1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
M.F.A.No.9124 OF 2010(MV)
BETWEEN:
Mr. Madhusudhan Rai @
Madhusudhan,
S/o Shri. Battyappa Rai,
Aged about 34 years,
Residing at Kambalabettu House,
Vitlamudnur Village, Bantawala Taluk,
Dakshina Kannada District.
... Appellant
(By Sri. Joseph Anil Kumar A., Advocate)
AND:
1. The Divisional Manager,
The New India Assurance Company Ltd.,
Divisional Office-8,
No.47, Gopal Complex,
Yeshwanthpura, Bangalore-560 022.
2. Mr. K.R.Divakar,
No.69, 6th Main, 15th Cross,
J.C.Nagar, Kurubarahalli,
Kasturbanagar, Mysore Road,
Bangalore-560 086.
... Respondents
(By Sri.P.B.Raju, Advocate for R1:
Notice to R2 is dispensed with )
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This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:28.04.2010 passed
in MVC No. 8924/2008 on the file of the X Additional Judge
and Member MACT, Bangalore, partly allowing the claim
petition for compensation and seeking enhancement of
compensation.
This MFA, coming on for hearing, through video
conference, this day, this 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 by the judgment dated 28.04.2010 passed by the Motor Accident Claims Tribunal in MVC No.8924/2008.
2. Facts giving rise to the filing of the appeal briefly stated are that on 19.08.2008 at 12.30 a.m. the claimant was proceeding in a motorcycle bearing registration No.KA-19/V-6216 along with a pillion rider on B.B.Road, Allalasandra bypass junction, Yelahanka, Bangalore. At that time, a Tata Sumo bearing 3 registration No.KA-05/C-1447 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of 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 on the ground that he was working as a Tourist bus driver and was earning Rs.18,000/- per month. It was pleaded that he also 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. On service of notice, the respondent No.1 filed written statement in which the averments made in the petition were denied. It was pleaded that the accident was due to the rash and negligent riding of 4 the vehicle by the claimant himself. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the liability if any, is subject to the terms and conditions of the policy and subject to valid and effective driving licence by the driver of the offending vehicle. 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.2 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.
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.Niranjan Murthy as PW-3 and got exhibited documents namely Ex.P1 to Ex.P14 and Ex.P19 and P20. On behalf of the respondents, neither any witness was examined nor got exhibited 5 any documents. 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.2,69,100/- 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. Sri Joseph Anil Kumar, the learned counsel for the claimant has raised the following contentions:
Firstly, even though the claimant claims that he was working as a driver and was earning Rs.18,000/- per month, but the Tribunal has taken the notional income as only Rs.3,000/- per month.
Secondly, the claimant has produced Ex.P21 medical bills amounting to Rs.1,38,375/-, the Tribunal 6 has not considered the same. Hence, he sought for allowing the appeal.
7. On the other hand, Sri P.B.Raju, the learned counsel for the Insurance Company has raised the following contentions:
Firstly, even though the claimant produced a salary certificate to show that he was earning Rs.18,000/- per month, he has not examined the author of the document. Therefore, the Tribunal has rightly assessed the notional income of the claimant.
Secondly, as per Ex.P21 Rs.1,38,375/- is claimed, some of the bills are overlapping, therefore, the Tribunal has rightly taken into account Ex.P11 and awarded the compensation under the head 'medical expenses'.
Thirdly, considering the oral and documentary evidence, the Tribunal has granted just and reasonable compensation and it does not call for 7 interference. Hence, he sought for dismissal of the appeal.
8. Heard the learned counsel for the parties. Perused the original records, judgment and award passed by the Tribunal.
9. It is not in dispute that the claimant suffered injuries in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver.
Due to the accident the claimant has suffered the following injuries:
(1) Head injury.
(2) Fracture of right femur.
(3) Fracture of right tibia and fibula
(4) Sutured wound over scalp.
Even though the claimant claimed that he was earning Rs.18,000/- per month and has produced the 8 salary certificate, he has not examined the author of the document. Under these circumstances, the Tribunal had no other option but to assess the notional income. The notional income assessed by the Tribunal is on the lower side and it has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2008, the notional income has to be taken at Rs.4,500/- per month. The Tribunal has rightly assessed the whole body disability at 10%. At the time of the accident the claimant was aged about 32 years and the applicable multiplier is '16'. Thus, the claimant is entitled to Rs.86,400/- (Rs.4,500*12*16*10%) on account of 'loss of future income'.
Since the income of the claimant is enhanced to Rs.4,500/- per month, the claimant is entitled for 9 compensation of Rs.86,400/- (Rs.4,500*6 months) under the head 'loss of income during laid up period'.
In respect of medical expenses awarded by the Tribunal is concerned, the claimant has produced Ex.P21 medical bills amounting to Rs.1,38,375/-, some of the bills are overlapped. Taking into consideration of the same, the remaining amount of Rs.1.00 lakh has to be awarded towards 'medical expenses' in addition to the amount awarded by the Tribunal.
The compensation awarded by the Tribunal under other heads are just and reasonable.
10. Thus, the claimant is entitled to the following compensation:
As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 25,000 25,000 Medical expenses 1,23,500 2,23,500 Food, nourishment, 10,000 10,000 10 conveyance and attendant charges Loss of income during 18,000 27,000 laid up period Loss of amenities 25,000 25,000 Loss of future income 57,600 86,400 Disfigurement 10,000 10,000 Total 2,69,100 4,06,900 The claimant is entitled to a total compensation of Rs.4,06,900/-. The Insurance Company is directed to deposit the compensation amount along with interest at 6% per annum from the date of 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 Cm/-