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2009 Supreme(Kar) 795
2010(1) Kar. L.J. 310
IN THE HIGH COURT OF KARNATAKA AT BAN GALORE
AN. VENUGOPALA GOWDA, J.
N.D. TmMMEGOWDA
v
B.N. KEMPEGOWDA AND ANOTHER
Miscellaneous First Appeal No. 10769 of 2005 (MV) connected with Miscellaneous First Appeal No. 10737 of 2005 (MV).
Decided On : 17th November, 2009
Sri K.R. Ramesh, Advocate for Appellant in M.F.A No. 10769 of 2005 and for Respondent-1 in M.F.A No. 10737 of 2005;
Sri A.N. Krishnaswamy, Advocate for Appellant in M.F.A No. 10737 of 2005 and for Respondent-2 in M.FA No. 10769 of 2005:
Notice to Respondent-1 is dispensed with in M.F.A. No. 10769 of 2005;
Respondent-2 served in M.F.A. No. 10737 of 2005.
Headnote:MOTOR VEHICLES ACT, 1988 - Section 168: [A.N. Venugopala Gowda, J] Compensation - Claimant was pillion rider - Claim against owner of motor cycle and its insurer - Doctor who examined the claimant found various injuries - Open reduction and internal fixation was done for fracture of right zygoma - Bifrontal craniotomy and ACE carpeting was done - Accused suffered permanent disability at 60% for right upper limb and for whole body, the permanent disability is 30% - Held, Claimant entitled to total compensation of Rs. 2,76,400/- [Rs.40,000/- towards pain and sufferings; Rs.9,000/- towards loss of income during laid up period at Rs.3,000/- p.m. for 3 months; Rs.20,000/- towards loss of amenities; Rs.86,400/- towards loss of future income on account of permanent disability at 15% (Rs.3000x12x16/15); Rs.1,06,000/- towards medical expenses and Rs.15,000/- towards incidental expenses such as conveyance charges, extra nourished diet and attendant charges] under various counts as against Rs.2,74,144/- assessed by Tribunal.
MFA No. 10769 of 2005 is by the claimant for enhancement of the compensation amount. MFA No. 10737 of 2005 is by the Insurance Company questioning the award passed by the Motor Accident Claims Tribunal in favour of the claimant at Rs.2,74,144/- with interest at 8% p.a.
2. For the sake of convenience, the parties would be referred to with reference to their ranks in the Motor Accident Claims Tribunal.
Claimant instituted a claim petition under Section 166 of the Motor Vehicles Act, 1988 ('Act' for short) claiming compensation against the owner of Hero Honda motor cycle KA-06-Q.9108 and its insurer (appellant in MFA No. 10737 of 2005). It was contended that, he was proceeding on a motor cycle as a pillion rider and the rider of the motor cycle dashed the vehicle against the road side banyan tree, resulting in sustaining of injuries. The motor cycle was duly insured. The claim petition was contested by the Insurance Company. Based on the pleadings of the parties, the following issues were framed:
(i) Whether the claimant proves that the accident occurred on 9-6-2003 due to rash and negligent driving of the vehicle bearing No. KA-06.Q.9108 by its driver?
(ii) Whether claimant is entitled for compensation? If so to what compensation and from whom?
3. Claimant got himself examined as P.W.1 and examined the doctor who had treated him for the accidental injuries as P.W. 2. Exs. P. 1 to P. 18 were marked. No evidence was led on behalf of the respondents. Considering the rival contentions, the Tribunal has held that the claimant has proved that the accident occurred on 9-6-2003 due to rash and negligent driving of the vehicle bearing No. KA-06.Q.9108 by its rider and the claimant is entitled for awarding of compensation which was determined at Rs.2,74,144/- with interest at 8% p.a. Dissatisfied with the amount awarded, the claimant has preferred M.F.A No. 10769 of 2005. Aggrieved by the award, the Insurance Company has preferred M.F.A No. 10737 of 2005.
4. Heard the learned Counsel on both sides and perused the record.
5. Sri KR. Ramesh, learned Counsel appearing for the claimant contended that, the Tribunal has not correctly appreciated the oral and documentary evidence on record to assess the just compensation to be awarded. He submitted that, the Tribunal has not awarded the full amount spent towards medical and incidental expenses and it has also not determined the income of the claimant at Rs.3,000/- p.m. and also in not awarding any amount towards loss of income during the laid up period. The matter of appreciation of evidence with regard to percentage of permanent disability and all other incident aspects is erroneous. It was contended that, the amount awarded is not just compensation and the claimant is entitled to be awarded much more amount than what has been awarded by the Tribunal.
6. Per contra, Sri AN. Krishnaswamy, learned Counsel for the Insurance Company contended that, the Tribunal has allowed the claimant to commit fraud and misrepresentation on it, to wangle an award by producing fictitious documents and medical bills, in that duplication of medical bills has not been noticed by it. It was also submitted that the awarding of interest at 8% p.a. is much against the decision of this Court in the case of A. Manavalagan v A. Krishnamurthy and Others1, and at any event, the impugned award is excessive and calls for interference.
1. 2004(G) Kar. L.J. 321 (DB) : ILR 2004 Kar. 3268 (DB)
7. In view of the rival contentions, the point for consideration is:
What is the amount of compensation which the claimant is entitled to?
8. Accident having occurred on 9-6-2003 involving motor cycle bearing No. KA-06-Q.9108 in which, the claimant was a pillion rider, is not in dispute. The said motor cycle was dashed against the root of a Banyan tree and thus the accident occurred. Claimant has fallen down and sustained injuries. He was admitted to Manipal Hospital Bangalore, wherein he has taken treatment. Claimant as P.W.1 has deposed regardi
