B M Ashoka vs The Divisional Controller
2021 Latest Caselaw 5359 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF DECEMBER 2021

                        BEFORE

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

              MFA No.4988 OF 2016(MV)

BETWEEN:

B M ASHOKA
AGED ABOUT 27 YEARS
S/O MUNIYAPPA
R/AT C/O SHANKARAPPA
1ST MAIN, 2ND CROSS
MUNESHWARA NAGAR
KOLAR-563 101.
                                         ...APPELLANT

(BY SMT. NAZEEFA M MULLA, ADV. FOR
SRI.PAVANA CHANDRA SHETTY H., ADV.)

AND


1.     THE DIVISIONAL CONTROLLER
       KSRTC KOLAR DEPOT
       CHICKBALLAPUR ROAD
       KOLAR-563 101.

2.     T LOKANATH
       S/O THIMMANNA
       R/AT K.K.CIRCLE
       CHITRADURGA-577501.

3.     M/S SHRIRAM GENERAL INSURANCE CO LTD.,
       INDIA TOWERS
                            2



     4TH FLOOR, 4TH CROSS
     WILSON GARDEN
     BENGALURU-560 005
     REP BY ITS MANAGER.
                                        ...RESPONDENTS

(BY SRI. K NAGARAJA, ADV. FOR R1:
    SRI. B.C. SHIVANNE GOWDA, ADV. FOR R3)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 27.01.2016 PASSED
IN MVC NO.219/2012 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CJM AND MACT, KOLAR,
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 27.01.2016 passed

by the Motor Accident Claims Tribunal, Kolar in MVC

No.219/2012.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 08.06.2012 when the

claimant was proceeding towards Mulbagal town from

his Village Bevahalli on a two wheeler bearing

registration No.TN-21-AF-4124 at about 09.30 A.M.

when he reached a place near N.Vaddahalli check post

on NH-4, the driver of the KSRTC bus bearing

registration No.KA-07-F-1154 from Mulbagalu which

was going towards Nangali dashed to the two wheeler.

Due to impact, the claimant has fell down at the same

time, lorry bearing registration No.KA-16-A-5174

which was coming from Nangali towards Mulbagal at a

rash speed, ran over the body of the claimant, who

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 drivers of KSRTC Bus

bearing registration No.KA-07-F-1154 and the lorry

bearing registration No.KA-16-A-5174.

4. On service of notice, the respondent Nos.1

and 3 have appeared through counsel and filed

separate written statements in which the averments

made in the petition were denied. It was pleaded by

respondent No.1 that the petition itself is false and

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

the accident was due to the rash and negligent driving

of the lorry by its driver. 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 claim petition.

It was pleaded by respondent No.3 that the

petition itself is false and frivolous in the eye of law. It

was further pleaded that the accident was due to the

rash and negligent driving of the KSRTC Bus by its

driver. The liability is subject to terms and conditions

of the policy. 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.

The respondent No.2 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.Imran Hussain was

examined as PW-2 and got exhibited documents

namely Ex.P.1 to Ex.P.13. On behalf of the

respondents, two witnesses were examined as RW-1

and RW-2 but no document has been exhibited. The

Claims Tribunal, by the impugned judgment, inter alia,

held that the accident took place on account of rash

and negligent driving of the both KSRTC Bus and Lorry

by its drivers, as a result of which, the claimant

sustained injuries. The Tribunal further held that the

claimant is entitled to a compensation of

Rs.3,02,600/- along with interest at the rate of 6%

p.a. and directed both Corporation and Insurance

Company to deposit 50% each of 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, even though the claimant claims that he

was doing coolie work and earning Rs.9,000/- per

month, but the Tribunal has taken the notional income

as merely as Rs.6,000/- per month.

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

evidence that the claimant has suffered disability of

48% to left lower limb and 16% to whole body. But

the Tribunal has erred in taking the whole body

disability at only 10%.

Lastly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 12 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. The Tribunal has

failed to grant any compensation for 'loss of income

during the laid up period'. Hence, he sought for

allowing the appeal.

7. On the other hand, the learned counsel for

the Corporation and Insurance Company has raised

following counter contentions:

Firstly, even though the claimant claims that he

was earning Rs.9,000/- per month, he has not

produced any documents to establish his income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

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

evidence that the claimant has suffered disability of

48% to left lower limb and 16% to whole body. The

Tribunal considering the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 10%.

Lastly, considering the oral and documentary

evidence, the Tribunal has granted just and

reasonable compensation and it does not call for

interference. Hence, they sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to the involvement of the KSRTC Bus bearing

registration No.KA-07-F-1154 and lorry bearing

registration No.KA-16-A-5174.

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 2012, the notional income has to be taken at

Rs.7,000/- p.m.

As per wound certificate, the claimant has

sustained open type-II left femur shaft fracture. PW-2,

the doctor has stated in his evidence that the claimant

has suffered disability of 48% to left lower limb and

16% to whole body. Therefore, taking into

consideration the deposition of the doctor, PW-2 and

injuries mentioned in the wound certificate, I am of

the opinion that the whole body disability can be

taken at 16%. The claimant is aged about 23 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.2,41,920/-

(Rs.7,000*12*18*16%) 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.21,000/- (Rs.7,000*3 months)

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 was

treated as inpatient for more than 12 days in the

hospital. 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 'pain and suffering' from

Rs.25,000/- to Rs.35,000/-.

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 25,000 35,000 Medical expenses 1,08,000 1,08,000 Food, nourishment, 10,000 10,000 conveyance and attendant charges Loss of income during 0 21,000 laid up period Loss of amenities 30,000 30,000 Loss of future income 1,29,600 2,41,920 Total 3,02,600 4,45,920

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.4,45,920/-.

The Corporation and the Insurance Company is

directed to deposit 50% each of 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.

Sd/-

JUDGE

HA/-