IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR MISCELLANEOUS FIRST APPEAL NO.4261 OF 2011 C/W MISCELLANEOUS FIRST APPEAL NO.2702 OF 2011 (MV) BETWEEN:
THE DIVISIONAL MANAGER THE NATIONAL INSURANCE CO. LTD, CHIGATERI MERCHANTILE BUILDING CHAMARAJPET, DAVANAGERE REP. BY THE MANAGER NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, SUBHARAM COMPLEX 2ND FLOOR, 144, M.G.ROAD BANGLAORE-01 … APPELLANT (BY SHRI. M NARAYANAPPA, ADVOCATE) AND:
1. SRI. H.K. RAMESH S/O D.KARIYAPPA AGED ABOUT 39 YEARS BUSINESS, R/O.MCC ‘A’ BLOCK DAVANAGERE CITY NOW R/O.DUMMI VILLAGE HOLALKERE TALUK 2. SRI. V. GONAPPA @ V. GANESHAPPA S/O VENKATAPPA R/O JALINAGARA NEAR CHURCH NO.1027/5, 2ND MAIN DAVANAGERE CITY (OWNER OF BIKE BEARING REGN NO.KA-17-Y-2464) … RESPONDENTS (BY SHRI. S.C. VIJAYAKUMAR, ADVOCATE NOTICE TO R.2 – HELD SUFFICIENT V/O/DTD: 08.01.2016) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:23.12.2010 PASSED IN MVC NO.510/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HOLALKERE, AWARDING A COMPENSATION OF Rs.2,22,857/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA NO.2702/2011 BETWEEN:
H.K. RAMESH S/O KARIYAPPA AGED ABOUT 38 YEARS OCCUPATION- BUSINESS R/O DAVANAGERE CITY NOW R/O.DUMMI VILLAGE HOLALKERE TALUK CHITRADURGA DISTRICT … APPELLANT (BY SHRI. S.C. VIJAYAKUMAR, ADVOCATE) AND:
1. V. GONAPPA @ V. GANESHAPPA S/O VENKATAPPA AGED ABOUT 45 YEARS R/O 1027/5, 2ND MAIN JALINAGARA, NEAR CHURCH DAVANAGERE CITY 2. THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD, CHIGATERI MERCHANTILE BUILDING CHAMARAJPET, DAVANAGERE … RESPONDENTS (BY SHRI. M.NARAYANAPPA, ADVOCATE FOR R2; R1-SERVED) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:23.12.2010 PASSED IN MVC NO.510/2009 ON THE FILE OF CIVIL JUDGE (SR.DN) & ADDITIONAL MACT, HOLALKERE, PARTLY ALLOWING THE CLAIM PETITON FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFA’s COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT MFA No.4261/2011 is presented by the Insurer challenging the liability and MFA No.2702/2011 is presented by the claimants seeking enhancement of compensation by challenging judgment and award dated 23.12.2010 in MVC No.510/2009 on the file of Senior Civil Judge and Additional MACT, Holalkere.
2. Heard Shri S.C. Vijayakumar, learned advocate for the claimants and Shri M. Narayanappa, learned advocate for the Insurer.
3. Appellant – H.K. Ramesh was riding his motor cycle and dashed against offending motor cycle bearing No.KA-17-Y-2464, which was coming from the opposite side. He sustained grievous injuries i.e., fracture of lower end of femur of left leg and fracture of left clavicle bone. He was treated as in-patient for 12 days. He filed the instant claim petition seeking compensation of Rs.10,20,000/-. Learned Tribunal, on consideration of material on record has awarded a sum of Rs.2,22,857/-.
4. Learned advocate for the claimants submitted that Doctor-PW2 has stated in his evidence that appellant has suffered 25% of disability, where as Tribunal has computed compensation by taking disability factor at 15%. The accident is of the year 2009. Therefore, income of the claimant at the material point of time in the absence of any other evidence ought to have been considered as Rs.5,000/-. Accordingly, he prays for enhancement of compensation.
5. Learned advocate for the Insurer submits that the learned Tribunal has failed to notice the negligence on the part of claimant inasmuch as both the vehicles being driven on the opposite side have met with an accident. Accordingly, he prays that the claim petition be dismissed by setting aside the impugned judgment.
6. I have carefully considered the rival contentions and perused the records.
7. Claimant, PW.1 has stated in his evidence that rider of the offending vehicle was driving his vehicle in a rash and negligent manner and dashed against the claimant’s motor cycle. Nothing significant is extracted in the cross-examination. PW.2 is not the treating Doctor. He has issued disability certificate-Ex.P33 and recorded that claimant has suffered disability of 25%. In the circumstances, the whole body disability works out to 8.3%, whereas the Tribunal has taken the same at 15% and accordingly calculated the compensation. In respect of two fractures, a sum of Rs.45,000/- has been awarded towards pain and agony. For loss of income, rest, nourishment and attendant charges Rs.2,000/- has been awarded. Medical expenses has been paid in full.
8. On behalf of the Insurer, only an officer of the Insurance Company has been examined and no material has been placed before the learned Tribunal to show that the claimant was also negligent.
9. Learned Tribunal has reckoned the disability factor as 15% as against 8.3% and monthly income of the claimant as Rs.3,000/- per month. Learned advocate for the claimant prays that the monthly income ought to have been considered as Rs.5,000/-. Since, the disability factor has been taken at 15% as against 8.3%, the earning capacity works out to Rs.6,000/- which is more than the prayer now made. In the circumstances, both appeals fail and they are accordingly dismissed.
Amount in deposit shall be transmitted to the Tribunal for disbursement in accordance with law.
Insurer shall deposit the award amount with interest within eight weeks from the date of receipt of a copy of this order.
Sd/- JUDGE AV