Karnataka High Court

Gowri Shankar vs Imran Ulla Khan on 2 December, 2021

Bench: H T Prasad

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 2ND DAY OF DECEMBER 2021

                     BEFORE

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

           MFA No.5753 OF 2019 (MV)

BETWEEN:

GOWRI SHANKAR
S/O DEVRAJ
AGED ABOUT 33 YEARS
R/AT NO.2, PREETHI NILAYAM
5TH CROSS, 1ST MAIN
GURURAJ LAYOUT
DODDAANEKKUNDI
MARTHALLI, BANGALORE - 560 037

PERMANENT R/AT NO.9/161/189A
RADHAKRISHNA STREET
THIRUMURUGAN POONDI
THIRUPPUR, ANUPPAPALYAM
COIMBATORE, TAMILNADU
                                     ...APPELLANT
(BY SRI. SHRIPAD V. SHASTRI, ADV.)

AND


1.    IMRAN ULLA KHAN
      S/O ABBAS KHAN
      R/AT NO.16/11
      VIDYA SAGAR MAIN ROAD
                            2



     SAREPALYA
     BANGALORE - 560 077

2.   THE ORIENTAL INSURANCE CO. LTD.
     REGIONAL OFFICE
     LEO SHOPPING COMPLEX
     RESIDENCY ROAD CROSS
     MG ROAD
     BENGALURU - 560 001
     BY ITS MANAGER             ...RESPONDENTS

(BY SRI. K.SURESH, ADV. FOR R2:
NOTICE TO R1 IS D/W V/O DATED:02.12.2021)


    THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD
DATED 26.06.2018 PASSED IN MVC NO. 6184/2016
ON THE FILE OF THE MEMBER, MACT, XVI
ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
BENGALURU CITY, SCCH-14, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS MFA COMING ON FOR ORDERS, 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 26.6.2018 passed

by the Motor Accident Claims Tribunal, Bangalore in

MVC 6184/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 16.6.2016, the claimant was

riding motorcycle bearing registration No.TN-22-BR-

3560 from Marathalli towards his working place at JP

nagar, near Ibblur down ramp, at that time, car

bearing registration No.KA-03-AC-8135 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 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 No.2

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. The respondent No.1 did not appear before

the Tribunal inspite of service of notice 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 himself was

examined as PW-1 and Dr.Avinash Parthasarathi was

examined as PW-3 and other witnesses as PW-2, 4

and 5 and got exhibited documents namely Ex.P1 to

Ex.P33. On behalf of the respondents, one witness

was examined as RW-1 and got exhibited documents

namely Ex.R1 to Ex.R5. 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.139,000/- 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 claims that he was working

as a Software Engineer and earning Rs.1,00,000/- per

month. PW-3 the doctor has stated in his evidence

that the claimant has suffered disability 14% to whole

body. Due to the accident, the claimant has sustained

grievous injuries. He was treated as inpatient for a

period of 6 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. There is loss of earning capacity. But the

Tribunal has failed to grant any compensation under

the head of 'loss of earning capacity'.

Secondly, the claimant claims that he has taken

84 days leave and produced leave certificate and

salary certificate. But the Tribunal has failed to grant

any compensation under the head of 'loss of income

during laid-up period'.

Thirdly, considering the nature of injuries, 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 allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Firstly, even though PW-3, the doctor has stated

in his evidence that the claimant has suffered

disability of 14% to whole body, the claimant after

recovering from the injuries has continued his service

and there is no loss of income. Hence, the Tribunal

has rightly not granted any compensation under the

head of 'loss of earning capacity'.

Secondly, even though the claimant claims that

he has taken 84 days leave and produced leave

certificate and salary certificate, but he has not

examined his employer to prove that he has not

received any amount or salary for the said period.

Therefore, the Tribunal has rightly not awarded any

compensation for 'loss of income during laid-up

period'.

Thirdly, considering the oral and documentary

evidence and considering the age and avocation of the

claimant, the Tribunal has granted just and reasonable

compensation and it does not call for interference.

Fourthly, the interest awarded by the Tribunal at

9% p.a. on the compensation amount 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 of the Tribunal.

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 offending

vehicle by its driver.

As per wound certificate, the claimant has

sustained external communited fracture with

dislocation of left ankle, abrasions over lateral

malleolar left, tenderness over left lateral thigh. PW-3,

the doctor has stated in his evidence that the claimant

has suffered disability of 14% to whole body. The

claimant has failed to prove that due to the said

disability, there is loss of earning capacity. Moreover,

he has admitted that he has continued his job and

getting the said salary. Therefore, the Tribunal has

rightly not granted any compensation under the head

'loss of earning capacity'.

The claimant was treated as inpatient for more

than 6 days in the hospital and thereafter, has

received further treatment. He had availed 84 days

leave as per leave certificate produced by the claimant

at Ex.P22. Considering the same, the claimant is

entitled for compensation of Rs.30,000/- under the

head 'loss of income during laid up period'.

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.25,000/- to Rs.75,000/- and under the head of

'pain and sufferings' from Rs.30,000/- to Rs.50,000/-.

Considering the nature of injuries, 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 30,000 50,000 Medical expenses 64,000 64,000 Food, nourishment, 10,000 10,000 conveyance and attendant charges Loss of income during 0 30,000 laid up period Loss of amenities 25,000 75,000 Future medical expenses 10,000 10,000 Total 139,000 239,000

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.239,000/-.

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 amount shall carry

interest at 6% p.a.

In view of the order passed by this Court, the