Karnataka High Court
Sri. K. A. Raju vs Robin Joseph on 29 July, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:29766
MFA No. 5672 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 5672 OF 2019 (MV)
BETWEEN:
SRI. K. A. RAJU
S/O. SRI. ANJANEYA SHETTY
AGED ABOUT 67 YEARS
BUSINESS
R/O. SHANKARPURA
CHIKKAMAGALURU TOWN
CHIKKAMAGALURU
...APPELLANT
(BY SRI. PRADEEP NAIK K.,ADVOCATE)
AND:
1. ROBIN JOSEPH
S/O. JOSEPH K M
ENGINEER
Digitally signed by R/AT NO. 19, LIJORA NILAYA
HEMALATHA A DWARKANAGAR, CHIKKABANAVARA
Location: HIGH HESARAGHATTA MAIN ROAD
COURT OF
KARNATAKA BENGLAURU-90.
2. THE MANAGER
THE UNITED INDIA INSURANCE CO LTD
CRESCENT COURT
1ST FLOOR, CHIKKAMAGALURU.
3. THE MANAGER
TATA AIG GENERAL INSURANCE CO LTD
2ND FLOOR,JP & DEVI JAMBUKESHWAR ARCADE
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NC: 2024:KHC:29766
MFA No. 5672 of 2019
NO. 69, MILLERS ROAD
BENGALURU
...RESPONDENTS
(BY SRI. B PRADEEP., ADVOCATE FOR R3:
NOTICE TO R1 & R2 ARE DISPENSED WITH
V/O DATED: 23.06.2023)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:25.01.2019
PASSED IN MVC NO.323/2017 ON THE FILE OF THE 1ST
ADDITIONAL SENIOR CIVIL JUDGE, AMACT,
CHIKKAMAGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
ORAL JUDGMENT
1. This appeal under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') has been filed by the claimant being aggrieved by the judgment dated 25.01.2019 passed by MACT, Chikkamagaluru in MVC No.323/2017.
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NC: 2024:KHC:29766 MFA No. 5672 of 2019
2. Facts giving rise to the filing of the appeal briefly stated are that on 26.11.2016 when the claimant was proceeding on TVS XL motorcycle bearing registration No.KA-18-J-9614 near Magadi Village on Tank Bund road towards Belur, at that time, car bearing registration No.KA-04-MK-5787 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of 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, seeking compensation. It was pleaded that he spent significant amount towards medical expenses, conveyance charges and other related costs. It was further pleaded that the accident occurred solely on account of rash and negligent driving of the offending vehicle by its driver.
4. Upon service of notice, the respondents appeared through counsel and respondent Nos.2 and 3 filed written -4- NC: 2024:KHC:29766 MFA No. 5672 of 2019 statements denying the averments made in the claim petition.
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 the case, examined himself as PW-1, and Dr.Ullas Shetty was examined as PW-2, and got exhibited documents namely Ex.P1 to Ex.P120. On behalf of the respondents, neither any 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.495,360/- 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, the present appeal has been filed.
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NC: 2024:KHC:29766 MFA No. 5672 of 2019
6. The learned counsel for the claimant has raised the following contentions:
a) Firstly, the Tribunal erred in assuming the monthly Income of the claimant as Rs.8,000/-, despite evidence showing he earned Rs.20,000/- per month by doing hotel business.
b) Secondly, the claimant has examined the doctor as PW-2 and doctor has assessed the disability at 58%.
Based on the evidence of the doctor, the Tribunal has rightly taken the whole body disability at 19.30%.
c) Lastly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 15 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.
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NC: 2024:KHC:29766 MFA No. 5672 of 2019 With the above contentions, learned counsel for the appellant sought to allow the appeal.
7. On the other hand, the learned counsel for the Insurance Company has raised the following counter- contentions:
a) Firstly, the assertion of claimant that he was earning Rs.20,000/- per month, remains unsubstantiated due to lack of documentary evidence. In the absence of proof of income, the Tribunal has assessed the income of the claimant notionally.
b) Secondly, the Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 19.30%.
c) Thirdly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and -7- NC: 2024:KHC:29766 MFA No. 5672 of 2019 other incidental expenses are just and reasonable and it does not warrant interference.
With the above contentions, learned counsel for the Insurance Company sought to dismiss 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 on 26.11.2016 due to rash and negligent driving of the offending vehicle by its driver.
10. The claimant claims that he was earning Rs.20,000/- per month. But he has not produced any documents to substantiate his claim. Therefore, in the absence of proof of Income, notional income has to be assessed. According to the guidelines issued by the Karnataka State Legal Services Authority, for accidents occurred in the year 2016, notional Income shall be taken at Rs.9,500/- p.m. -8- NC: 2024:KHC:29766 MFA No. 5672 of 2019
11. As per wound certificate, the claimant has sustained abrasions over right forearm and leg and contusions over right leg underlying fracture of tibia and fibula, contusion over left occipital region, tenderness and swelling. The doctor in his evidence has stated that the claimant has suffered disability of 58%. 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 19.30%. The claimant is aged about 65 years at the time of the accident and multiplier applicable to his age group is '7'. Thus, the claimant is entitled for compensation of Rs.154,014/- (Rs.9,500*12*7*19.30%) on account of 'loss of future income'.
12. The nature of injuries indicates that the claimant must have been under rest and treatment for a period of 5 months. Consequently, the claimant is entitled for -9- NC: 2024:KHC:29766 MFA No. 5672 of 2019 compensation of Rs.47,500/- (Rs.9,500*5 months) under the head 'loss of income during laid up period'.
13. The claimant was hospitalized as an inpatient for more than 15 days in the hospital and subsequently received further treatment. Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. Considering the prolonged pain during treatment as well as the permanent disability certified by the doctor, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'loss of amenities' from Rs.30,000/- to Rs.50,000/-.
14. Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.
15. Thus, the claimant is entitled to the following compensation:
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NC: 2024:KHC:29766
MFA No. 5672 of 2019
As awarded As awarded
by the by this
Compensation under
Tribunal Court
different Heads
(Rs.) (Rs.)
Pain and sufferings 60,000 60,000
Medical expenses 209,408 209,408
Food, nourishment, 25,000 25,000
conveyance and
attendant charges
Loss of income during 16,000 47,500
laid up period
Loss of amenities 30,000 50,000
Loss of future income 129,892 154,014
Vehicle repair charges 5,060 5,060
Future medical expenses 20,000 20,000
Total 495,360 570,982
16. In the result, the following order is passed:
ORDER
a) The appeal is allowed in part.
b) The judgment of the Claims Tribunal is modified.
c) The claimant is entitled to a total compensation of Rs.570,982/-
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NC: 2024:KHC:29766 MFA No. 5672 of 2019
d) 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. However, interest shall not be applicable to the compensation awarded under the head of 'future medical expenses'.
Sd/-
(H.T. NARENDRA PRASAD) JUDGE DM List No.: 1 Sl No.: 69