IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE N K SUDHINDRARAO MFA No.9812/2010 c/w MFA No.9813/2010 (MV) MFA No.9812/2010:
BETWEEN:
R.Rajendran, S/o S.Ramaswamy Goundar, 43 years, R/at No.932/A, 8th Main, 8th Cross, Prakash Nagar, Bengaluru – 21. …Appellant (By Sri R.Chandrashekar, Advocate) AND:
1. Shekar S/o Devaraj, Major, R/at No.114, Sonnappanahalli, Bettahalasur Cross, Bengaluru North -562157.
2. Bajaj Allianz Gen. Ins. Co. Ltd., No.31, Ground Floor, TBR Tower, Adjacent to Jain College, 1st Cross, New Mission Road, Bengaluru – 27 Rep. by its Manager. ... Respondents (By Sri P.B.Raju, Advocate for R.2 Notice to R.1 is held sufficient v/o dated 12.02.2015) This MFA is filed under Section 173(1) of M V Act against the judgment and award dated 26.06.2010 passed in MVC No.7556/2008 on the file of II Additional Judge, Court of Small Causes, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
MFA No.9813/2010:
BETWEEN:
S.Iyyappan S/o Late Swaminathan, 30 years, C/o Rajendran, No.932/A, 8th Main, 8th Cross, Prakash Nagar, Bengaluru – 21. …Appellant (By Sri R.Chandrashekhar, Advocate for M/s. Lawyers Net) AND:
1. Shekar S/o Devaraj, Major, R/at No.114, Sonnappanahalli, Bettahalasur Cross, Bengaluru North -562157.
2. Bajaj Allianz Gen. Ins. Co. Ltd., No.31, Ground Floor, TBR Tower, Adjacent to Jain College, 1st Cross, New Mission Road, Bengaluru – 27 ... Respondents (By Sri P.B.Raju, Advocate for R.2 Notice to R.1 is held sufficient v/o dated 17.12.2014) This MFA is filed under Section 173(1) of M V Act against the common judgment and award dated 26.06.2010 passed in MVC No.7557/2008 on the file of II Additional Judge, Court of Small Causes, Member, MACT, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These appeals coming on for Final Hearing this day, the Court delivered the following:
JUDGEMENT Both appeals are filed against the common judgment and award dated 26.06.2010 passed in MVC Nos.7556/2008 and 7557/2008 on the file of II Additional Judge, Court of Small Causes, Bengaluru awarding a compensation of Rs.2,82,000 with interest @ 6% p.a. from the date of petition till the date of deposit with the Tribunal in MVC No.7556/2008 (MFA No.9812/2010) and awarding a compensation of Rs.7,76,400 with interest @ 6% p.a. from the date of petition till the date of deposit with the Tribunal in MVC No.7557/2008 (MFA No.9813/2010).
2. The brief facts of the case are that:
On 19.07.2008 at about 6.50 p.m. when the petitioners were proceeding on motor cycle bearing No.KA02/EF.5437 as rider and pillion rider respectively on the left, at that time, a mini lorry/LGV bearing No.KA02-B.6862 came in a rash and negligent manner dashed against their bike from back side. Due to the impact, they fell down and sustained injuries. Immediately, they were shifted to Prestine Hospital, Bengaluru and took treatment as inpatients.
3. Because of the said accident, the claimant - R.Rajendran in MVC No.7556/2008 (MFA No.9812/2010) suffered the following injuries:
(i) Multiple rib fractures on right side chest with tension pneumothorax.
(ii) Fracture clavicle right.
(iii) Fracture right sacro iliac joint relatively un- displaced.
(iv) Fractures both superior and inferior public rami right pelvis.
(v) Non conclusive head injury.
(vi) Fracture orbit (right) undisplaced.
(vii) Grade I renal injury (contusion) with perinenphric Haemotoma.
4. The claimant – S.Iyyappan in MVC No.7557/2008 (MFA No.9813/2010) suffered the following injuries:
(i) Crush injury right leg with traumatic amputation of leg (right) at mid 1/3rd and lower 1/3rd junction.
(ii) Bicondylar fracture right tibia.
(iii) Fracture inferior public rami pelvis (left).
(iv) Mandibular fracture condylar region (left).
(v) Lacerated wound over scalp on vertex.
(vi) Acute respiratory distress syndrome.
(vii) Fracture of left angle of the mandible with greenstick fracture of right body of the mandible.
5. The Tribunal after taking into consideration of the facts and circumstances of the case and on going through the material on record, awarded compensation fastening liability on the Insurance Company as under:
MFA No. MVC No./ Award amount
6. Being aggrieved by the judgment and award dated 26.06.2010 passed by the II Additional Judge, Member, MACT, Bengaluru (SCCH-13), the claimants/petitioners have preferred these appeals.
7. In so far as the petitioner in MVC No.7556/2008 (MFA No.9812/2010) is concerned, the wound certificate and discharge summary are produced and marked as Ex.P.5 and P.6 respectively. The monthly income is stated as Rs.20,000/-. The doctor who has examined the petitioner has assessed the disability at 15% to the whole body. On perusal of the compensation granted to the petitioner in MVC No.7556/2008 (MFA No.9812/2010), I find that the compensation under the head “Future happiness” is over assessed and “Loss of earning during laid up period” is considered at 20,000/-. However, the compensation under the head “Loss of future income” is not considered by the Tribunal. The monthly income to be considered at Rs.6,000/- per month and disability percentage to the whole body is 15%. Thus, out of the total compensation granted, the compensation granted under head ‘Future happiness’ at Rs.60,000/- was not necessary and is liable to be removed. Similarly, “Loss of earning during the laid up period” is reduced from 20,000/- to 6,000/- and “Loss of future income” is considered as per the factors made above at Rs.1,51,200/-. As a result, the total compensation entitled by the claimant in MVC No.7556/2008 (MFA No.9812/2010) is Rs.3,61,200/-.
8. In so far as the petitioner in MVC No.7557/2008 (MFA No.9813/2010) is concerned, his monthly income is considered at Rs.4,000/- per month, “Loss of amenities” is considered at Rs.75,000/-, “Pain and suffering” is considered at Rs.50,000/-, “Medical expenses” is considered at Rs.3,70,000/-, “Loss of future earning” is calculated at Rs.2,30,400/- considering the monthly income at Rs.4,000/- per month and disability at 30% to the whole body. In the circumstances, the claimant has lost the leg below the knee level. Since the claimant has suffered loss of income and also future earning taken by the Tribunal is meager, monthly income should have been considered at Rs.6,000/- per month and disability of 30% may be accepted, in which event, it amounts to Rs.3,45,600/- and pain and suffering deserves to be enhanced by Rs.1,15,200/- and it comes to Rs.1,65,200/-. Loss of amenities is taken at Rs.35,000/-.
9. I am of the considered finding that the future earning and loss of amenities are under assessed, which needs to be enhanced to Rs.3,45,600/-, loss of amenities of Rs.75,000/- which requires to be enhanced to Rs.1,10,000/-. Thus, the compensation awarded by the learned member is under assessed.
10. In so far as the liability is concerned, the respondent No.1 in the appeal - Shekar who is said to be the owner of mini lorry is directed to pay compensation amount considering the defect in nature of driving license possessed by the driver of the lorry as on the date of the accident and it is stated that he was not possessing the transport license or endorsement to that effect nor endorsement granting permission thereon. The question involved in these appeals is no more res-integra in view of the decision of the Hon’ble Apex Court in the case of Mukund Dewangan –vs- Oriental Insurance Co. Ltd. reported in AIR 2017 SC 3668. I find that Light Motor Vehicle considering the weight and capacity, it does not absolve liability of the Insurance Company and hence, under these appeals, the Insurance Company – respondent No.2 is directed to pay compensation within one month from the date of receipt of the certified copy of the judgment. Accordingly, I pass the following:
ORDER 1) MFA.Nos.9812/2010 and 9813/2010 are hereby allowed in part. Judgment and Award dated 26.06.2010 passed in M.V.C Nos.7556/2008 and 7557/2008 by the 2nd Additional Judge, Member, MACT, Bengaluru (SCCH-13) is modified by awarding compensation of Rs.3,61,200/- (MFA No.9812/2010) and Rs.2,00,000/-
(MFA No.9813/2010) including the compensation awarded by the Tribunal.
2) Insurance Company is directed to deposit the compensation amount including the enhanced amount, excluding the amount if already deposited, within a period of one month from the date of receipt of this Judgment and transfer the amount in deposit to the trial Court.
Sd/- JUDGE NBM