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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.9157 OF 2013(MV)
BETWEEN:
SRI. A.MITHUN KUMAR
S/O A. DASS KUMAR
AGED ABOUT 31 YEARS
R/AT NO.B-4,
VENKATAPRASIDDI APTS,
I MAIN, KAGGADASAPURA
C.V.RAMAN NAGAR
BANGALORE-560 093.
... APPELLANT
(BY SRI.K. PRADEEP NAIK, ADV. )
AND
1. SRI. K.GANESH AITHAL
S/O KRISHNA AITHAL
AGED MAJOR
R/AT NO.110, SRIKRISHNA
7TH CROSS, 9TH MAIN
INDUSTRIAL WORKS LAYOUT
SHANKARNAGAR
MAHALAKSHMIPURAM LAYOUT
BANGALORE-560 096.
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2. UNIVERSAL SAMPO GENERAL
INSURANCE COMPANY LIMITED.,
NO.7/3, KVD TOWERS
II FLOOR, ABOVE BARCLAYS FINANCE,
OLD MADRAS ROAD
OPP. TO 100 FT ROAD, INDIRANAGAR
BANGALORE-560 038.
... RESPONDENTS
(BY SRI.RAVI S SAMPRATHI, ADV. FOR R2:
R1 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:SED IN MVC NO.1532/2011 ON THE FILE OF
THE XII ADDITIONAL SMALL CAUSES JDUGE AND
MEMBER MACT, BANGALORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimant being aggrieved 3 by the judgment dated 17.7.2013 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 25.1.2011, the claimant was walking from his office towards residency bus stop, while crossing RRMR Road at Richmond Circle from South to North direction, at that time, car bearing registration No.KA-02-MD-3943 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver. 4
4. On service of notice, the respondent No.2 filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent riding of the vehicle by the claimant himself. The driver of the offending vehicle did not have valid driving licence as on the date of the accident. The liability is subject to terms and conditions of the policy. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.
The respondent No.1 did not appear before the Tribunal inspite of service of notice and was placed ex- parte.
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5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.Raghavendra M.S. as PW-2 and got exhibited documents namely Ex.P1 to Ex.P17. On behalf of the respondents, neither any witness was examined nor any document was produced. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.2,25,830/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.
6. The learned counsel for the claimant has contended that as per wound certificate the claimant has 6 sustained Type I open fracture of right tibia, fracture shaft of right fibula, intertrochanteric fracture left hip. PW-2, the doctor has stated in his evidence that the claimant has suffered disability of 50% to left lower limb and 16% to whole body. He was treated as inpatient for a period of 10 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment. Considering the same, the compensation granted by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and incidental expenses are on the lower side. Hence, he sought for allowing the appeal.
7. On the other hand, the learned counsel for the Insurance Company has contended that even though PW-2 the doctor has stated in his evidence that the claimant has suffered disability of 50% to left lower limb and 16% to whole body, the claimant has failed to prove 7 that due to the disability, there is loss of income. Moreover, he has continued his job. Therefore, the Tribunal has rightly not granted any compensation under the head of 'loss of future income'. Further, considering the oral and documentary evidence, the Tribunal has granted just and reasonable compensation and it does not call for interference. Hence, he sought dismissal of the appeal.
8. Heard the learned counsel for the parties and perused the records.
9. It is not in dispute that the accident has occurred due to rash and negligent driving of the offending vehicle by its driver.
As per wound certificate the claimant has sustained Type I open fracture of right tibia, fracture shaft of right fibula, intertrochanteric fracture left hip. PW-2, the doctor has stated in his evidence that the claimant has suffered disability of 50% to left lower limb 8 and 16% to whole body. He was treated as inpatient for a period of 10 days. He has suffered lot of pain during treatment and he has to suffer with the disability stated by the doctor throughout his life. Considering the same, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'loss of amenities' from Rs.20,000/- to Rs.45,000/-; under the head of 'pain and sufferings' from Rs.35,000/- to Rs.50,000/- and under the head of 'food, conveyance and attendant charges' from Rs.10,000/- to Rs.15,000/- .
Since, the claimant has continued his job, there is no loss of income. Therefore, the Tribunal has rightly not granted any compensation under the head 'loss of future income'. Further, compensation awarded by the Tribunal under other heads is just and reasonable.
10. Thus, the claimant is entitled to an amount of Rs.45,000/- in addition to the compensation of Rs.2,25,830/- awarded by the Tribunal. 9
The Insurance Company is directed to deposit the compensation amount along with interest at 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of four weeks from the date of receipt of copy of this judgment.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE DM