Research › Search › Judgment

Karnataka High Court · body

2022 DIGILAW 322 (KAR)

B. S. chennappa v. Head Master

2022-03-07

PRADEEP SINGH YERUR

body2022
JUDGMENT 1. Though this matter is listed for admission, with the consent of both the learned counsel, the same is taken up for final disposal. 2. Heard learned counsel Mr.Shivaprasad.M., appearing on behalf of the appellant and learned counsel Mr.Shivaraj Patil, appearing on behalf of respondent No.2. 3. This is an appeal preferred by the claimant being aggrieved by the judgment and award dtd. 11/4/2019 passed by the Senior Civil Judge and MACT, Maddur in MVC No.766/2017. This appeal is founded by the inadequacy of compensation awarded by the Tribunal and hence seeking for enhancement of the compensation. 4. Brief facts of the case: On 10/5/2016 at about 6.30 am when the claimant was riding the Honda Activa motorcycle bearing Registration No.KA-51-EN-517 slowly and cautiously on the left side of the road namely Bangalore-Mysore Road, at that time, one school bus bearing Registration No.KA-11-A-7975 which was being driven by its driver in a rash and negligent manner and at a high speed so as to endanger human life, all of a sudden stopped the bus without giving any signal. Due to which, claimant, who was riding the motorcycle dashed against the hind portion of the bus. As a result, the claimant fell down and sustained grievous and multiple injuries all over his body. Immediately thereafter, he was shifted to Government Hospital, Maddur for initial treatment and thereafter he was shifted to MIMS, Maddur and subsequently, he was shifted to JSS, Mysore. Surgery was conducted on the claimant and he was discharged thereafter and advised to take regular outpatient treatment. 5. It is the case of the claimant that the accident occurred due to sole negligence and rash driving by the driver of the school bus. Due to the accident and injuries sustained by the claimant and the expenditure expended by him, the claimant has preferred the claim petition against the respondents seeking compensation. 6. On service of notice, respondent No.1, owner of the offending vehicle namely school bus did not file statement of objections and the respondent No.2-Insurance company, appeared and filed its statement of objections and contested the claim petition by denying the claim made by the claimants. It was pleaded by the respondent No.2 that insurance coverage of the offending vehicle is disputed and it is also disputed that the driver of the offending vehicle was not holding a valid driving licence as on the date of accident. It was pleaded by the respondent No.2 that insurance coverage of the offending vehicle is disputed and it is also disputed that the driver of the offending vehicle was not holding a valid driving licence as on the date of accident. Hence, no liability would arise against the Insurance Company. Hence, denied the liability on itself to pay the compensation and sought for dismissal of the claim petition. 7. On the basis of the pleadings, the Tribunal framed relevant issues. 8. In order to prove and establish his case, the claimant got examined himself as PW1 and got marked Exs.P-1 to P-13. He also got examined an eye witness namely Mr.Sudhan.H.P. as PW-2. The claimant also got examined two witnesses namely Dr.Mahesh.S. and Dr.Adarsh through Court Commissioner as CW1 and CW2 and through their evidence Exs.C-1 to C-15 were got marked. 9. The respondents on the other hand did not step into the witness box or neither led any evidence to counter the case of the claimant and did not produce any document on their behalf. 10. After hearing both sides and providing sufficient opportunity to both parties, the Tribunal came to the conclusion that the claimant would be entitled for a compensation in a sum of Rs.3,24,389.00 with interest at the rate of 9% per annum from the date of claim petition till the date of payment and directed the respondent No.2 being the insurer to deposit the compensation amount. Being aggrieved by the Judgment and award of the Tribunal, the claimant has preferred this appeal seeking for enhancement. 11. The point that would arise for consideration is as to whether the Tribunal has awarded a reasonable and just compensation commensurate to the injuries suffered by the claimant in the accident occurred on 10/5/2016? 12. Learned counsel for the claimant has vehemently contended that the impugned judgment and award passed by the Tribunal is erroneous and Tribunal has erred in not computing appropriate compensation under the relevant heads and thereby awarded a meager and inadequate compensation resulting in miscarriage of justice to the claimant. The judgment and award of the Tribunal requires to be set aside and compensation has to be enhanced in favor of the claimant. The judgment and award of the Tribunal requires to be set aside and compensation has to be enhanced in favor of the claimant. He further contends that the Tribunal has failed to assess proper income and total compensation awarded by the Tribunal under different heads is on the lower side and same requires to be enhanced. On these grounds, he seeks to allow the appeal and enhance the compensation. 13. Per contra, learned counsel for respondent No.2 - Insurer vehemently contends that judgment and award passed by the Tribunal is reasoned and considered order and the Tribunal has considered all aspects of income, multiplier, loss of future income so also pain and sufferings and accordingly awarded just and reasonable compensation, which is in accordance with the materials and documents produced by the claimant. The compensation awarded by the Tribunal is just and reasonable and the same does not warrant interference by this Court. Hence, the appeal does not merit consideration and the same requires to be dismissed. 14. Having heard the learned counsel for appellant and respondent No.2, this Court will have to decide as to whether the compensation awarded by the Tribunal is just and reasonable and whether the claimant is entitled for enhancement. 15. It is not in dispute that the accident occurred on 10/5/2016 at 6.30 am while the claimant was riding his Honda Activa Motorcycle on BangaloreMysore Road. It is also not in dispute that the accident was caused by rash and negligent driving of the school bus bearing Registration No.KA-11-A-7975 by its driver, due to which the claimant suffered grievous injuries. 16. It is also not in dispute that a complaint came to be registered against the driver of the bus, pursuant to which an FIR and final report came to be filed. The claimant has produced Ex.P1 to P6 - Police records. It is apparent that the criminal case has been lodged against the driver of the bus and final report to that extent has been filed. These documents Ex.P1 to P6 are not disputed by the respondents, so also admittedly there is no challenge made to the registration of the case and filing of the final report against the driver of the bus. These documents Ex.P1 to P6 are not disputed by the respondents, so also admittedly there is no challenge made to the registration of the case and filing of the final report against the driver of the bus. To disprove the same, the insurer or the owner of the offending vehicle have not produced any documents to show that there is no negligence on the part of the driver of the bus or there was contributory negligence on the part of the claimant. Hence, it can be concluded on the basis of the police records that there is rash and negligent driving on the driver of the bus and due to the said accident, the claimant has sustained serious injuries. 17. Now, the point for consideration is, 'what would be the income to be adopted by this Court for deciding the compensation?'. Admittedly, claimant has not produced any material evidence as proof of income or source of income. In case where the claimant is unable to produce any material to prove the income, the Tribunal as well as this Court would have to make guesswork and take the assistance of the notional income prescribed in the chart prepared by the Legal Services Authority. 18. In the present case on hand, the Tribunal has taken the income of the claimant at Rs.7,000.00 per month. I am in agreement with the contention of the learned counsel for claimant that the same is on the lower side as the notional income prescribed in the Legal Services Authority Chart for the accident of the year 2016, is Rs.9,500.00 per month for the computation of the compensation. 19. The age of the claimant was 27 years as on the date of accident. The appropriate multiplier would be 17 as per the judgment of the Apex Court in the case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 Supreme Court Cases 121. 20. The claimant has got examined two doctors as CW-1 and CW-2, who have deposed in favour of the claimant and produced Exs.C-1 to C-15, wherein they have deposed that due to the accident the claimant has suffered disability to the extent of 21.5% to the upper limb. Evaluating the same, the Tribunal has arrived at whole body disability to the extent of 6%. Evaluating the same, the Tribunal has arrived at whole body disability to the extent of 6%. On the basic mathematical calculation, if 1/3rd is deducted, the whole body disability comes to 7%. Hence, the whole body disability is ought to be taken at 7% rather than 6% taken by the Tribunal for calculating the 'loss of future earning'. In view of the above, the 'loss of future earning capacity' would be Rs.1,35,660.00 (Rs.9,500.00 x 12 x 17 x 7/100) as against Rs.85,680.00 awarded by the Tribunal. 21. The Tribunal has awarded a sum of Rs.25,000.00 under the head of 'pain and sufferings', the same requires to be enhanced by an additional sum of Rs.20,000.00 making it Rs.45,000.00. 22. The Tribunal has awarded a sum of Rs.14,000.00 towards the 'loss of income during laid-up period'. Considering the nature of injuries, I deem it appropriate to award a sum of Rs.30,000.00 as 'loss of income during laid-up period' as against a sum of Rs.14,000.00 awarded by the Tribunal. 23. The Tribunal has awarded a sum of Rs.12,000.00 towards 'medical attendant charges'. The claimant was treated as inpatient for a period of 21 days. Hence, I deem it appropriate to award a sum of Rs.21,000.00 under the head of 'medical and attendant charges' as against Rs.12,000.00 awarded by the Tribunal. 24. The Tribunal has awarded a sum of Rs.15,000.00 under the head 'loss of future happiness and amenities'. Considering the nature of injuries and disability stated by the doctors, I deem it appropriate to award a sum of Rs.25,000.00 as against Rs.15,000.00 awarded by the Tribunal under the said head. 25. The Tribunal has awarded compensation of Rs.172,709.00 towards 'medical expenses'. The same is awarded on the basis of the actual medical bills produced by the claimant at Ex.P-8 to 10. I do not find any reason to interfere with the said amount awarded by the Tribunal under the head of 'medical expenses'. 26. In view of the discussions made above, the claimant would be entitled to the compensation as mentioned in the table below. Heads As awarded by the Tribunal (Rs.) As awarded by this Court (Rs.) Pain and sufferings 25,000 45,000 Medical expenses 172,709 172,709 Medical and attendant charges 12,000 21,000 Loss of income during laid up period 14,000 30,000 Loss of amenities 15,000 25,000 Loss of future income 85,680 135,660 Total 324,389 429,369 27. Heads As awarded by the Tribunal (Rs.) As awarded by this Court (Rs.) Pain and sufferings 25,000 45,000 Medical expenses 172,709 172,709 Medical and attendant charges 12,000 21,000 Loss of income during laid up period 14,000 30,000 Loss of amenities 15,000 25,000 Loss of future income 85,680 135,660 Total 324,389 429,369 27. In view of the discussions made above, I pass the following: ORDER a) The appeal is partly allowed. Consequently, the Judgment and Award of the Tribunal is modified. b) The claimant is entitled to a total compensation of Rs.429,369.00 as against Rs.3,24,389.00 awarded by the Tribunal. c) The Insurance Company is directed to deposit the compensation amount along with interest from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment d) The enhanced amount shall carry interest at 6% p.a. e) All other conditions imposed by the Tribunal being left intact. No order as to costs.