. In all, the claims Tribunal has
awarded a compensation of Rs.1,78,000/-
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16. Wound certificate of claimant-Kantharaja in MVC
No.1890/2009 discloses that he has suffered fracture of lower
end of femur, euro with vascular injury, fracture of right
fibula, fracture of right tibia and lacerated wound over the
post speet of right forearm measuring 3 x 1. The doctor is of
the opinion that the injury Nos. 1, 2 and 3 are grievous in
nature and injury No.4 is simple in nature. PW2-doctor has
stated in his evidence that X-ray of Kantharaja shows fracture
mal-united. He was also operated. Femur fracture and Tibia
fracture fixed with nail, plant and vein repaired by vascular
surgeon and wound debridement and suturing was done. The
claimant was discharged on 20.06.2009. He has got restricted
movement of the right knee, right ankle and right hip and
movement is painful, right leg is shortened comparison of left
leg, due to which he is not able to hold weight and walk.
17. The doctor has stated in his evidence that based on the
examination findings, X-ray findings and Central Government
disability guidelines, the claimant has got 40% permanent
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disability with respect to right lower limb. In this case, the
claims Tribunal has awarded a sum of Rs.40,000/-under the
head of pain and suffering. The claimant has sustained three
fractures and he has also operated, therefore, the
compensation awarded by the Tribunal under the head of
pain and suffering i.e., Rs.40,000/- is increased to
Rs.45,000/-.
18. A sum of Rs.1,25,000/- is awarded under the head of
medical expenses.
19. In this case, the claimant-Kantharaja was possessing
valid driving license. The date of the accident is 19.05.2009
and the age of the claimant is 24 years. Therefore, the income
of the injured-Kantharaja is assessed at Rs.5,000/- per
month. Though the doctor has stated in his evidence that
there is permanent disability to the claimant to the extent of
40%, but he has omitted to state the percentage of disability
to the whole body. The claimant is a driver, due to the
injuries sustained by the claimant, he will find it difficulty to
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drive the vehicle. Therefore, the functional disability of the
claimant can be assessed at 18%. As stated earlier, the age of
the claimant-Kantharaja is 24 years and suitable multiplier
that has to be adopted in this case is '18'. The loss of income
corresponding to the disability 18% would be Rs.900/- per
month. So due to the reduced capacity of work, the claimant
has lost income of Rs.1,94,400/- (Rs.900/- x 12 =
Rs.10,800/- x '18'=Rs.1,94,400/-) which has to be
compensated now under the head of loss of earning capacity.
20. In all, the claimant-Kantharaja is entitled for a total
compensation as under:
Pain and suffering Rs. 45,000/-
Loss of amenities Rs. 20,000/-
Medical expenses Rs.1,25,000/-
Conveyance charges Rs. 5,000/-
Attendant charges Rs. 4,000/-
Nourishment expenses Rs. 3,000/-
Loss of income during laid-up
period Rs. 15,000/-
Loss of earning capacity Rs.1,94,400/-
---------------------
Total Rs.4,11,400/-
---------------------
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21. The enhanced compensation amount in both the
appeals will bear the interest at 6% per annum from the date
of petition till the date of payment.
22. In view of the above discussion, I pass the following:-
ORDER
1. These Miscellaneous First Appeals are allowed in part.
2. The compensation is enhanced in MFA No. 1687/2011 from Rs.25,000/- as awarded by the Claims Tribunal to Rs.1,35,000/-.
3. The compensation is enhanced in MFA No. 1692/2011 from Rs.1,78,000/- as awarded by the Claims Tribunal to Rs.4,11,400/-.
4. The enhanced compensation amount in the both the appeals will bear the interest at 6% per annum from the date of petition till the date of payment.
5. The compensation awarded under the head of future medical expenses i.e., Rs.20,000/- in MVC No. 14 1890/2009 (MFA No.1692/2011), will not bear any interest.
6. Rest of the judgment and award is accepted.
SD/-
JUDGE JTR