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.7785 OF 2013 (MV)
BETWEEN:
Sri. Nagaraj H.T.,
S/o Thimmarayappa,
Aged about 46 years,
Residing at No.244/11,
Sriram Complex,
Avalahalli, Singanayakanahalli,
Yelahanka Hobli,
Bangalore North Taluk.
... Appellant
(By Sri.P.Shiva Kumar., Advocate)
AND:
1. IFFCO-TOKIO General Insurance Co. Ltd.,
Regional Office,
No.8, 3rd Main,
Shanthi Towers,
5th Floor, East of NGEF Layout,
Kasturinagar,
Bangalore-560 043.
Rep. by its Manager.
2. Sri. Paramesh S.R.,
S/o Ramaiah C.,
Residing at
Singanayakanahalli,
2
Yelahanka, Bangalore-560 064.
... Respondents
(By Sri.E.I.Sanmathi, Advocate for R1 )
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:31.05.2013
passed in MVC No. 1702/2012 on the file of the Judge,
Court of Small Causes, 26th ACMM, Bangalore, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
This MFA, coming on for admission, 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 31.05.2013 passed by the Motor Accident Claims Tribunal, Bangalore in MVC No.1702/2012.
2. Facts giving rise to the filing of the appeal briefly stated are that on 16.11.2011 at about 6.30 a.m., the claimant was waiting for the bus at Yelahanka - Doddaballapura road, near Avalahalli bus 3 stop. At that time, the rider of the motorcycle bearing registration No.KA-50/L-557 drove the same at a high speed and in a rash and negligent manner dashed against 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 Operation Officer at ACE Star Detective Agency Security Consultants, Banasawadi and was earning Rs.10,000/- 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 Nos.1 and 2 filed separate written statements in which the 4 averments made in the petition were denied. The age, avocation and income of the claimant and the medical expenses are denied. It was admitted by respondent No.1 with respect of policy and also admitted the validity of the insurance policy as on the date of the accident. It was further pleaded that the claimant has taken treatment as inpatient in ESI hospital and was eligible to claim benefit under ESI Scheme.
It was pleaded by respondent No.2 that the offending vehicle was insured with respondent No.1 which is valid for a period from 20.7.2011 to 19.7.2012 and he was also having valid driving licence to drive the said vehicle. Hence, they sought for dismissal of the petition.
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 5 examined as PW-1, Dr.C.V.Kumar as PW-2, one Kumar and Nagaraju, Medical Record Keepers as PW-3 and PW-4 and got exhibited 23 documents namely Ex.P1 to Ex.P23. On behalf of the respondents, neither any witness was examined nor got exhibited 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.1,11,300/- along with interest at the rate of 6% per annum and directed the insurance company to deposit the compensation amount along with interest. Being not satisfied claimant has filed this appeal.
6. The learned counsel for the claimant has raised the following contentions: 6
Firstly, at the time of the accident claimant was aged about 46 years, he suffered grievous injuries. He examined the doctor PW-2, who deposed that there is 45% left lower limb disability. The Tribunal only on the ground that he is not the treated doctor has not awarded any compensation under the head 'loss of future earnings due to disability' contrary to the materials available on record.
Secondly, the compensation awarded by the Tribunal on the other heads 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:
Firstly, even though the claimant claims that he was earning Rs.10,000/- per month, he has not produced any documents to establish his income. 7 Therefore, the Tribunal has rightly assessed the income of the claimant notionally.
Secondly, PW-2 is not the treated doctor. Therefore, the Tribunal has rightly not considered 'loss of future income due to disability'.
Thirdly, 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. Perused the original records, judgment and award passed by the Tribunal.
9. It is not in dispute that the claimant suffered injuries in the accident occurred due to rash and negligent driving of the offending vehicle by its driver.
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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. The claimant examined the doctor as PW-2, who in his testimony has stated that the claimant has suffered 45% of the limb disability and 15% whole body disability, since the doctor is not the treated doctor, taking into consideration the wound certificate as per Ex.P6, I am of the opinion that the whole body disability can be assessed at 10%. The claimant was aged about 46 years at the time of the accident and multiplier applicable to his age group is '13'. Thus, the claimant is entitled to Rs.1,01,400/- (Rs.6,500*12* 9 13*10%) on account of 'loss of future income due to disability'.
Since the income of the claimant is enhanced to Rs.6,500/- per month, the claimant is entitled for compensation of Rs.13,000/- (Rs.6,500*2 months) under the head 'loss of income during laid up period'.
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 45,000 45,000 Future Medical expenses 25,000 25,000 Diet, conveyance and 3,600 3,600 attendant charges Loss of income during 11,700 13,000 laid up period Loss of amenities 20,000 20,000 Loss of future income - 1,01,400 Future medical expenses 25,000 25,000 Total 1,11,300 2,33,000 10 The claimant is entitled to a total compensation of Rs.2,33,000/-. The Insurance Company is directed to deposit the compensation amount along with interest at 6% per annum (excluding future medical expenses) 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/-