Sri. Girish V. B vs The United India Insurance Co. Ltd
2021 Latest Caselaw 5537 Kant

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 6TH DAY OF DECEMBER 2021

                         BEFORE

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

                MFA No.5621 OF 2019(MV)

BETWEEN:

Sri. Girish V.B.,
S/o Sonnappa,
Aged about No.508,
1st Cross, Near Ring Road,
Saraswathi Nagar,
Mahadevapura,
Bengaluru-560 048.                        ... Appellant

(By Sri. Harish N.R., Advocate)

AND:

1.     The United India Insurance
       Co. Ltd.,
       Regional Office,
       5th & 6th Floor,
       Krishi Bhavan,
       Nrupatunga Road,
       Bengaluru-560 001.

2.     Sri. Madhu B.M.,
       S/o Madaiah,
       Aged about 31 years,
       No.24, 3rd Cross,
       Canara Bank Road,
       Konanakunte Cross,
       Kanakapura Main Road,
                             2



     Bengaluru -560 062.            ... Respondents

(By Sri. S.Krishna Kishore, Advocate for R1:
Notice to R2 is D/w v/o dated: 31.01.2020 )

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:28.02.2019 passed
in MVC No.609/2018 on the file of the Chief Judge, Court
of Small Causes, Member, Principal MACT., Bengaluru
(SCCH-1), 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 28.02.2019 passed

by the Motor Accident Claims Tribunal, Bengaluru

(SCCH-1) in MVC No.609/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 12.11.2017 at about 7.30

p.m. the claimant was proceeding as a pillion rider in

the motorcycle bearing registration No.KA-53/EF-2140

from Vaderahalli village to Bangalore on Kanakapura -

Bangalore road along with a pillion rider. When they

reached near Agara cross, at that time, a car bearing

registration No.KA-13/B-1635 drove the same at a

high speed and in a rash and negligent manner and

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.1

appeared through counsel and 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. It was further pleaded

that the accident was due to the rash and negligent

riding of the vehicle by the claimant himself. The

driver of the offending vehicle did not have valid

driving licence as on the date of the accident. 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-2, Dr.Krishan Prasad as PW-3 and

other two witnesses as PW-4 and PW-5 and got

exhibited documents namely Ex.P1 to Ex.P36. 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.5,54,351/- 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, this

appeal has been filed.

6. The learned counsel for the claimant has

raised the following contentions:

Firstly, at the time of the accident the claimant

was earning Rs.15,000/- per month by working as

helper under Class I Contractor. But the Tribunal has

assessed the notional income as Rs.8,000/- per

month, which is on the lower side.

Secondly, due to the accident the claimant

suffered grievous injuries, he has examined the doctor

as PW-3 who has deposed that the claimant has

suffered 49% limb disability and 16% whole body

disability. But the Tribunal is not justified in assessing

the whole body disability as 10%. The Tribunal has

not given any reason to disbelieve the evidence of the

doctor. In support of his contention he has relied on

the judgment of this Court in the case of MAHADEV

RAMACHANDRA BASME vs. DIVISIONAL

CONTROLLER, NWKRTC reported in 2016 (1) AKR

272.

Thirdly, due to the accident the claimant suffered

grievous injuries, he was inpatient for a period of 19

days, he has suffered lot of pain during treatment and

he has to suffer the disability and unhappiness

throughout his life. Considering the same, the

compensation awarded by the Tribunal for 'pain and

sufferings', 'loss of amenities' and other incidental

expenses is on the lower side.

Fourthly, due to the accident the claimant

suffered grievous injuries, he has undergone one

surgery. He has examined the doctor who has

deposed that the claimant requires Rs.60,000/- for

removal of implants. The Tribunal has awarded only

Rs.20,000/- under the head of 'future medical

expenses' and the same is on the lower side. Hence,

he prays for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised the following

contentions:

Firstly, even though the claimant claims that he

was earning Rs.15,000/- per month, he has not

produced any documents to establish his income.

Therefore, the Tribunal has rightly assessed the

notional income of the claimant as Rs.8,000/-.

Secondly, even though the claimant has

examined the doctor who has assessed the whole

body disability as 16%, the Tribunal considering the

injuries suffered by the claimant has rightly assessed

the whole body disability as 10%.

Thirdly, considering the injury suffered by the

claimant and considering the age and avocation, the

overall compensation awarded by the Tribunal is just

and reasonable. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties.

Perused the judgment and award and the original

records.

9. It is not in dispute that the claimant

suffered injuries in the accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

The claimant has not produced any evidence

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 2017, the notional income has to be taken at

Rs.11,000/- p.m.

As per wound certificate, the claimant has

sustained head injury and nasal bone fracture, Type I

compound displaced fracture D 1/3rd right femur, Type

II compound displaced fracture MP right III toe, post

traumatic, open displaced shaft fracture right femurl

open displaced fracture right foot 3rd toe middle

phalanx, lacerated wound over right foot dorsum 3rd

toe web space and head injury plus nasal bone

fracture, lacerated wound anterior medial tibia upper

1/3rd, lacerated wound right foot dorsum, multiple

contusions. The claimant was inpatient for 16 days.

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

claimant has suffered disability of 49% to particular

limb and 16% whole body disability.

10. In respect of the judgment relied upon by

the learned counsel for the claimant in the case of

MAHADEV RAMACHANDRA BASME (supra), the

Hon'ble Apex Court in the case of RAJKUMAR vs.

AJAYKUMAR & ANOTHER reported in (2011) 1 SCC

343 has held as hereinbelow:

"10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of

earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation."

It is very clear from the above judgment that the

Tribunal has to asses the functional disability.

Considering the evidence of the doctor and materials

available on record and also considering the age and

avocation of the deceased, the whole body disability

has to be assessed as 12%.

11. At the time of the accident, the claimant was

aged about 26 years and the applicable multiplier to

his age group is '17'. Thus, the claimant is entitled for

compensation of Rs.2,69,280/- (Rs.11,000*12*17*

12%) on account of 'loss of future income due to

disability'.

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 and unhappiness throughout

his life. Considering the same, I am inclined to

enhance the compensation awarded by the Tribunal

under the head 'loss of amenities' from Rs.20,000/- to

Rs.40,000/-, 'pain and sufferings' from Rs.40,000/- to

Rs.50,000/- and 'loss of income during laid-up period'

for a period of 3 months, i.e., Rs.33,000/-

(Rs.11,000*3).

Due to the accident the claimant has undergone

surgery. He has examined the doctor who has

deposed that the claimant requires to undergo

operation for removal of implants and it requires

Rs.60,000/-. Considering the evidence of the doctor

and considering the injuries suffered by the claimant,

I am of the opinion that the compensation awarded

under the head 'future medical expenses' has to be

enhanced from Rs.20,000/- to Rs.30,000/-.

The compensation awarded by the Tribunal

under other heads is just and reasonable.

12. 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 40,000 50,000 Medical expenses 2,67,151 2,67,151 loss of income during 24,000 33,000 laid-up period Attendant, conveyance 20,000 20,000 and other miscellaneous charges Loss of amenities 20,000 40,000 Loss of future income 1,63,200 2,69,280 Future medical expenses 20,000 30,000 Total 5,54,351 7,09,431

The claimant is entitled to a total compensation

of Rs.7,09,431/-.

Accordingly, appeal is allowed. Judgment and

award passed by the Tribunal is modified.

The Insurance Company is directed to deposit

the entire compensation amount along with interest @

6% p.a. from the date of 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 Tribunal is directed to release the enhanced

compensation amount in favour of the claimant after

due verification.

Sd/-

JUDGE

Cm/-