Ramaprasad vs The Manager
2021 Latest Caselaw 5187 Kant

                        1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 1ST DAY OF DECEMBER 2021

                      BEFORE

  THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

             MFA No.3397 OF 2016(MV)

BETWEEN:

RAMAPRASAD
S/O JAYAPAUL
AGED ABOUT 22 YEARS
NO.77, N R TOWER, 3RD FLOOR
100 FT ROAD, BSK 3RD STAGE
5TH BLOCK
BANGALORE-560085
                                       ...APPELLANT
(BY SRI. SHANTHARAJ, ADV.
SRI.VASUDEVAMURTHY B K., ADV.)

AND


1 . THE MANAGER
    UNITED INDIA INSURANCE CO LTD
    REGIONAL OFFICE, 5TH FLOOR
    KRISHI BHAVAN, HUDSON CIRCLE
    BANGALORE-560001.

2 . T J NAIK AND CO
    GAT NO:1801,3,4
    A/P KURKUMBH DAUD
    PUNE DISTRICT
    MAHARASHTRA-413802.
                                    ...RESPONDENTS
                               2




(BY SRI.L SREEKANTA RAO, ADV. FOR R1:
    R2 SERVED )

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:30.01.2016 PASSED
IN MVC NO.35/2012 ON THE FILE OF THE X ADDITIONAL
JUDGE, MACT, COURT OF SMALL CAUSES, BANGALORE,
PARTLY   ALLOWING     THE    CLAIM   PETITION   FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THIS MFA COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimant being

aggrieved by the judgment dated 30.01.2016 passed

by the Motor Accident Claims Tribunal, Bengaluru in

MVC No.35/2012.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 22.07.2011 at about 02.20

A.M. the claimant being cleaner-cum-loader of Tipper

Lorry bearing registration No.MH-42-B-8440 was

Lorry bearing registration No.MH-42-B-8440 was

proceeding on BB Road and when the vehicle reached

near Kogilu cross junction, all of a sudden the driver

of the said vehicle drove the same in a rash and

negligent manner and jumped the red signal. Due to

over speed, the driver lost control over the vehicle

and dashed against the another goods Truck bearing

No.KA.05/D.4561. 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 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 respondent Nos.1

and 2 being the insurer and owner of the offending

vehicle have appeared through counsel and filed

written statement in which the averments made in the

petition were denied. It was pleaded by the Insurance

Company that the petition itself is false and frivolous

in the eye of law. It was further pleaded that the

claim petition is bad for non joinder of necessary

parties as the owner and insurer of goods truck are

not made as parties to this petition and they are

necessary parties to the proceedings. It was further

pleaded that the claimant traveled in the goods lorry

as a gratuitous passenger and the petition is not

maintainable. The age, avocation and income of the

claimant and the medical expenses are denied. Hence,

he prays for dismissal of the petition.

It was pleaded by respondent No.2 that the

accident was not due to the negligent driving of the

offending vehicle. The driver of the offending vehicle

did not have valid driving licence as on the date of the

accident. The age, avocation and income of the

claimant and the medical expenses are denied. It was

further pleaded that the quantum of compensation

claimed by the claimant is exorbitant. Hence, he

sought for dismissal of the petition.

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.S.A.Somashekar was

examined as PW-2 and got exhibited documents

namely Ex.P.1 to Ex.P.12. On behalf of the

respondents, one witness was examined as RW-1 and

got exhibited a document namely Ex.R.1-Station

Diary. 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.2,60,400/- 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, this appeal has been filed.

6. The learned counsel for the claimant has

raised the following contentions:

Firstly, the claimant was working as cleaner-

cum-loader but the monthly income assessed by the

Tribunal Rs.5,000/- is on lower side.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

33% to left lower limb and 17% to whole body. But

the Tribunal without giving any reason has considered

the whole disability at 12% is on lower side. The

doctor PW-2, who in his testimony stated that the

claimant has to undergo one more surgery for removal

of implants which may cost approximately Rs.30,000/-

towards 'future medical expenses'. But the Tribunal

has granted Rs.10,000/- is also on lower side.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 11 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 granted by the Tribunal under the

heads of 'loss of amenities', 'pain and sufferings' and

other heads are on the lower side. Hence, he sought

for enhancement of compensation.

7. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Firstly, the Tribunal considering the evidence of

the parties and material available on record, has

rightly assessed the monthly income of the claimant

as Rs.5,000/-.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

33% to left lower limb and 17% to whole body. The

Tribunal considering the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 12%.

Thirdly, due to the accident, the injuries suffered

by the claimant are minor in nature and he was

inpatient in the hospital only for a period of 11 days.

Considering the oral and documentary evidence, the

compensation awarded by the Tribunal under the

heads of 'pain and suffering' and 'loss of amenities'

and other charges is just and reasonable and it does

not call for interference.

Lastly, in view of judgment of the Division Bench

of this Court in the case of MS.JOYEETA BOSE AND

OTHERS vs. VENKATESHAN.V AND OTHERS (MFA

5896/2018 and connected matters disposed of on

24.8.2020), the claimants are entitled for 6% interest

but the Tribunal has granted 9% interest which is on

the higher side. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award and original

records.

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 driver of the

tipper lorry bearing registration No.MH-42/B.8440.

The claimant has not produced any documents

with regard to his income. Therefore, the notional

income has to be assessed as per the guidelines

issued by the Karnataka State Legal Services

Authority. Since the accident has taken place in the

year 2011, the notional income has to be taken at

Rs.6,500/- p.m.

As per wound certificate, the claimant has

sustained fracture of bimalleolar fracture dislocation of

left ankle and treated surgically in the form of open

reduction and internal fixation using plate and screws

for fracture of lateral malleolus and malleloar screw

and 'K' wires for fracture of medial malleolus. PW-2,

the doctor has stated in his evidence that the claimant

has suffered disability of 33% to left lower limb and

17% to whole body. Therefore, taking into

consideration the age, avocation of the claimant and

deposition of the doctor, PW-2 and injuries mentioned

in the wound certificate, the Tribunal has rightly taken

whole body disability at 12%. The claimant is aged

about 18 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.1,68,480/- (Rs.6,500*12*18*12%) 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 3 months. Therefore, the claimant is entitled for

compensation of Rs.19,500/- (Rs.6,500*3 months)

under the head 'loss of income during laid up period'.

The claimant was treated as inpatient for more

than 11 days in the hospital and thereafter, has

received further treatment. Hence, I am inclined to

enhance the compensation awarded under the head of

'conveyance, nourishment and attendance charges'

from Rs.10,000/- to Rs.15,000/-.

Due to the accident, the claimant has suffered

grievous injuries and also 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.10,000/- to Rs.30,000/- and 'pain and suffering'

from Rs.35,000/- to Rs.40,000/-.

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 35,000 40,000 Medical expenses 50,400 50,400 Food, nourishment, 10,000 15,000 conveyance and attendant charges Loss of income during 15,000 19,500 laid up period Loss of amenities 10,000 30,000 Loss of future income 1,30,000 1,68,480

Future medical expenses 10,000 10,000 Total 2,60,400 3,33,380

11. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.3,33,380/-.

The Insurance Company is directed to deposit

the compensation amount along with interest 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 enhanced

compensation shall carry interest at 6% per annum.

The Tribunal is directed to release the enhanced compensation amount in favour of the claimant after due verification.

Sd/-

JUDGE

HA/-