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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.6608 OF 2021(MV)
C/W
MFA No.3859 OF 2021(MV)
IN MFA 6608/2021
BETWEEN
RELIANCE GENERAL INSURANCE
COMPANY LTD.,
EAST WING, 5TH FLOOR
NO.28,CENTENARY BUILDING
M.G.ROAD,BENGALURU-560001.
NOW REPRESENTED BY
MANAGER LEGAL.
...APPELLANT
(BY SRI.ASHOK N PATIL, ADV)
AND
1 . HANUMANTHARAJU V
S/O VENKATACHALAIAH
AGED ABOUT 41 YEARS
RESIDING AT HONGANAHATTI
TAVAREKERE HOBLI
MAGADI TALUK
RAMANGARA DISTRICT 562130.
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2 . GIRISH GOWDA
S/O NARASIMHAIAH
R/AT NO.10, 3RD CROSS
VRUSHABHAVATHI NAGAR
NEAR LAKSHMI VALLABHA
KALYANA MANTAPA
KAMAKSHIPALYA
BENGALURU-560079.
...RESPONDENTS
(BY SRI.B.KESHAVA MURTHY, ADV. FOR R1:
NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION.173(1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD
DT.22.04.2021 PASSED IN MVC NO.5397/2019 ON
THE FILE OF THE VIII ADDITIONAL SMALL CAUSE
JUDGE AND ACMM, MEMBER, MACT, BENGALURU,
(SCCH-5), AWARDING COMPENSATION OF
RS.7,92,000/- WITH INTEREST AT 9 PERCENT P.A.
(EXCLUDING FUTURE MEDICAL EXPENSES OF
RS.25,000/-) FROM THE DATE OF PETITION TILL
REALIZATION.
IN MFA 3859/2021
BETWEEN
MR. HANUMANTHARAJU V
S/O MR. VENKATACHALAIAH
AGED ABOUT 40 YEARS
R/AT HONGANAHATTI VILLAGE
TAVAREKERE HOBLI
MAGADI TALUK
3
RAMANGARA DISTRICT.
... APPELLANT
(BY SRI. KESHAVAMURTHY B., ADV.)
AND:
1. MR. GIRISH GOWDA
S/O NARASIMHAIAH
R/AT NO.10, 3RD CROSS
VRUSHABHAVATHI NAGAR
NEAR LAKSHMI VALLABHA
KALYANA MANTAPA
KAMAKSHIPALYA
BENGALURU-560079.
2. M/S RELIANCE GENERAL INSURANCE
COMPANY LTD.,
EAST WING, 5TH FLOOR
NO.28,CENTENARY BUILDING
M.G.ROAD,BENGALURU-560001.
... RESPONDENTS
(BY SRI. ASHOK N PATIL ADV. FOR R2:
NOTICE TO R1 IS SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION.173(1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD
DT.22.04.2021 PASSED IN MVC NO.5397/2019 ON
THE FILE OF THE VIII ADDITIONAL SMALL CAUSE
JUDGE AND ACMM, MEMBER, MACT, BENGALURU,
(SCCH-5), PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THESE MFAs COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
MFA 6608/2021 is filed by the Insurance Company and MFA 3859/2021 is filed by the claimant under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') being aggrieved by the judgment dated 22.4.2021 passed by MACT, Bengaluru in MVC 5397/2019.
2. Facts giving rise to the filing of the appeals briefly stated are that on 4.8.2019 when the claimant was proceeding on motorcycle bearing registration No.KA-02-JF-1056 near 2nd Cross, BEL Layout, at that time, tipper lorry bearing registration No.KA-03-C- 8865 being driven by its driver 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. 5
3. The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he 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 respondents appeared through their counsel and filed written statements in which the averments made in the petition were denied.
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 examined as PW-1 and Dr.Rajesh M.B. was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P19. On behalf of the respondents, neither any 6 witness was examined nor any document was produced. 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.792,000/- along with interest at the rate of 9% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, the present appeals have been filed.
6. The learned counsel for the claimant has raised the following contentions:
Firstly, even though the claimant claims that he was working as tiles layer and earning Rs.20,000/- per month, but the Tribunal has taken the notional income as merely as Rs.11,000/- per month. 7
Secondly, the claimant has examined the doctor as PW-2. The doctor in his evidence has stated that the claimant has suffered disability of 70% to particular limb and 23.3% to whole body. Due to the disability, the claimant is unable to do his day to day work. But the Tribunal has taken the whole body disability at 15%, which is on the lower side.
Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 25 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 awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are on the lower side. Hence, he sought for allowing the appeal. 8
7. On the other hand, the learned counsel for the Insurance Company has raised following counter contentions:
Firstly, even though the claimant claims that he was earning Rs.20,000/- per month, he has not produced any documents to establish his income. In the absence of proof of income, the income assessed by the Tribunal is on the higher side.
Secondly, the doctor in his evidence has stated that the claimant has suffered disability of 70% to particular limb and 23.3% to whole body. In the cross examination, the doctor has admitted that the fracture sustained by the claimant is one and the same is reunited. The injuries sustained by the claimant are minor in nature. Hence, the whole body disability assessed by the Tribunal at 15% is on the higher side.
Thirdly, considering the injuries sustained by the claimant and considering the age and avocation of the 9 claimant, the overall compensation awarded by the Tribunal is just and reasonable and it does not call for interference.
Fourthly, in view of the Division Bench decision of this Court in the case of Ms.Joyeeta Bose and others -v- Venkateshan.V and others (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the rate of interest granted by the Tribunal at 9% p.a. on the compensation amount is on the higher side and same has to be reduced to 6%. Hence, he sought for dismissal of the appeal.
8. Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.
9. It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver.
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The claimant claims that he was earning Rs.20,000/- per month. He has not produced any documents to prove his income. Therefore, in the absence of proof of income, notional income has to be assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken place in the year 2019, the notional income has to be taken at Rs.14,000/- p.m. As per wound certificate, the claimant has sustained complex friction abrasion injury left ankle, fracture medial malleolous with bone loss, posterior tibial nerve injury with tissue loss and internal degloving of skin and multiple tendon loss. The doctor in his evidence has stated that the claimant has suffered disability of 70% to particular limb and 23.3% to whole body. In the cross examination, the doctor has admitted that the fractures sustained by the claimant is one and the same is reunited. 11 Therefore, taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate, the Tribunal has rightly taken the whole body disability at 15%. The claimant is aged about 38 years at the time of the accident and multiplier applicable to his age group is '15'. Thus, the claimant is entitled for compensation of Rs.378,000/- (Rs.14,000*12*15*15%) on account of 'loss of future income'.
The nature of injuries suggests that the claimant must have been under rest and treatment for a period of 2 months. Therefore, the claimant is entitled for compensation of Rs.28,000/- (Rs.14,000*2 months) under the head 'loss of income during laid up period'.
The claimant was treated as inpatient for more than 25 days in the hospital and thereafter, has received further treatment. Due to the accident, the claimant has suffered grievous injuries and also 12 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.25,000/- to Rs.35,000/-.
The compensation of Rs.80,000/- awarded by the Tribunal under the head of 'pain and sufferings' is on the higher side and hence, the same is reduced to Rs.50,000/-.
Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is 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 80,000 50,000 13 Medical expenses 334,000 334,000 Food, nourishment, 20,000 20,000 conveyance and attendant charges Loss of income during 11,000 28,000 laid up period Loss of amenities 25,000 35,000 Loss of future income 297,000 378,000 Future medical expenses 25,000 25,000 Total 792,000 870,000
11. In the result, the appeals are disposed of. The judgment of the Claims Tribunal is modified.
The claimant is entitled to a total compensation of Rs.870,000/- as against Rs.792,000/- awarded by the Tribunal.
In view of the Division Bench decision of this Court in the case of Ms.Joyeeta Bose and others - v- Venkateshan.V and others (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the interest granted by the Tribunal at the rate of 9% p.a. on the compensation amount is reduced to 6% p.a. 14 The Insurance Company is directed to deposit the compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.
The amount in deposit is ordered to be transferred to the Tribunal forthwith.
In view of disposal of appeal, all pending applications do not survive for consideration.
Sd/-
JUDGE DM