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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
M.F.A. NO.581 OF 2020 (MV-I)
BETWEEN:
SRI. VASU
S/O SOMEGOWDA
AGED ABOUT 43 YEARS
RESIDING AT HOSAKOTE VILLAGE
YELAWALA HOBLI
MYSURU TALUK AND DISTRICT-571105.
REPRESENTED BY GUARDIAN
SMT. PRAMILA
W/O VASU
AGED ABOUT 38 YEARS
RESIDING AT HOSAKOTE VILLAGE
YELAWALA HOBLI
MYSURU TALUK AND DISTRICT-571105.
... APPELLANT
(BY SRI. SRINIVASA D.C. ADV.,)
AND:
1. SRI. VIRAKTHA VADEYAR
S/O NANJEDEVARU
AGED ABOUT 50 YEARS
KADAGAPURA MATA VILLAGE
GUNDALPETE TALUK
CHAMARAJANAGAR DISTRICT-570
(OWNER AND DRIVER OF BIKE NO.KA-09-EQ-5346).
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2. UNITED INDIA INSURANCE CO. LTD
BY ITS MANAGER
DIVISIONAL OFFICE II, NO.2912
SRI. VENKATESHWARA PLAZA
I MAIN ROAD, SARASWATHIPURA
MYSORE-577001
(INSURER OF LORRY NO.KA-02-C-5088).
... RESPONDENTS
(R1 & R2 SERVED)
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THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DT:26.11.2019 PASSED IN
MVC NO.1064/2016 ON THE FILE OF THE JUDGE, PRL. SMALL
CAUSES AND SENIOR CIVIL JUDGE, MACT, MYSURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, 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 26.11.2019 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 08.07.2016, the claimant - Vasu was proceeding as a pillion rider on motor cycle bearing registration No.KA- 09-HE-2174. When he reached near Malegalada Maramma 3 Temple, Srirampura Ring Road, another motorcycle bearing registration No.KA-09-EQ-5346 which was being driven by its rider in rash and negligent manner, dashed against the motor cycle in which the claimant was traveling. As a result of the aforesaid accident, the claimant sustained grievous injuries and was immediately given first aid at KR Hospital and thereafter was shifted to Brindavana Hospital, Mysore for further treatment where the claimant was an inpatient from 08.07.2016 to 16.08.2016 and again from 17.09.2016 to 21.09.2016.
3. The claimant thereupon filed a petition under Section 166 of the Act inter alia on the ground that the claimant was admitted to Brindavana Hospital, Mysore where he took treatment as inpatient for a period of 42 days. It is also pleaded that the claimant has spent more than Rs.15,00,000/- towards medical expenses. It was also claimed that the claimant was earning a daily wage of Rs.750/- from working as an agriculturist and coolie and due to the impact of the accident, the claimant is unable to carry on with the work as before. It was also pleaded that the 4 accident took place on account of the rash and negligent driving of the rider of the offending motor cycle. The claimant claimed compensation to the tune of Rs.47,00,000/- along with interest.
4. The respondent insurance company appeared through their counsel and filed separate written statement, inter alia, in which the mode and manner of the accident was denied. 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 pleaded that the claim petition is bad for non joinder of necessary parties. 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 Prameela as PW-1, Dr.Anil Sangli (PW2) and got exhibited documents namely Ex.P1 to Ex.P28. The 5 respondent insurance company examined Shalini KC as RW1 and got exhibited document 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 motor cycle 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.22,00,000/- 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.7,500/- per month and in any case, the same ought to have been taken as per the guidelines framed by the Karnataka State Legal Services Authority. It is further submitted that the Tribunal erred in assessing the permanent disability of the claimant at 50% when Dr.Anil Sangli (PW2) has clearly stated that the disability of the claimant is 90% to the whole body. It is also submitted that the Tribunal erred in not awarding compensation under the head 'Future Medical 6 Expenses'. It is also urged that the amount of compensation awarded under all the other heads are on the lower side and deserve to be enhanced suitably.
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 his income. Therefore, the notional income of the claimant is to be assessed as per the guidelines issued by the Karnataka Legal Services Authority. Since the accident is of the year 2016, notional income of the claimant is assessed at Rs.9,500/- per month. Ex.P6 Wound Certificate discloses that the claimant has sustained the following injuries:-
a. Bleeding lacerated injury measuring 5x2xbone depth to the right peuetoccipilial region of the head b. lacerated injury measuring 4x2x2 cms over right frontal region of the head with underlying swelling c. Lacerated injury measuring 3x2x2 cms with surrounding swelling over right forehead region d. Blood clots noted in both nostrils and right ear 7 All of the aforesaid injuries are grievous in nature. PW1 Pramila has stated in her evidence that the claimant has undergone multiple surgeries on different occasions due to the injuries the claimant has sustained in the accident and that the claimant continues to take regular medical treatment as an outpatient. The aforesaid witness further states that the claimant is unable to speak and has become completely disabled to perform any kind of day to day activities.
8. Dr.Anil Sangli (PW2) has stated in his evidence that the claimant has sustained grievous head injuries and has undergone multiple surgical procedures on different occasions and continues to suffer from multiple recurrent seizures. He has further stated that the claimant cannot speak spontaneously and is completely dependant on the support of family members for almost all activities of daily life. The aforesaid witness has also stated that the claimant is unable to walk without support and has assessed the permanent physical and mental disability to the whole body at 90%. Nothing to the contrary has been elicited in his cross-examination. The Tribunal has assessed the disability 8 of the claimant at 50% to the whole body without assigning reasons for discarding the evidence of Dr.Anil Sangli (PW2). Therefore, we assess the disability of the claimant at 90% to the whole body on the basis of the evidence of Dr.Anil Sangli (PW2) as well as Pramila (PW1). Therefore, the claimant is entitled to Rs.16,41,600/- (Rs.9,500 x 12x 16x 90%) under the head 'loss of earning capacity'.
9. Considering the fact the claimant has suffered 4 injuries to the head which are grevious in nature and the fact the claimant has remained an inpatient for a period of 42 days from 08.07.2016 to 16.08.2016 and again from 17.09.2016 to 21.09.2016, the claimant would have been under treatment atleast for 4 months. Therefore, the claimant is entitled to Rs.38,000/- (9,500x4) under the head 'loss of income during laid up period. Taking into account the fact that the claimant has suffered 4 head injuries which are grievous in nature and that the claimant was an inpatient for 42 days, we deem it appropriate to enhance the compensation under the heads 'Pain and Suffering' and 'Loss 9 of amenities' by an additional sum of Rs.10,000/- each in addition to the sum already awarded by the Tribunal.
10. The amount of compensation awarded under the other heads is maintained as the same is just and reasonable. As far as the contention of the learned counsel that the Tribunal erred in not awarding compensation towards future medical expenses, the same is liable to be rejected as neither the claimant in the pleadings nor Dr.Anil Sangli (PW2) in his evidence have stated about the requirement of any future medical treatment or its expenses. Therefore, the Tribunal has rightly not awarded compensation under the head 'Future Medical Expenses'. Thus, the claimant is held entitled to a total compensation of Rs.31,52,600/-. Needless to state that the enhanced amount of compensation viz., Rs.9,53,600/- shall carry interest at the rate of 6% per annum from the date of filing of the petition till the date of realization of the amount. To the aforesaid extent, the judgment of the claims Tribunal is modified.
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Accordingly, the appeal is partly allowed.
Sd/-
JUDGE Sd/-
JUDGE ss