Karnataka High Court

Yogesh K R vs Muralidhar J K on 4 December, 2021

Bench: H T Prasad

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF DECEMBER 2021

                       BEFORE

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

               MFA No.6388 OF 2017 (MV)

BETWEEN:

YOGESH K. R.
AGED ABOUT 42 YEARS
S/O RAJEGOWDA
R/O K. KATIHALLI KASABA HOBLI
ALUR TALUK, HASSAN
DISTRICT - 573 201                     ... APPELLANT

(BY SRI.G. S. BYRAREDDY, ADV. FOR
    SMT. KAVITHA H.C., ADV.)

AND:

1.     MURALIDHAR J. K.
       S/O J. T., KRISHNASHETTY
       R/O LAKSHMIPURA EXTENSION
       JAVGAL, ARSIKERE TALUK
       HASSAN DISTRICT - 573 201.

2.     THE MANAGER
       NEW INDIA INSURANCE CO. LTD.
       CHANDANA COMPLEX
       HARSHA MAHAL ROAD
       HASSAN DISTRICT - 573 201.
                                      ... RESPONDENTS

(BY SRI M.P. SRIKANTH, ADV. FOR R2;
    V/O DTD 7.12.2017 NOTICE TO R1 IS D/W)
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     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT,   AGAINST    THE   JUDGMENT    AND    AWARD
DATED:04.04.2017 PASSED IN MVC NO.1066/2014 ON
THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE,
MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THIS MFA, COMING ON FOR ORDERS, THIS DAY,
THIS 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 04.04.2017 passed

by the Motor Accident Claims Tribunal, Hassan in MVC

No.1066/2014.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 11.12.2013, the claimant

along with one Appaji was proceeding in a Maruthi

Omni Car bearing registration No.KA-03-MD-9478,

during that time, near Nagarahalli gate situated in

Gandsi-Dudda road, the driver of the Lorry bearing

registration No.KA-13-A-6552 by driving it in a rash

and negligent manner from opposite direction hit to

the Maruthi Car. 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 owner and insurer of the offending

vehicle have appeared through counsel and only

respondent No.2 has filed written statement in which

the averments made in the petition were denied. It

was pleaded that the petition itself is false and

frivolous in the eye of law. 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.

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-2 and Dr.Abdul Basheer was

examined as PW-3 and got exhibited documents

namely Ex.P.1 to Ex.P.168 and Ex.C.1 to Ex.C.3. On

behalf of the respondents, neither examined any

witness nor exhibited any document. 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.6,35,964/- along with

interest at the rate of 8% 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, even though the claimant claims that he

was doing agricultural and coolie work and earning

Rs.25,000/- per month, but the Tribunal has taken the

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

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered disability of

45% to right lower limb. But the Tribunal has erred in

taking the whole body disability at only 15%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 48 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 suffering' 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, even though the claimant claims that he

was earning Rs.25,000/- 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-3, the doctor has stated in his

evidence that the claimant has suffered disability of

45% to right lower limb. The Tribunal considering the

injuries sustained by the claimant, has rightly

assessed the whole body disability at 15%.

Thirdly, 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 8% interest

which is on the higher side.

Lastly, considering the oral and documentary

evidence, the Tribunal has granted just and

reasonable compensation and it does not call for

interference. Hence, he 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 rash and negligent driving of the offending

vehicle by its driver.

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 2013, the notional income has to be taken at

Rs.8,000/- p.m.

As per wound certificate, the claimant has

sustained comminuted fracture upper middle 1/3rd

fracture right tibia with intra articular extension and

right distal fibula fracture with intact syladesmosis.

PW-3, the doctor has stated in his evidence that the

claimant has suffered disability of 45% to right lower

limb. Therefore, taking into consideration the

deposition of the doctor, PW-3 and injuries mentioned

in the wound certificate, the Tribunal has rightly

assessed the whole body disability at 15%. The

claimant is aged about 40 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.2,16,000/- (Rs.8,000*12*15*15%) 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 6 months. Therefore, the claimant is entitled for

compensation of Rs.48,000/- (Rs.8,000*6 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 48 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 'loss of amenities' from

Rs.50,000/- to Rs.65,000 and 'pain and suffering'

from Rs.50,000/- to Rs.65,000/-.

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 50,000 65,000 Medical expenses 2,62,964 2,62,964 Food, nourishment, 25,000 25,000 conveyance and attendant charges Loss of income during 36,000 48,000 laid up period

Loss of amenities 50,000 65,000 Loss of future income 1,62,000 2,16,000 Future medical expenses 50,000 50,000 Total 6,35,964 7,31,964

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.7,31,964/-.

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 excluding interest

for the compensation awarded under the head of

'future medical expenses'. The enhanced