Karnataka High Court
Vijayakumar K vs Syed Mohammed on 31 July, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:30156
MFA No. 4084 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 4084 OF 2020 (MV)
BETWEEN:
VIJAYAKUMAR K
S/O LATE K C KALEGOWDA
AGED ABOUT 38 YEARS
CHINAKURALI HOBLI
PANDAVAPURA TALUK- 571455
...APPELLANT
(BY SRI. PRAKASHA H C.,ADVOCATE)
AND:
1. SYED MOHAMMED
S/O SYED ABDUL RASEED
MAJOR, R/AT NO. 10/6A, JEEVANPURA
CHANNAPATTNA TOWN
RAMANGARA DISTRICT-562160.
Digitally signed by
HEMALATHA A 2. THE MANAGER
Location: HIGH UNITED INDIA INSURANCE CO LTD
COURT OF T P HAB NO. 1134
KARNATAKA
DEVARU MANSION BUILDING
PRINCE OF VELS ROAD
CHAMARAJAPURAM, MYSURU 570001
...RESPONDENTS
(BY SRI. L SREEKANTA RAO., ADVOCATE FOR R2: NOTICE TO
R1 DISPENSED VIDE ORDER DATED 12.12.2022)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 08.04.2019
PASSED IN MVC NO.963/2017 ON THE FILE OF THE JUDGE,
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NC: 2024:KHC:30156
MFA No. 4084 of 2020
PRINCIPAL COURT OF SMALL CAUSES, MYSURU, AS A
PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL,
MYSURU, 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 08.04.2019 passed by the Motor Accident Claims Tribunal, Mysuru (hereinafter referred to as 'the Tribunal') in MVC No.963/2017.
2. Facts giving rise to the filing of the appeal briefly stated are that on 05.07.2017 at about 9.30 p.m. when the claimant was proceeding in 407 Tempo bearing registration No.KA-12/A-0298 with ginger. When he reached near Channapatna KSRTC bus sand, at that time, a cantor bearing registration No.KA-45/1991 being driven -3- NC: 2024:KHC:30156 MFA No. 4084 of 2020 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 respondent Nos.1 and 2 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.Karunakar was examined as PW-2, and got exhibited documents namely -4- NC: 2024:KHC:30156 MFA No. 4084 of 2020 Ex.P1 to Ex.P15. 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 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.2,40,400/- 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.9,000/-, despite claiming that he earned Rs.20,000/- per month by doing agriculture.
b) Secondly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for -5- NC: 2024:KHC:30156 MFA No. 4084 of 2020 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 'loss of amenities', 'pain and sufferings' and other incidental expenses are on the lower side and the Tribunal has not awarded any compensation under the head 'incidental expenses'.
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.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.-6-
NC: 2024:KHC:30156 MFA No. 4084 of 2020
b) Secondly, the Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 7%.
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 'loss of amenities', '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 -7- NC: 2024:KHC:30156 MFA No. 4084 of 2020 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 2017, notional income shall be taken at Rs.11,000/- p.m.
11. As per wound certificate, the claimant has sustained fracture distal end of radius left and other injuries. 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 7%. The claimant was aged about 36 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.1,38,600/- (Rs.11,000*12*15*7%) on account of 'loss of future income'.
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NC: 2024:KHC:30156 MFA No. 4084 of 2020
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 enhance the compensation awarded by the Tribunal under the head of 'pain and sufferings' from Rs.20,000/- to Rs.40,000/- and under the head of 'loss of amenities' from Rs.20,000/- to Rs.40,000/-. The claimant is also entitled to compensation of Rs.10,000/- under the head 'incidental expenses'.
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NC: 2024:KHC:30156 MFA No. 4084 of 2020
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 Court
Compensation under
Tribunal
different Heads (Rs.)
(Rs.)
Pain and sufferings 20,000 40,000
Medical expenses and 60,000 60,000
nourishment
Incidental expenses 0 10,000
Loss of income during laid 27,000 33,000
up period
Loss of amenities 20,000 40,000
Loss of future income 1,13,400 1,38,600
Total 2,40,400 3,21,600
16. In the result, the following order is passed:
ORDER
a) The appeal is allowed in part.
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NC: 2024:KHC:30156 MFA No. 4084 of 2020
b) The judgment of the Claims Tribunal is modified.
c) The claimant is entitled to a total compensation of Rs.3,21,600/- as against Rs.2,40,400/- 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.
e) In view of the order dated 12.12.2022 passed by this Court, the claimant is not entitled to interest on the enhanced compensation for the delayed period of 183 days in filing the appeal.
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(H.T. NARENDRA PRASAD) JUDGE CM List No.: 2 Sl No.: 27