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.6122 OF 2013(MV)
BETWEEN:
MR. MOHAMMED ALTHAF
S/O LATE GM AZIZ
AGED ABOUT 36 YEARS
R/AT SAJIPANADU HOUSE
SAJIPANADU POST & VILLAGE
BANTWAL TALUK
PRESENTLY R/AT ADHIL MANZIL
6TH CROSS, SHIVABHAG
MANGALORE TALUK-575002.
... APPELLANT
(BY SRI. GURUPRASAD B.R., ADV. )
AND
1. MR. ABDUL SALAM
S/O SULAIMAN
AGED ABOUT 41 YEARS
R/AT BASTIGUDDE, SAJIPA PETE
SAJIPANADU POST & VILLAGE
BANTWAL TALUK-574231.
2. UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE: VARANSHI TOWERS
2
MISSION STREET, BUNDER
MANGALORE-575001
REPRESENTED BY ITS MANAGER.
... RESPONDENTS
(BY SRI. Y.P.VENKATAPATHY, ADV. FOR R2:
R1 SERVED & UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 09.11.2012 PASSED IN MVC NO.1405/2011
ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL
JUDGE, MEMBER, MACT, MANGALORE, D.K., PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSTION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION,
THROUGH 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 aggrieved by the judgment dated 09.11.2012 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 29.05.2011, the claimant 3 was proceeding on motorcycle bearing registration No.KA-19/EA-743 along with his friend Mr. Abdul Salam as a pillion rider from his house. When they reached near K.S.Hegde Hospital, Deralakatte, Mangalore at about 8 a.m., rider of the said motorcycle drove the same at a high speed, and in a rash and negligent manner and lost control over the same and skidded and fell on the road. 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 aged about 34 years and was working as an Office Supervisor in Delta Info Logistics at Mangalore 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 4 accident occurred purely on account of the rash and negligent driving of the offending vehicle by its rider.
4. On service of notice, the respondents appeared through their counsel and filed separate written statement in which the averments made in the petition were denied. The age, avocation, income, manner in which the accident took place as alleged in the petition and injuries sustained by the claimant are denied. It was pleaded by respondent No.1 that the accident was not due to the rash and negligent riding of the vehicle by its rider. It was further pleaded that the policy was in force as on the date of accident. Hence, he sought for dismissal of the petition.
It was pleaded by the respondent No.2 that the petition itself is false, frivolous, vexatious and unsustainable at law and on facts. The age, avocation, income, manner in which the accident took place as alleged in the petition, injuries sustained by the 5 claimant and treatment taken by him and expenses incurred thereon are denied. It was further pleaded that the compensation claimed by the claimant is highly exorbitant, arbitrary, baseless. It was further pleaded that the accident was not due to any rash and negligent riding of the offending vehicle by its rider and it was due to negligent act of the claimant himself. It was further pleaded that the issuance of policy is subject to terms and conditions of the policy. It was further pleaded that the rider of the offending vehicle was not holding valid and effective driving licence as on the date of accident. It was further pleaded that the interest claimed by the claimant is excessive. 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 recorded the evidence. The claimant himself was 6 examined as PW-1 and Dr.S.Adyanthaya as PW-2 and got exhibited 14 documents namely Ex.P1 to Ex.P14. On behalf of the respondents, they have not examined any witness but got exhibited insurance policy as Ex.R1. 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 rider, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.1,31,460/- 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 the claimant was working as an Officer Supervisor in Delta Info Logistics 7 at Mangalore and was earning Rs.8,000/- per month. The Tribunal is not justified in taking monthly income of the claimant as Rs.6,000/-.
Secondly, the claimant has suffered two grievous injuries and he has examined the doctor, who has assessed disability of 10%. The claimant has suffered lot of pain during the treatment and he has to suffer with the disability throughout his life.
Thirdly, the compensation awarded by the Tribunal under the head of 'pain and sufferings' is on the lower side. The Tribunal has not granted any compensation under the head of 'loss of amenities'. 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 was earning Rs.9,500/- per month, and produced salary slip, but 8 he has not examined the employer of the said document to establish the same.
Secondly, the injuries suffered by the claimant are minor in nature. Therefore, the compensation awarded by the Tribunal under the head of 'pain & sufferings' is just and reasonable.
Thirdly, the compensation awarded by the Tribunal under other heads are also just and reasonable. Hence, he sought for 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 due to rash and negligent driving of motorcycle bearing Reg.No.KA-19/EA-743 by its rider. Even though the claimant was working as an Office Supervisor in Delta 9 Info Logistics at Mangalore and was earning Rs.9,500/- per month, and has produced salary certificate, but he has not examined the employer of the said document to establish the same. Under this circumstance, to assess the notional income, as per the circular issued by the Karnataka State Legal Services Authority, for the accident of the year 2011, the income should be taken notionally as Rs.6,500/- per month. Accordingly, monthly income of the claimant is considered as Rs.6,500/-. The Tribunal has rightly assessed whole body disability of 3%. At the time of accident, the claimant was aged about 34 years, multiplier applicable to the said age group is
16. Accordingly, loss of future earnings is calculated as follows:
Rs.6,500 x 12 x 16 x 3/100 = 37,440/-.
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'.
The claimant has suffered the above said injuries. He has taken treatment as inpatient for a period of 9 days. He has examined the doctor as PW.2. In his testimony, he has deposed that the claimant has suffered disability of 10%. The claimant has suffered lot of pain during the treatment and he has to suffer with the disability throughout his life. Therefore, considering the evidence of the doctor and wound certificate-Ex.P6, I am inclined to enhance the sum awarded by the Tribunal under the head of 'pain and sufferings' from Rs.25,000/- to Rs.45,000/-. The claimant is also entitled for compensation of Rs.20,000/- under the head of 'loss of amenities'.
The compensation awarded by the Tribunal under other heads is just and reasonable. 11
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 45,000 Medical expenses & 50,300 50,300 future medical expenses Food, nourishment and 2,600 2,600 attendant charges Loss of income during 18,000 19,500 laid up period Loss of amenities - 20,000 Loss of future income 34,560 37,440 due to disability Conveyance charges 1,000 1,000 Total 1,31,460 1,75,840 The claimant is entitled to a total compensation of Rs.1,75,840/-.
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. 12
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE Mkm/-