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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.6139 OF 2013(MV)
BETWEEN:
SRI. B.K.KUMAR
S/O KENCHAIAH
AGE 27 YEARS, OCC:NILL
R/O BEERAGANAHALLI
YADIYR, KUNIGAL TALUK,
TUMKUR DISTRICT-572130.
... APPELLANT
(BY SMT. SUNITHA B.H., ADV. FOR
SRI. SURESH M. LATUR, ADV. )
AND
1. SRI. A.P. RAJENDHIRAN
S/O PALANISWAMY
R/AT NO.4/135-B
NADUVANKADU
MAVELIPALYAM POST
IVELI VILLAGE, SANKARI TALUK
SALEM DISTRICT
TAMIL NADU STATE-636001.
2. THE MANAGER
ROYAL SUNDARM ALLIANCE
2
INSURANCE CO. LTD.,
I & II FLOOR, SREE BALAJI SOVEREIGN
132, BRIGADE ROAD
BANGALORE-560 025.
... RESPONDENTS
(BY SRI. RAVI S SAMPRATHI, ADV. FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 20.04.2013 PASSEED IN MVC NO.9332/2007
ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES
JUDGE, AND XXXIV ACMM, MEMBER, ADDITIONAL
MACT, COURT OF SMALL CAUSES, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCMENT 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 3 aggrieved by the judgment dated 20.04.2013 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 26.08.2007, at about 7.45 a.m., the claimant was proceeding on his Tempo Traveller (Ambulance) bearing Reg.No.TN-55/B-7254 from Bangalore towards Vellur, on Hosur-Krishnagiri NH-7 road at Koparanthana Forest and when he stopped the said vehicle on the extreme left side of the road due to technical defect, at that time, a Tempo bearing Reg.No.TN-30/U-2878 driven by its driver came from behind, at a high speed and in a rash and negligent manner and dashed against the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
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3. The claimant filed a petition under Section 166 of the Act on the ground that at the time of accident he was aged about 21 years, and was a driver by profession and was earning Rs.8,000/- 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.2 filed written statement in which the averments made in the petition were denied. It was pleaded that the issuance of policy if any, is subject to terms and conditions of the policy. It was further pleaded that the accident was not due to any rash and negligent driving of the offending vehicle. It was further pleaded that the driver of the offending vehicle was not holding valid and effective driving licence as on 5 the date of accident. it was further pleaded that the false case has been filed against the driver of the offending Tempo by the claimant. The age, avocation and income of the claimant and the medical expenses are denied. 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.
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.S.Rajanna as PW-2 and got exhibited 9 documents namely Ex.P1 to Ex.P9. On behalf of the respondents, neither any witness was examined nor marked any documents. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and 6 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.1,38,800/- 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 raised the following contentions.
Firstly, at the time of accident, claimant was aged about 21 years, and was a driver by profession and was earning Rs.8,000/- per month. He has produced D.L. as per Ex.P4. Tribunal is not justified in taking monthly income of the claimant as Rs.3,000/-, which is on the lower side.
Secondly, due to the accident the claimant has suffered injuries and he has examined the doctor, who 7 has assessed whole body disability at 18%. The Tribunal is not justified in taking disability of 10% which is on the lower side.
Thirdly, due to the accident, he has suffered two major injuries and he was inpatient for a period of 9 days. He has suffered lot of pain during the treatment. The compensation awarded by the Tribunal under the heads of 'pain and sufferings', 'loss of amenities' and 'conveyance' 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 raised the following contentions.
Even though the claimant was earning Rs.8,000/- per month, but except producing D.L., he has not produced even bank account to show that he was earning the said amount. Therefore, the Tribunal 8 has rightly assessed monthly income of the claimant as Rs.3,000/-.
Secondly, the injuries suffered by the claimant are minor in nature. Taking into consideration the evidence of the doctor, the compensation awarded by the Tribunal under the heads of 'pain and sufferings' and 'loss of amenities' are just and reasonable.
Thirdly, the doctor has assessed disability to the particular limb to the extent of 36%, even taking into consideration the same, if 1/3 is considered to the whole body disability it comes to 10% not 18% as contended by the appellant. 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 claimant has suffered injuries in a road traffic accident occurred on 9 26.08.2007 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. Superficial abrasion over left side of the forehead and
2. A lacerated wound on anterior in respect of left leg.
The claimant has examined Dr.S.Rajanna as Pw.2, who deposed that the claimant has suffered disability to the particular limb to the extent of 36% and whole body disability at 18%. Taking into consideration the evidence of the doctor and considering the age and avocation of the claimant and wound certificate-Ex.P2, I am of the opinion that the whole body disability can be assessed at 15%.
Even though the claimant has claimed that he was earning Rs.8,000/- per month as driver, but he has not produced any documents or any bank account to establish the same. Under this circumstance, the 10 notional income 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 2007, the notional income has to be taken at Rs.4,000/- per month. At the time of accident, claimant is aged about 21 years and multiplier applicable to his age group is '18'. Thus, the claimant is entitled for compensation of Rs.1,29,600/- (Rs.4,000*12*18*15%) on account of 'loss of future income'.
Since the income of the claimant is enhanced to Rs.4,000/- per month, the claimant is entitled for compensation of Rs.8,000/- (Rs.4,000*2 months) under the head 'loss of income during laid up period'.
The claimant was treated as inpatient for more than 9 days in the hospital and thereafter he has undergone surgery. He has suffered lot of pain during the treatment. He has examined the doctor, who has 11 assessed disability of 36% to the particular limb and 18% to the whole body. He has to suffer with the disability throughout his life. Hence, I am inclined to enhance the sum awarded under the head of 'pain & sufferings' from Rs.35,000/- to Rs.45,000/-, under the head of 'loss of amenities' from Rs.10,000/- to Rs.25,000/- and under the head of 'conveyance' from Rs.5,000/- to Rs.10,000/-.
The compensation awarded by the Tribunal under other heads is 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.) Loss of future income 64,800 1,29,600 Pain & sufferings 35,000 45,000 Medical expenses 10,000 10,000 Loss of income during 6,000 8,000 laid up period Attendant charges 3,000 3,000 Food, nourishment, diet 5,000 5,000 12 Conveyance 5,000 10,000 Loss of amenities 10,000 25,000 Total 1,38,800 2,35,600 The claimant is entitled to a total compensation of Rs.2,35,600/-.
The Insurance Company is directed to deposit the compensation amount along with interest at 6% p.a. 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 Mkm/-