Karnataka High Court
Imran vs Jai Prakash on 29 July, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:29763
MFA No. 1804 of 2018
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. 1804 OF 2018 (MV)
BETWEEN:
IMRAN
S/O KHASIM SAB
AGED ABOUR 24 YEARS
R/AT HUNASEHALLI GRAMA
GOWDAGERE HOBLI
SIRA TALUK TUMAKURU DISTRICT-572137
...APPELLANT
(BY SRI. SHANTHARAJ K.,ADVOCATE)
AND:
1. JAI PRAKASH
S/O RAMACHANDRAIAH
AGED ABOUT 49 YERS
R/AT HOSAPALYA
BUKKAPATNA HOBLISIRA TALUK
TUMAKURU DISTRICT-572137.
Digitally signed by
HEMALATHA A
Location: HIGH 2. HDFC ERGA GENERAL INSURANCE COMPANY LTD
COURT OF REPRESENTED BY ITS MANAGER
KARNATAKA
2ND FLOOR, GENEVA HOUSE
CUNNINGHAM ROAD, BENGALURU-560052
...RESPONDENTS
(BY SRI.C.S. HIRMATH., ADVOCATE FOR R1:
SRI. H.S. LINGARAJ, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:04.11.2016
PASSED IN MVC NO.1422/2014 ON THE FILE OF SENIOR CIVIL
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NC: 2024:KHC:29763
MFA No. 1804 of 2018
JUDGE AND ADDITIONAL MACT,AND J.M.F.C., SIRA PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, 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 04.11.2016 passed by MACT, Sira in MVC No.1422/2014.
2. Facts giving rise to the filing of the appeal briefly stated are that on 14.12.2012 when the claimant was standing alone along with his motorcycle on the left side of Herur-Javagondanahalli road, Sira Taluk, at that time, lorry bearing registration No.KA-06-C-5811 being driven by its driver at a high speed and in a rash and negligent -3- NC: 2024:KHC:29763 MFA No. 1804 of 2018 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 filed written 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.Sridhar was examined as PW-2, and got exhibited documents namely Ex.P1 to -4- NC: 2024:KHC:29763 MFA No. 1804 of 2018 Ex.P9. On behalf of the respondents, no witness was examined but got exhibited documents namely Ex.R1 and Ex.R2. 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.160,600/- 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.
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.6,000/-, despite evidence showing he earned Rs.15,000/- per month by doing sheep business.-5-
NC: 2024:KHC:29763 MFA No. 1804 of 2018
b) Secondly, the claimant has examined the doctor as PW-2. The Tribunal undervalued the claimant's whole-body disability at 10%, contradicting the evidence of the doctor that the claimant suffered 45% disability to particular limb and 15% to whole body.
c) Lastly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient. 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.
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:
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a) Firstly, the assertion of claimant that he was earning Rs.15,000/- 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 10%.
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 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. -7-
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9. It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 14.12.2012 due to rash and negligent driving of the offending vehicle by its driver.
10. The claimant claims that he was earning Rs.15,000/- 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 2012, notional income shall be taken at Rs.7,000/- p.m.
11. As per wound certificate, the claimant has sustained fracture on left medial malleolus, fracture of right 5th metatarsal bone and swelling. The doctor in his evidence has stated that the claimant has suffered disability of 45% to particular limb and 15% to whole body. Therefore, taking into consideration the deposition of the doctor and -8- NC: 2024:KHC:29763 MFA No. 1804 of 2018 injuries mentioned in the wound certificate, the whole body disability can be taken at 15%. The claimant is aged about 20 years at the time of the accident and multiplier applicable to his age group is '18'. Thus, the claimant is entitled for compensation of Rs.226,800/- (Rs.7,000*12*18*15%) 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 2 months. Consequently, the claimant is entitled for compensation of Rs.14,000/- (Rs.7000*2 months) under the head 'loss of income during laid up period'.
13. The claimant was hospitalized as an inpatient 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 -9- NC: 2024:KHC:29763 MFA No. 1804 of 2018 the compensation awarded by the Tribunal under the head of 'pain and sufferings' from Rs.10,000/- to Rs.30,000/- and under the head of 'loss of amenities' from Rs.10,000/- to Rs.30,000/-.
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:
As awarded As awarded
by the by this
Compensation under
Tribunal Court
different Heads
(Rs.) (Rs.)
Pain and sufferings 10,000 30,000
Medical, Food, 5,000 5,000
nourishment,
conveyance and
attendant charges
Loss of income during 6,000 14,000
laid up period
Loss of amenities 10,000 30,000
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MFA No. 1804 of 2018
Loss of future income 129,600 226,800
Total 160,600 305,800
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.305,800/-.
d) In respect of liability is concerned, in view of order dated 15.03.2019 passed by the Tribunal in Review Mis.No.01/2017, 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.
e) In view of the order dated 03.11.2022 passed by this Court, the claimant is not entitled to interest on the
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NC: 2024:KHC:29763 MFA No. 1804 of 2018 enhanced compensation for the delayed period of 363 days in filing the appeal.
Sd/-
(H.T. NARENDRA PRASAD) JUDGE DM List No.: 1 Sl No.: 81