IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24 TH DAY OF MARCH 2016 BEFORE THE HON BLE MR. JUSTICE RAM MOHAN REDDY

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1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24 TH DAY OF MARCH 2016 BEFORE THE HON BLE MR. JUSTICE RAM MOHAN REDDY MISCELLANEOUS FIRST APPEAL NO.8463/2011 (MV) c/w MISCELLANEOUS FIRST APPEAL NO.6959/2011 (MV) IN MFA NO.8463/2011: BETWEEN: THE UNITED INDIA INSURANCE COMPANY LIMITED, NO.25, 2 ND FLOOR, SHANKARNARAYANA BUILDING, M.G.ROAD, BANGALORE , REP. BY ITS ADMINISTRATIVE OFFICER, SANDEP KUMAR, REGIONAL OFFICE, KRISHI BHAVAN, HUDSON CIRCLE, BANGALORE APPELLANT (By SRI L. SREEKANTA RAO, ADVOCATE) AND 1. RAJANNA, S/O.KARIYAPPA, AGED ABOUT 38 YEARS, R/A GUNDRAGOLIPURA, KASABA HOBLI, NELAMANGALA TALUK GUJJARAPPA K.G., S/O.GUJJARAPPA,

2 2 MAJOR UNIVERSAL PETROL PRIVATE LTD., YELACHEGERE, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT.... RESPONDENTS (By SRI K.V.SHYAMAPRASADA, ADVOCATE FOR R1; V/C/O DT PAPER PUBLICATION IS ACCEPTED IN RESPECT OF R2) THIS MFA FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED PASSED IN MVC NO.4175/2008 ON THE FILE OF VII ADDL. JUDGE, MEMBER MACT-3, BANGALORE AWARDING A COMPENSATION OF RS.2,34,862/- WITH COSTS AND INTEREST AT 6% P.A. IN HIS FAVOUR. IN MFA NO.6959/2011: BETWEEN RAJANNA, S/O KARIYAPPA, AGED ABOUT 38 YEARS, R/AT GUNDRAGOLIPURA, KASABA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT.... APPELLANT (By SRI K.V.SHYAMAPRASADA, ADVOCATE) AND 1. GUJJARAPPA K.G., S/O GUJJARAPPA, MAJOR, UNIVERSAL PETROL PVT. LTD., YELACHEGERE, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT.

3 3 2. M/s UNITED INDIA INSURANCE CO.LTD., REGIONAL OFFICE, KRISHI BHAVAN, 5 TH & 6 TH FLOOR, NRUPATHUNGA ROAD, HUDSON CIRCLE, BENGALURU-1, REP BY ITS MANAGER.... RESPONDENTS (By SRI L.SREEKANTA RAO, ADVOCATE FOR R2; NOTICE TO R1 DISPENSED WITH V/C/O DT ) THIS MFA FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED PASSED IN MVC NO.4175/2008 ON THE FILE OF VII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-3, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE APPEALS COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: J U D G M E N T MFA 8463/2011 is instituted by the insurer of the motor vehicle aggrieved by the finding that the claimant-injured was not an occupant of the offending goods motor vehicle being a Tata 407, while MFA 6959/2011 is by the claimant aggrieved by the quantum of compensation by Judgment and award dated in MVC 4175/2008 of the Motor

4 4 Accident Claims Tribuanal, Bangalore, Court of Small Causes (SCCH-3), for short MACT. 2. In the appeal preferred by the insurer, it is specifically asserted that Ex.P5 wound certificate dated of Nelamangala Government hospital certifies that the accident occurred on and that the history of the case relating to injuries suffered was a fall from Tata 407 vehicle as recorded thus: When he was traveling in 407 KA-06-A-740 which turned upside down in Binnamangala and in Ex.P7, the discharge summary of Parasad hospital records thus: Road traffic accident while traveling in 407 van No.KA06-A740 which turned upside down at Binnamangala, Nelamangala taluk on at 4.00 PM, Treated and MLC at General Hospital Nelamangala. Therefore, it is the contention of the insurer that the claimant when examined as PW-1, introduced in

5 5 evidence Exs.P5 and P7, the contents of which disclosed that he was traveling in the goods vehicle and a false case was made out that he as a pedestrian suffered the grievous injuries due to the rash and negligent driving of the Tata 407, which the MACT failed to notice. 3. This submission is opposed on the premise that although the wound certificate records so, nevertheless that statement was not made by the claimant while the insurer in the cross-examination of PW-1, suggested that the accident occurred due to the negligence of the claimant while crossing the street. 4. The insurer having suggested to PW1 claimant that the accident occurred while he was crossing the road, the plea that on the basis of entries in Ex.P5 and P7 recording that the claimant was an occupant of the tata 407 motor vehicle, hence a false case was made out is unavailable. That contention must necessarily stand rejected. The appeal filed by the insurer is meritless.

6 6 5. Learned counsel for the claimant/appellant submits that the claimant suffered the following injuries: i) One lacerated injury at the back of left leg on calf region, irregular, 15 cm x 8 cm x 4 cm. Muscle deep; ii) Two lacerated injury at right hand 3 cm x 1 cm x ½ cm; iii) swelling over left leg; iv) Necrotising Facitis with Muscular Gangrene (lt) Lower limb; for which he was extended treatment as an inpatient for 28 days, whence he underwent surgery, hence, the award of `30,000/- towards pain and suffering, according to the learned counsel, is on the lower side. Enhancing the same by `10,000/-, in the facts and circumstances, is just and fair. 6. Claimant-injured is said to have suffered 12% disability to the whole body, as reckoned, by the MACT and if that is so, MACT was not justified in awarding

7 7 `20,000/- towards loss of amenities of life, particularly for the claimant aged 35 would have to live through his life with the impairment and loss of enjoyment and pleasures of life in its fullest, hence enhancement of compensation under the said head by another `20,000/- is just and fair. 7. No exception can be taken to the award of `75,702/- towards medical expenses since that is amount claimed by the claimant. `5,000/- towards incidental charges i.e. for food, conveyance, nourishment and attendant charges is on the lower side having regard to the fact that the claimant/appellant was an inpatient for 28 days, addition of `20,000/- in the facts and circumstances is just. 8. MACT reckoned `4,000/- as the monthly income of the injured although during the said period it was recognized in the Lok-Adalat that is `4,500/- the monthly income of an able bodied young man, and so

8 8 reckoning, claimant is entitled to `1,500/- in addition to `12,000/- awarded towards loss of income during laid up period. So also, towards future loss of income, the claimant is entitled to an additional `11,520/- (`4,500/- x 12 x 16 x 12%= `1,03,680/- - (minus) `92,160/- (amount awarded). In the circumstances, claimant-injured is entitled to an additional compensation of 63,020/- with interest at 6% p.a. In the result, the appeal of the insurer is dismissed. The amount in deposit in the appeal and the LCR is directed to be transmitted to the MACT, forthwith. The appeal of the claimant-injured is allowed, in part, entitling him to 63,020/- with interest at 6% p.a. in addition to what is awarded by the MACT and in all other respects remains unaltered. Sd/- JUDGE ln