1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
M.F.A. NO.4965 OF 2014 (MV)
BETWEEN:
VIJAYA KUMAR S/O KUPPU SWAMY
AGED ABOUT 45 YEARS
GARAGE WORK
R/O GUNDAPPA SHED
1ST CROSS, SHIMOGA AT & TALUK-577201
REP. BY THE NEXT FRIEND HIS WIFE
SMT. AMUDA W/O VIJAY KUMAR
AGED ABOUT 42 YEARS
R/O GUNDAPPA SHED
1ST CROSS, SHIMOGA
AT & TALUK-577201.
... APPELLANT
(BY MR. RAVINDRANATH M, ADV.,)
AND:
1. D.E. SHIVARAJ S/O ESHWARAPPA
AGED ABOUT 38 YEARS
DRIVER OF THE MARUTHI OMIN VAN
BEARING NO.KA-15-M-250
R/O VENKATESH NAGAR
3RD CROSS, SHIMOGA AT & TALUK-577201.
2. PRAVEEN KUMAR S/O JANARDHAN ACHAR
AGE MAJOR, OWNER OF THE MARUTHI
OMNI VAN BEARING NO.KA-15-M-250
R/O KALIKAMBA NILAYA
2
COLLEGE ROAD, BYNDOOR
KUNDAPURA-576201.
3. THE MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
GARDEN AREA, 1ST CROSS
SHIMOGA AT & TQ-577201
(POLICY NO.422700/31/2008/9551, VALID
FROM 05.01.2008 TO 04.01.2009)
... RESPONDENTS
(BY MR. B.C. SEETHARAMA RAO, ADV., FOR R3
R1 & R2 NOTICE DISPENSED WITH)
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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 29.3.2014 PASSED
IN MVC NO.274/2009 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE, MACT-6, SHIMOGA PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS M.F.A. COMING ON FOR ORDERS, THIS DAY,
ALOK ARADHE J., 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 seeking enhancement of the amount of compensation, against the judgment dated 29.03.2014 passed by the Motor Accident Claims Tribunal (hereinafter referred to as 'the Tribunal' for short).
2. Facts leading to filing of this appeal briefly stated are that on 25.12.2008 at about 5.15 p.m., the claimant 3 Vijay Kumar was proceeding in a Bajaj Scooter bearing Registration No.KA-14-H-2191 near Shrinidhi Wine Store, Shivamoga. At that time, a Maruthi Omni Van bearing Registration No. KA-15-M-250 which was being driven by its driver in rash and negligent manner dashed against the scooter of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and took treatment as an inpatient for 21 days.
3. The claimant thereupon filed a petition under Section 166 of the Act inter alia on the ground that the claimant was admitted to KMC Hospital, Manipal. It was further pleaded that the claimant was employed as a Mechanic and was earning a daily wages of Rs.600/-. It is also pleaded that claimant was still under treatment and where she took treatment as inpatient for a period of 21 days. It was pleaded that due to the impact of the accident, the claimant is unable to carry on with his work as before. It was also pleaded that the accident took place on account of the rash and negligent driving of the driver of the Maruthi 4 Omni vehicle. The claimant claimed compensation to the tune of Rs.40,50,000/- along with interest.
4. The insurance company filed its written statement in which, inter alia, the mode and manner of the accident was denied. It was pleaded that the accident occurred on account of the negligence of the claimant himself. The age, occupation, income and injuries sustained by the claimant was denied. It was also pleaded that liability of the insurance company to the compensation, if any, is subject to the terms and conditions of the policy. It was also stated that the compensation claimed by the claimant is highly excessive, speculative and exorbitant.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant, in order to prove his case, examined his wife Amuda as PW-2, Dr. Shyamprasad PS (PW1) and Jamaluddin (PW3) and got exhibited documents namely Ex.P1 to Ex.C2. The respondents did not adduce any oral evidence, however, a copy of the insurance policy was marked as Ex.R1 and Ex.R2. The Claims Tribunal, by the 5 impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the Maruthi Omni 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.1,47,920/- along with interest at the rate of 6% p.a. Being aggrieved, this appeal has been filed by the claimant seeking enhancement of the amount of compensation.
6. Learned counsel for the claimant submitted that the Tribunal has grossly erred in assessing the income of the claimant as Rs.200/- per day as the claimant was earning Rs.600/- per day working as a Mechanic and running his own garage. It is further submitted that the Tribunal erred in not awarding compensation towards disability suffered by the claimant. It is also urged that the amount of compensation awarded under all the heads of 'Pain and suffering' , 'Medical expenses' and 'loss of income during laid up period' as well as 'loss of amenities' are on the lower side and deserve to be enhanced suitably. On the other hand, learned counsel for the insurance company submitted that no evidence has been 6 adduced by the claimants to prove the income of the claimant before the Tribunal and that the Tribunal has rightly taken the income of the deceased notionally at Rs.6,000/- per month. It is further submitted that the amount of compensation awarded by the Tribunal under all the heads is just and proper and does not call for any interference.
7. We have considered the submissions made by learned counsel for the parties and have perused the record. The only question which arises for our consideration in this appeal is with regard to the quantum of compensation. Admittedly, the claimant has not produced any evidence with regard to the income of the deceased. Therefore, the income of the claimant is to be assessed notionally. Since, the accident is of the year 2008, the Tribunal has rightly assessed the income of the claimant notionally at Rs.6,000/- per month taking into account the age and avocation of the claimant. Ex.P6 Wound certificate discloses that the claimant has suffered two simple injuries and one grievous injury to the left parietal region. It is pertinent to note that the claimant has not examined the doctor who has treated him 7 or any other witness to prove the claim of disability suffered by him. PW1 Dr. Shyamprasad PS has stated in his evidence that the claimant is not in a fit state of mind to give evidence. The Tribunal on the basis of Ex.P7 Medical Bills and Ex.P8 Prescriptions and on the basis preponderance of probabilities has arrived at the conclusion that the claimant was an inpatient for 21 days at KMC Hospital from 25.12.008 to 16.01.2009 and that the claimant was laid up for a period of three months. Therefore, taking into account the nature of injuries suffered by the claimant as well as the age and avocation of the claimant, the claimant is held entitled to Rs.40,000/- towards 'Pain and suffering', Rs.20,000/- towards Food, nourishment and attendant charges and Rs.30,000/- on account of loss of amenities. The compensation awarded by the Tribunal under the other heads are maintained as no grounds for interference has been made out. Thus, the claimant is held entitled to a total compensation of Rs.1,87,220/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% per annum from the date of filing of the petition 8 till the date of realization of the amount. To the aforesaid extent, the judgment of the claims Tribunal is modified.
Accordingly, the appeal is disposed of.
Sd/-
JUDGE Sd/-
JUDGE ss