M S VEERABHADRAPPA v. RAJANNA

2. RAJANNA S/O CHANDRAPPA AGED ABOUT 23 YEARS R/O MUDDA RANGANAHALLI KASABA HOBLI, ARASIKERE TALUK HASSAN DISTRICT – 573 103 DRIVER OF VEHICLE NO.KA-13-K-9070. NATARAJ S/O JAGANNATHA AGED ABOUT 30 YEARS R/O J C PURA, KANAKATTE HOBLI ARSIKERE TALUK HASSAN DISTRICT – 573 103 OWNER OF VEHICLE NO.KA-13-K-9070. 2

3. THE NEW INDIA ASSURANCE COMPANY HEMA MANSION, GANDHI BAZAAR HASSAN. ...RESPONDENTS

(BY SRI: MAHESH R UPPIN, ADVOCATE FOR RESPONDENT NO.2, SRI: M NARAYANAPPA, ADVOCATE FOR RESPONDENT NO.3, NOTICE TO RESPONDENT NO.1 IS DISPENSED WITH VIDE ORDER DATED 29.7.2010) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 14.11.2006 PASSED IN MVC NO.49/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND ADDITIONAL CJM, MEMBER, ADDITIONAL MACT, ARSIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN MFA.CROB.NO.108/2O10: BETWEEN: NATARAJ S/O JAGANNATHA AGE: 33 YEARS R/O J C PURA, KANAKATTE HOBLI ARSIKERE TALUK HASSAN DISTRICT. (BY SRI: MAHESH R UPPIN, ADVOCATE) ...CROSS OBJECTOR AND:

M S VEERA BHADRAPPA S/O SOMASHEKARAPPA AGE: 31 YEARS COOLIE WORK R/O MURUNDI VILLAGE ARSIKERE HASSAN DISTRICT.

RAJANNA S/O CHANDRAPPA AGE: 26 YEARS R/O MUDDA RANGANAHALLI KASABA HOBLI ARSIKERE TALUK HASSAN DISTRICT. 3

THE NEW INDIA ASSURANCE COMPANY HEMA MANSION, GANDHI BAZAR HASSAN. ...RESPONDENTS (BY SRI: G RAVISHANKAR FOR A V G ASSOCIATES, ADVOCATES FOR RESPONDENT NO.1, SRI: M NARAYANAPPA, ADVOCATE FOR RESPONDENT NO.3, NOTICE TO RESPONDENT NO.2 IS DISPENSED WITH VIDE ORDER DATED 31.10.2012) THIS MFA.CROB. IS FILED UNDER ORDER XLI RULE 22 OF THE CODE OF CIVIL PROCEDURE READ WITH SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED

14.11.2006 PASSED IN MVC.NO.49/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN) AND ADDITIONAL CJM, ADDITIONAL MACT, ARSIKRE, AWARDING A COMPENSATION OF Rs.82,200/- WITH INTEREST AT 6% PER ANNUM FROM THE DATE OF PETITION TILL PAYMENT. THE MISCELLANEOUS FIRST APPEAL AND MFA.CROB COMING ON FOR FINAL HEARING THIS DAY, N.K.PATIL, J., DELIVERED THE FOLLOWING: J U D G M E N T The appeal by the injured claimant and the Cross Objection by the owner of the offending vehicle arise out of the same judgment and award dated 14th November 2006 passed in MVC No.49/2004 on the file of the Civil Judge (Sr.Dn.) and Addl. MACT, Arsikere (for short, ‘the Tribunal’). By the impugned judgment and award, the Tribunal has awarded compensation of Rs.82,200/- to the claimant under different heads with interest at 6% p.a. from the date of petition till the date of realisation, with a direction 4 to the insurer to pay the compensation to the claimant and recover the same from the cross objector/owner, on account of the injuries sustained by him in a road traffic accident. The appeal is filed by the claimant contending that quantum of compensation awarded by the Tribunal is inadequate and it requires enhancement and the Cross Objection is filed by the owner of the offending vehicle contending that the quantum of compensation awarded is on the higher side and is liable to be reduced.

2. The brief facts of the case on hand are that the claimant presented a claim petition under Section 166 of the MV Act before the Tribunal against the driver, owner, and insurer of the offending vehicle contending that on 29.6.2003 at about 11 a.m. when he was proceeding as a pillion rider in a bike bearing registration No.KA-13-L-2929, near Mudda Ranganahalli Village on Geejihalli to Murundi road, the rider of another bike bearing registration No.KA-13-K-9070 rode the same in a rash and negligent manner and dashed against the bike in which the claimant was proceeding and as a result which, the claimant sustained 5 grievous injuries. It is also his contention he was admitted in the hospital for a period of one month and that the toe of his right leg was amputated and that he spent considerable sum towards conveyance, medical expenses, nourishing food and attendant charges.

3. It is the further case of the claimant that he was aged 25 years at the time of accident and that he was a Coolie by profession and was hale and healthy prior to the accident.

The said matter had come up for consideration before the Tribunal and the Tribunal, in turn, on careful evaluation of the oral and documentary evidence available on file, allowed the same in part, awarding compensation of Rs.82,200/- with interest at 6% p.a. from the date of petition till the date of deposit. Being dissatisfied with the impugned judgment and award passed by the Tribunal, both the claimant and the owner of the offending vehicle felt necessitated to present the appeal and the cross objection seeking the reliefs as stated supra. 6

Learned counsel for the claimant, at the outset, submitted that the Tribunal has erred in not awarding adequate compensation towards conveyance, loss of income during laid-up period and that no compensation is awarded by the Tribunal towards loss of future income. He also submits that due to the injuries suffered by the claimant in the road traffic accident, the toe of right leg of the claimant has been amputated and he is not in a position to work as effectively as he was doing prior to the accident and he cannot continue to do the skilled work and that this aspect of the matter has not been considered by the Tribunal. He further submits that the Tribunal has also not considered the duration of treatment undergone by the claimant and the fact that the claimant has undergone a surgery for amputation of the toe of his right leg and therefore, the impugned judgment and award is liable to be modified by awarding just and reasonable compensation to the claimant.

As against this, learned counsel for the cross- objector-owner of the offending vehicle, contended that 7 the claimant has suffered only minor injuries and having regard to the nature of injuries, the compensation awarded by the Tribunal is on the higher side and is liable to be reduced. The Tribunal also failed to consider the fact that the Doctor has examined the claimant on 27.9.2003 and the Wound Certificate is issued on 27.7.2003 much before the date of examination and that the claimant has not suffered any amputation and has given false evidence before the Tribunal. Therefore, the judgment and award passed by the Tribunal is liable to be modified.

Per contra, the learned counsel appearing for the insurer submitted that the Tribunal has erred in directing the insurer to pay the compensation and recover the same from the owner of the offending vehicle and the same cannot be sustained and is liable to be modified.

After careful consideration of the submission made by the learned counsel for the parties and on perusal of the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration in the instant appeal and the cross objection is; 8 “Whether the quantum of compensation awarded by the Tribunal is just and reasonable?”

The occurrence of the accident and the resultant injuries sustained by the claimant are not in dispute. Further, it is not in dispute that the claimant was aged 25 years at the time of the accident and he was a Coolie by profession. As per the evidence of PW-2-Doctor, the claimant has sustained amputation of toe of his right leg, but he has not assessed percentage of disability, which does not mean that there is no disability suffered by the claimant. Having regard to the nature of injuries sustained by the claimant and the evidence of the Doctor, we deem it appropriate to assess the disability at 10% to the whole body and as the accident has occurred on 29.6.2003, the income of the claimant is assessed at Rs.3,000/- p.m. to meet the ends of justice. In view of the age of the claimant, the appropriate multiplier is '18'. Further the claimant must have spent reasonable amount towards conveyance, nourishing food and attendant charges. In future, the claimant may not be able to work as effectively 9 as he was working prior to the accident and he might have taken rest at least for a period of three months. In view of the injuries suffered by him in the accident, discomfort and unhappiness persists throughout his life, which requires to be compensated by awarding reasonable compensation towards loss of amenities and loss of future income. Considering all these aspects, a sum of Rs.10,000/- is awarded towards conveyance, nourishing food and attendant charges, Rs.9,000/- towards loss of income during laid-up period (at the rate of Rs.3,000/- per month for three months), Rs.20,000/- towards loss of amenities, and Rs.64,800/- towards loss of future income (Rs.3,000/- x 12 x 18 x 10%).

Further, the Tribunal is justified in awarding a sum of Rs.25,000/- towards pain and sufferings, Rs.8,600/- towards medical expenses and therefore, it does not call for interference by this Court.

In all, the claimant is entitled for compensation of Rs.1,37,400/-, the break-up of which is as follows: 10 Pain and sufferings Loss of amenities Medical expenses Conveyance, nourishing food and attendant charges Loss of income during laid-up period Loss of future income Total Rs.25,000/- Rs.20,000/- Rs.8,600/- Rs.10,000/- Rs.9,000/- Rs.64,800/- Rs.1,37,400/- There will be enhancement of Rs.55,200/-.

The ground taken by the Cross-objector/owner that on the basis of the false evidence, the disability is assessed and compensation awarded to the claimant cannot be accepted for the reason that nothing is elicited in the evidence of the Doctor. Except taking a ground that the entire claim is fraud and misrepresentation, no credible documentary or oral evidence is produced to substantiate the same.

The finding of the Tribunal insofar as the direction to the insurer to pay the compensation and recover the same from the cross objector/owner is concerned, we are 11 of the view that it is a finding of fact recorded by the Tribunal and it does not call for interference.

For the foregoing reasons, the Cross Objection filed by the owner of the offending vehicle is dismissed as being devoid of merits. The Cross objection is also not maintainable in view of non-compliance of Section 173(1) of the Motor Vehicles Act. The appeal filed by the claimant is allowed in part. The impugned judgment and award dated 14th November 2006 passed in MVC No.49/2004 on the file of the Civil Judge (Sr.Dn.) and Addl. MACT, Arsikere, is hereby modified, awarding compensation of Rs.55,200/- with interest at 6% p.a. from the date of petition till the date of realisation, in addition to the compensation awarded by the Tribunal. The Insurer is directed to deposit the remaining compensation amount with interest within three weeks from the date of receipt of a copy of this judgment and award. 12 The enhanced amount with interest shall be released in favour of the claimant, on deposit of the same by the insurer. It is needless to clarify that the insurer is at liberty to recover the same from the owner of the offending vehicle- Cross Objector, in accordance with law, if they are so advised or need arise. Draw the award accordingly. Sd/- JUDGE Sd/- JUDGE KM