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2025 DIGILAW 644 (KAR)

M. S. Chandru S/o Shivalingegowda v. Venkataswamy

2025-06-30

C.M.JOSHI

body2025
JUDGMENT : C M JOSHI, J. 1. Heard the learned counsel appearing for the appellants and learned counsels appearing for the respondent No.2-Insurance Company in all these appeals. 2. The appellants, who are the petitioners in MVC Nos.318/12, 319/12 and 321/12 are before this Court in appeals being aggrieved by the common judgment and award dated 14.08.2014 passed by the learned Senior Civil Judge & MACT, Channapattana. 3. The factual matrix of the case, as may be found from the records is that on 29.05.2011 at about 7.30 p.m., when the petitioners in MVC Nos.318/12 and 321/12, namely M.K.Sharath and M.Umesh were proceeding on a motor cycle bearing registration No.KA-42-1316 and when the petitioner in MVC 319/12, namely M.S.Chandru was following them on another motor cycle bearing registration No.KA-42-J-1330 on Channapatna- Kudlur Road, a Canter bearing registration No.KA-42-662, driven in a rash and negligent manner and at a high speed, came and dashed against the motorcycle, resulting in all the petitioners falling down and sustaining grievous injuries. Immediately thereafter, the petitioners were shifted to the Government hospital at Channapatna and subsequently, they were shifted to the Shekar hospital, Bangalore, where they took treatment for considerable lengthd of time. Thereafter, they continued their treatment at Punya Hospital, Channapatna. 4. The petitioners contended that the accident occurred due to the rash and negligent driving of the driver of the Canter and therefore, the owner and the insurer of the offending vehicle are liable to pay the compensation to the petitioners. 5. Upon service of notice, respondent Nos.1 and 2 appeared through their counsel before the Tribunal and, contended that the compensation claimed by these petitioners is highly exorbitant, imaginary and untenable, and further denied the age, income and occupation of the petitioners. Inter alia, he also took up the contention that there was no negligence on the part of the driver of the offending vehicle and that there was violation of terms and conditions of the insurance policy. 6. The Tribunal framed appropriate issues and the petitioners in all these petitions were examined as PW-1 to PW- 3 and Doctor who assessed the disability of injured, was examined as PW-4. Ex.P1 to Ex.P58 were marked in evidence. The official of respondent No.2-insurance company was examined as RW1 and Ex.R1 to Ex.R4 were marked in evidence. 6. The Tribunal framed appropriate issues and the petitioners in all these petitions were examined as PW-1 to PW- 3 and Doctor who assessed the disability of injured, was examined as PW-4. Ex.P1 to Ex.P58 were marked in evidence. The official of respondent No.2-insurance company was examined as RW1 and Ex.R1 to Ex.R4 were marked in evidence. After hearing the arguments on both sides, the tribunal held that the insurance company is liable to pay the compensation to the appellants since there were no such discernable violations of the terms and conditions of the policy. It has awarded compensation to these appellants as follows: M.V.C.No.318/2012 a Medical expenses Rs.5,41,038/- b Lay off compensation Rs.10,136/- c Attendant charges Rs.5,600/- d Loss of income Rs.2,88,007/- e Pain and Sufferings Rs.20,000/- f Loss of amenities in future life Rs.20,000/- Total Rs.8,84,781/- Rounded to Rs.8,84,780/- M.V.C.No.319/2012 a Medical expenses Rs.61,171/- b Attendant charges Rs.500/- c Pain and Suffering Rs.20,000/- d Loss of amenities Rs.20,000/- Total Rs.1,02,671/- Rounded to Rs.1,02,670/- M.V.C.No.321 /2012 a Medical expenses Rs.1,30,659/- b Attendant charges Rs.1,800/- c Pain and Suffering Rs.20,000/- d Loss of amenities in future life Rs.20,000/- Total Rs.1,72,459/- Rounded to Rs.1,72,460/- 7. Being aggrieved by the said common judgment, the appellants are before this court in appeals contending that the compensation awarded by the tribunal is on the lower side and it has not considered all the factors which should have been considered while assessing the compensation amount. It is contended that there is a need for re-assessment of the compensation amounts determined by the tribunal and therefore, there shall be enhancement in the same. 8. So far as the appellant in M.V.C.No.318/2012 is concerned, it is submitted that the appellant was aged 26 years, he suffered fracture of right femur, right ulna and right clavicle along with fracture of right radius; he was agriculturist; he was inpatient for 56 days in the hospital and therefore, the compensation awarded is abysmally low and there shall be re-assessment of the same. 9. So far as M.V.C.No.319/2012 is concerned, it is contended that the appellant had suffered fracture of ulna, fracture of writer of right arm, fracture of right femur and he was inpatient for 6 days, aged about 25 years and was working as a rider in a transport company. Therefore, learned counsel for the appellant has sought for re-assessment of the compensation. 10. Therefore, learned counsel for the appellant has sought for re-assessment of the compensation. 10. So far as the appellant in M.V.C.No.321/2012 is concerned, it is submitted that the appellant was working in a network company and was earning a sum of Rs.7,990/- per month and he has suffered fracture of right femur and ligament tear of the right knee. He was inpatient for 18 days, aged about 26 years and therefore, there shall be re-assessment of the compensation. 11. Per contra, learned counsels appearing for the respondents submit that the compensation awarded by the tribunal in all these three matters is proper and correct and there is no need of re-assessment of the same. They have defended the impugned judgment and have sought for dismissal of the appeals. 12. The fact that there was an accident involving in the canter owned by respondent No.1, insured by respondent No.2, which hit the motor cycle ridden by the appellants from the behind and resulting in the injuries is not in dispute. Though the initial contention was taken up by the insurance company denying its liability on the ground that there were violation of the terms and conditions of the policy, such a contention was not accepted by the tribunal and there is no appeal by the insurance company in that regard. Therefore, the question regarding the liability has attained finality. 13. So far as M.V.C.No.318/2012 is concerned, the appellant M.K.Sharath has approached this court in M.F.A.No.7451/2015. A perusal of the records would show that the appellant having failed to establish that he was earning Rs.6,000/- per month, the tribunal adopted the wages that are being paid under the NAREGA, which was Rs.181/- per day during the relevant period. Therefore, it held that the notional income of the appellant is Rs.5,430/-p.m. By adopting the said notional income, it calculated the compensation amount by holding that there is a disability of 26%. It is pertinent to note that the testimony of PW4 shows that there is a whole body disability of 26% on account of the fracture of right femur, fracture right ulna, facture of right clavicle and right radius. On careful perusal of the medical records produced, this court does not wish to interfere in the disability assessed by the tribunal. 14. The tribunal has awarded a sum of Rs.10,136/-towards the loss of income during the laid up period. On careful perusal of the medical records produced, this court does not wish to interfere in the disability assessed by the tribunal. 14. The tribunal has awarded a sum of Rs.10,136/-towards the loss of income during the laid up period. Considering the nature of the injuries suffered by the appellant as mentioned above and as stated by PW4, it can safely be said that the appellant was unable to resume his work atleast for a period of 6 months. Therefore, considering the income of the appellant at an approximate of Rs.5,400/- per month, the loss of income during the laid up period is calculated as (Rs.5,400x6) Rs.36,400/-. The appellant was inpatient for 56 days as per medical records. This would inevitably result in the requirement of attendant charges, conveyance, nourishment etc. A sum of Rs.5,600/- awarded by the tribunal being on the lower side, the same is enhanced to Rs.40,000/-. 15. The tribunal has awarded a sum of Rs.20,000/-under the head of pain an suffering and the same is enhanced to Rs.45,000/-. The compensation under the head of loss of amenities in life also requires to be enhanced to Rs.30,000/- from Rs.20,000/- awarded by the tribunal. PW4 has stated that there is need for further surgery on account of the implants. Hence, a sum of Rs.25,000/- is awarded to the appellant under this head, which shall not carry any interest. The compensation awarded under the head medical expenses does not require any interference by this court. Therefore, the appellant is entitled for a additional compensation of Rs.1,20,655/- under following heads: A Medical expenses Rs.5,41,038/- B Lay off compensation Rs.36,400/- C Attendant charges, conveyance and nourishment Rs.40,000/- D Loss of income Rs.2,88,007/- E Pain and Sufferings Rs.45,000/- F Loss of amenities in future life Rs.30,000/- G Future medical expenses Rs.25,000/- Total compensation Rs.10,05,445/- Compensation awarded by tribunal Rs.8,84,780/- Total enhanced compensation Rs.1,20,665/- 16. So far as M.V.C.No.319/2020 is concerned, the appellant herein is before this court in M.F.A.No.7151/2015. A perusal of the records would show that the appellant viz., M.S.Chandru had suffered fracture of femur. He was inpatient for 6 days and he was working as a writer in a transport company. He was aged 25 years. The injuries were treated with implants and it is his case that there being fracture of ulna and fracture of right radius, definitely there is functional disability to him. He was inpatient for 6 days and he was working as a writer in a transport company. He was aged 25 years. The injuries were treated with implants and it is his case that there being fracture of ulna and fracture of right radius, definitely there is functional disability to him. The writing being of importance for his profession, the tribunal is not justified in denying the income under the head of loss of future income due to disability. It is pertinent to note that though there is a salary certificate issued as per Ex.P18, the employer is not examined, but it can safely be held that he was a writer in a transport company and there is functional disability. PW4 who assessed the disability states that there is a physical disability of 15% to the whole body. It is pertinent to note that the functional disability cannot be assessed by the medical expert and in umpteen numbers of judgments; it has been held that the Doctors or medical practitioners can say about functional disability suffered by a person and assessment of the functional disability is to be done by the tribunals. In view of the same, the functional disability of the appellant being a writer in a transport company has to be held at 8%. 17. There being no other acceptable evidence in respect of the income, a notional income of Rs.6,500/- is taken, considering the fact that the document produced by the appellant itself show the income of Rs.6,121/. Hence, the loss of income due to disability by applying the multiplier of 17 is assessed at Rs.1,06,000/- (Rs.6,500x12x8%x17). 18. The tribunal has not awarded any compensation under the head of loss of income during laid up period and therefore, considering the laid up period to be three months, a sum of Rs.19,500/- is awarded under this head. 19. The appellant was inpatient for 6 days and therefore, a sum of Rs.6,000/- is awarded under the head of conveyance expenses, attendant charges, nourishment etc. 20. The tribunal has awarded a sum of Rs.20,000/-under pain and suffering and the same is enhanced to be Rs.50,000/-. 21. The tribunal has awarded a sum of Rs.20,000/-under the head of loss of amenities in life, same is enhanced to Rs.30,000/-. 20. The tribunal has awarded a sum of Rs.20,000/-under pain and suffering and the same is enhanced to be Rs.50,000/-. 21. The tribunal has awarded a sum of Rs.20,000/-under the head of loss of amenities in life, same is enhanced to Rs.30,000/-. PW4 has stated that the petitioner needs a further surgery for the removal of the implants and therefore, a sum of Rs.25,000/- is awarded under the head of future medical expenses which would not carry any interest. There is no need for enhancement of the medical expenses awarded by the tribunal. Hence, the appellant is entitled for a total an additional compensation of Rs.1,95,001/- under following heads: a Medical expenses Rs.61,171/- b Attendant charges Rs.6,000/- c Pain and Suffering Rs.50,000/- d Loss of amenities Rs.30,000/- e Loss of income Rs.1,06,000/- f Loss of income during laid up period Rs.19,500/- G Future medical expenses Rs.25,000/- Total Rs.2,97,671/- Compensation awarded by tribunal Rs.1,02,670/- Enhanced compensation Rs.1,95,001/- 22. So far as M.V.C.No.321/2012 is concerned, the petitioner herein is the appellant in M.F.A.No.7452/2015. A perusal of the records would reveal that the appellant was aged 25 years working as a cable operator at Hanumanthanagara, Bengaluru and he has suffered fracture of right femur and tearing of ligament of the right knee. As a result, he was inpatient for 18 days. A perusal of the records would reveal that there is no acceptable documentary evidence regarding his income. The tribunal holds that in the absence of the such evidence that he was working in J.K.Network, it did not accept the salary certificate of the appellant, which is at Ex.P25. However, it held that there is no functional disability which has resulted in depletion of his income and as such, rejected the claim on account of the disability. 23. It is pertinent to note that the appellant having stated that he was working in J.K.Networks at Hanumanthanagara and had produced the documentary evidence as per Ex.P25 it can safely be said that he was working in Network company as an employee. Definitely in case, there is a fracture of femur and fracture of tearing of the ligament, it results in any person involved in manual work with disability. Therefore, the observations of the tribunal are not sustainable. The employer of the appellant having not been examined, the salary certificate at Ex.P25 is not established as required under law. Definitely in case, there is a fracture of femur and fracture of tearing of the ligament, it results in any person involved in manual work with disability. Therefore, the observations of the tribunal are not sustainable. The employer of the appellant having not been examined, the salary certificate at Ex.P25 is not established as required under law. Therefore, the notional income of the appellant has to be considered. The guidelines issued by KSLSA for the purpose of settlement of the disputes before the Lok Adalat prescribed a notional income of Rs.7,000/- per month for the year 2011. In umpteen numbers of judgments, this court has held that the guidelines issued by the KSLSA are in general conformity with the wages fixed under the Minimum Wages Act. Therefore, the notional income of the appellant is taken at Rs.6,500/- per month. 24. PW4 has stated that there is a disability of 21%. Considering the nature of injuries suffered by the appellant, the said physical disability of 21% would definitely result in functional disability and in the considered opinion of this court, the same would be 8%. Hence, the loss of income due to disability is calculated as (Rs.6,500x12x8%x17) = Rs.1,06,000/-. 25. Consequently, the loss of income during laid up period is considered for a period of three months and the same is assessed at (Rs.6,500x3) Rs.19,500/-. 26. The tribunal has awarded a sum of Rs.1,800/-under the head of attendant chares and considering the fact that the appellant was inpatient for 18 days, the same is enhanced to Rs.15,000/-, which would cover the conveyance and nourishment also. The tribunal has awarded a sum of Rs.20,000/- under the head of pain and suffering and the same is enhanced to Rs.30,000/-. The compensation under the head of loss of amenities in life is enhanced to Rs.25,000/- from Rs.20,000/-. PW4 has stated that the fracture of the right femur has resulted in a surgery with implants being inserted. Therefore, a sum of Rs.25,000/- is awarded under the head of future medical expenses, which would not carry any interest. In the result, the appellant is entitled for an additional compensation of Rs. PW4 has stated that the fracture of the right femur has resulted in a surgery with implants being inserted. Therefore, a sum of Rs.25,000/- is awarded under the head of future medical expenses, which would not carry any interest. In the result, the appellant is entitled for an additional compensation of Rs. 1,78,699/- under following heads: M.V.C.No.321 /2012 a Medical expenses Rs.1,30,659/- b Attendant charges Rs.15,000/- c Pain and Suffering Rs.30,000/- d Loss of amenities in future life Rs.25,000/- e Loss of income Rs.1,06,000/- f Loss of income during laid up period Rs.19,500/- g Future medical expenses Rs.25,000/- Total Rs.3,51,159/- Compensation awarded by tribunal Rs.1,72,460/- Enhanced compensation Rs.1,78,699/- 27. For the aforesaid reasons, all these appeals are to be allowed in part. Hence, the following: ORDER (i) M.F.A.No.7451/2015 (M.V.C.No.318/2012) is allowed in part. The appellant is entitled for a compensation of Rs.1,20,665/- in addition to what has been awarded by the tribunal along with interest at 6% per annum from the date of petition till its deposit before the tribunal excluding the interest on future medical expenses. (ii) M.F.A.No.7151/2015 (M.V.C.No.319/2012) is allowed in part. The appellant is entitled for a compensation of Rs.1,95,001/- in addition to what has been awarded by the tribunal along with interest at 6% per annum from the date of petition till its deposit before the tribunal excluding the interest on future medical expenses. (iii) M.F.A.No.7452/2015 (M.V.C.No.321/2012) is allowed in part. The appellant is entitled for a compensation of Rs.1,78,699/- in addition to what has been awarded by the tribunal along with interest at 6% per annum from the date of petition till its deposit before the tribunal excluding the interest on future medical expenses. (iv) Rest of the order passed by the tribunal regarding deposit and release remains unaltered. (v) The respondent No.2 - insurance company is directed to deposit the compensation amount as required under Section 368(3) of the Motor Vehicles Act.