1
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. 7725 OF 2013(MV)
BETWEEN:
SRI.V. RAJANNA
S/O VENKATAPPA
AGED ABOUT 47 YEARS
R/AT WARD NO.21
PARVATHIPURA
NEAR OM SHAKTHI TEMPLE
HOSKOTE TOWN
BENGALURU DISTRICT.
... APPELLANT
(BY SRI.SHRIPAD V SHASTRI., ADV. )
AND
1. MOHAMMED SAMEER M.S
MAJOR IN AGE, NO.95
TTB HOUSE, MEDAHALLI VILLAGE
VIRGO NAGAR POST
OLD MADRAS ROAD
BENGLURU-560 049.
2. THE REGIONAL MANAGER
M/S UNITED INDIA INSURANCE CO. LTD.,
II PARTY HUBB
2
5TH FLOOR, KRISHI BHAVANA
CORPORATION CIRCLE
BENGALURU-560 001.
BY ITS MANAGER.
... RESPONDENTS
(BY SRI. RAMESH BENNI, ADV.)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAISNT THE JUDGMENT AND AWARD
DATED:28.06.2013 PASSED IN MVC NO.7231/2011
ON THE FILE OF THE XXIV ADDITIONAL SMALL
CAUSES JUDGE, AND XXII ACMM, MACT, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA COMING ON FOR ADMISSION,
THORUGH VIDEO CONFERENCE, 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 28.6.2013 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 12.10.2011, the claimant was waiting for bus to go to Hoskote at Veeranahalli bus stop on NH-4, at that time, motorcycle bearing registration No.KA-53-R-6668 being ridden by its rider 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 the claimant was aged about 47 years and he was working as autodriver was earning Rs.7,500/- p.m. It was pleaded that he also spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred 4 purely on account of the rash and negligent riding of the offending vehicle by its rider.
4. On service of notice, both the respondents appeared through counsel. 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. The insurer of the motorcycle has pleaded that the liability is subject to terms and conditions of the policy and denied the accident and also denied the age, occupation and income of the claimant. The claimant colluded with the owner to fix the insured to get unjust compensation. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter 5 recorded the evidence. The claimant himself was examined as PW-1, Mr.S Lakshmi Devi as PW-2, and Dr.Chethan as PW-3 and got exhibited documents namely Ex.P1 to Ex.P24. On behalf of the respondents, no witness was examined but got exhibited documents namely Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the offending vehicle by its rider, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.3,43,100/- 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. The learned counsel for the claimant submitted that even though the claimant claims that 6 he was working as auto driver and earning Rs.7,500/- per month, but the Tribunal has taken the notional income as merely as Rs.5,000/- per month. Secondly, PW-3, the doctor has stated in his evidence that the claimant has suffered permanent disability of 22% to whole body. But the Tribunal has erred in taking the whole body disability at only 15%. Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 19 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 other heads are on the lower side. Fourthly, PW-3 the doctor has stated that the claimant has to undergo one more surgery and estimated cost of the surgery is Rs.55,000/- and Rs.70,000/- for 7 removal of implants. But the Tribunal has granted as merely as Rs.30,000/- under the head of 'future medical expenses'. Hence, he sought for allowing the appeal.
7. On the other hand, the learned counsel for the Insurance Company has contended that even though the claimant claims that he was earning Rs.7,000/- per month, he has not produced any documents to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally. Secondly, PW-3, the doctor has stated in his evidence that the claimant has suffered disability of 22% to whole body. But the Tribunal considering the injuries sustained by the claimant, has rightly assessed the whole body disability at 15%. Thirdly, considering the evidence of the doctor, the compensation awarded by the Tribunal under the head 'future medical expenses' is just and proper. Fourthly, 8 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.
The claimant has not produced any evidence with regard to his income. Therefore, the 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 2011, the notional income has to be taken at Rs.6,500/- p.m. 9 As per wound certificate, the claimant has sustained fracture deformity at right lower limb, fracture deformity at right lower limb, compression tenderness over palms, abrasion of 1x1 over left elbow, fracture of left femur and fracture of middle 1/3rd shaft fibula and segmental of tibia. PW-3, the doctor has stated that the claimant has suffered whole body disability at 22%. Therefore, taking into consideration the deposition of PW-3 and injuries mentioned in the wound certificate, the Tribunal has rightly taken the whole body taken at 15%. The claimant is aged about 47 years at the time of the accident and multiplier applicable to his age group is '13'. Thus, the claimant is entitled for compensation of Rs.1,52,100/- (Rs.6,500*12*13*15%) on account of 'loss of future income'.
Since the income of the claimant is enhanced to Rs.6,500/- per month, the claimant is entitled for 10 compensation of Rs.19,500/- (Rs.6,500*3 months) under the head 'loss of income during laid up period'.
Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. 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.40,000/- to Rs.60,000/-.
PW-3 the doctor in his evidence has stated that the claimant has to undergo one more surgery and estimated cost of the surgery is Rs.55,000/- and Rs.70,000/- for removal of implants. Considering the same, I am inclined to enhance the sum awarded by the Tribunal under the head of 'future medical expenses' from Rs.30,000/- to Rs.80,000/-. 11
The compensation awarded by the Tribunal under other heads remains unaltered.
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 40,000 40,000 Medical expenses 89,103 89,103 Food, nourishment, 12,000 12,000 conveyance and attendant charges Loss of income during 15,000 19,500 laid up period Loss of amenities 40,000 60,000 Loss of future income 117,000 152,100 Future medical expenses 30,000 80,000 Total 343,103 452,703 Rounded off 343,100 452,700 The claimant is entitled to a total compensation of Rs.452,700/-.
The Insurance Company is directed to deposit the compensation amount along with interest at 6% p.a. within a period of four weeks from the date of 12 receipt of copy of this judgment excluding interest for the compensation awarded under the head of 'future medical expenses'.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE DM DM CT-RK