Karnataka High Court
Lakshmikantha vs Yogananda on 29 July, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:29680
MFA No. 7708 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. 7708 OF 2018 (MV)
BETWEEN:
LAKSHMIKANTHA
S/O DODDEGOWDA
AGED ABOUT 23 YEARS
R/AT BAGESHAPURA VILLAGE
GANDASI HOBLI, ARASIKRE TALUK
PRESENTLY R/AT B.T.KOPPALU
ARASIKERE ROAD, HASSAN.
...APPELLANT
(BY SRI. PAVAN T G.,ADVOCATE)
AND:
1. YOGANANDA
S/O DYAVEGOWDA
BAGESHAPURA VILLAGE
Digitally signed by GANDASI HOBLI
HEMALATHA A ARASIKERE TALUK
Location: HIGH HASSAN DISTRICT.
COURT OF
KARNATAKA
2. THE MANAGER
UNITED INDIA INSURANCE COMPANY LTD.,
2ND FLOOR, VENKATESHWARA BUILDING
B.M.ROAD, HASSAN-573 201
...RESPONDENTS
(BY SRI. SREEKANTA RAO., ADVOCATE FOR R2:
NOTICE TO R1 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:21.07.2018
PASSED IN MVC NO.1888/2017 ON THE FILE OF THE II
ADDITIONAL DISTRICT & SESSIONS JUDE & ADDITIONAL
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MFA No. 7708 of 2018
MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, 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 21.07.2018 passed by the II Additional District and Sessions Court & Additional MACT, Hassan (hereinafter referred to as 'the Tribunal') in MVC No.1888/2017.
2. Facts giving rise to the filing of the appeal briefly stated are that on 05.07.2017 at about 5.00 p.m. when the claimant was proceeding on motorcycle bearing registration No.KA-13/Y-8311 as a pillion rider on Kengattegere Mud road, Bageshpura, at that time, the rider of the motorcycle rode the same in a rash and negligent manner, due to which, the motorcycle turned -3- NC: 2024:KHC:29680 MFA No. 7708 of 2018 turtle. 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 rider of the motorcycle.
4. Upon service of notice, the respondent No.2 appeared through counsel and filed written statement denying the averments made in the claim petition. The respondent No.1, despite service of notice, did not appear before the Tribunal and was placed ex-parte.
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.Abdul Basheer was examined as PW-2, and got exhibited documents namely -4- NC: 2024:KHC:29680 MFA No. 7708 of 2018 Ex.P1 to Ex.P17. On behalf of the respondents, neither any witness was examined nor got exhibited documents. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the motorcycle 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.2,43,000/- 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 raised the following contentions:
a) Firstly, the Tribunal erred in assuming the monthly income of the claimant as Rs.7,000/-, despite evidence showing he earned Rs.25,000/- per month by working as an electrician and as an agriculturist.
b) Secondly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for -5- NC: 2024:KHC:29680 MFA No. 7708 of 2018 a period of 7 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 'pain and sufferings' and other incidental expenses are on the lower side and the Tribunal failed to award any compensation under the head 'loss of amenities'.
With the above submissions, learned counsel for the appellant sought to allow the appeal.
7. On the other hand, the learned counsel for the Insurance Company raised the following counter- contentions:
a) Firstly, the assertion of claimant that he was earning Rs.25,000/- 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.-6-
NC: 2024:KHC:29680 MFA No. 7708 of 2018
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, the injuries suffered by the claimant are minor in nature and he was inpatient for only 7 days. 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 'pain and sufferings' and other incidental expenses are just and reasonable and it does not warrant interference.
With the above submissions, 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 05.07.2017 due to rash and negligent driving of the rider of the motorcycle.
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NC: 2024:KHC:29680 MFA No. 7708 of 2018
10. The claimant claims that he was earning Rs.25,000/- 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 2017, notional income shall be taken at Rs.11,000/- p.m.
11. As per wound certificate, the claimant has sustained fracture trochanter left, deep laceration face and mild head injury. The doctor in his evidence has stated that the claimant has suffered disability of 30% to particular limb. 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 10%. The claimant was aged about 22 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.2,37,600/- (Rs.11,000*12*18*10%) on account of 'loss of future income'.
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NC: 2024:KHC:29680 MFA No. 7708 of 2018
12. The nature of injuries indicates that the claimant must have been under rest and treatment for a period of three months. Consequently, the claimant is entitled for compensation of Rs.33,000/- (Rs.11,000*3 months) under the head 'loss of income during laid up period'.
13. The claimant was hospitalized as an inpatient for more than 7 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 awarded compensation of Rs.30,000/- under the head 'loss of amenities'.
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:29680 MFA No. 7708 of 2018 As awarded As awarded by the by this Compensation under Tribunal Court different Heads (Rs.) (Rs.) Pain and sufferings 30,000 30,000 Medical expenses 37,994 37,994 Food, nourishment, 10,000 10,000 conveyance and attendant charges Loss of income during 3,500 33,000 laid up period Loss of amenities 0 30,000 Loss of future income 151,200 237,600 Future medical expenses 10,300 10,300 Total 242,994 Rounded off to 243,000 388,894
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.
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c) The claimant is entitled to a total compensation of Rs.3,88,894/- as against Rs.2,43,000/- awarded by the Tribunal.
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 a 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 CM