Karnataka High Court

Sri Ravikumar vs Sri Shivaprasad K C on 6 December, 2021

Bench: H T Prasad

                       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.2244 OF 2019(MV)

BETWEEN:

SRI RAVIKUMAR
S/O LATE MAHADEVAIAH
AGED ABOUT 27 YEARS
R/AT KOODANAHALLI VILALGE
SOMESHWARA POST
MYSURU TALUK & DISTRICT
MYSURU DISTRICT-571 311.
                                      ...APPELLANT

(BY SRI. BHANU PRAKASH H V., ADV. )

AND

1 . SRI SHIVAPRASAD K C
    S/O CHIKKAVERAIAH
    AGED MAJOR
    R/AT NO.298
    SUEZ FORUM ROAD
    KANAKAGIRI
    MYSORE TALUK & DISTRICT
    MYSURU-570 008.

2 . THE BRANCH MANAGER
                            2



   UNIVERSAL SOMPO GENERAL
   INSURANCE COMPANY LIMITED
   NO.363,1ST FLOOR
   FORT MOHALLA
   GURUKAR DEVANNA STREET
   MYSURU -570 004.
                                       ...RESPONDENTS

(BY SRI. S.V HEGDE MULKHAND, ADV. FOR R2:
NOTICE TO R1 IS D/W V/O DATED: 06.12.2021)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST    THE    JUDGMENT     AND    AWARD
DATED:14.08.2018 PASSED IN MVC NO.1273/2015
ON THE FILE OF THE PRINCIPAL JUDGE, COURT OF
SMALL CAUSES AND SENIOR CIVIL JUDGE, AS A
PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS
TRIBUNAL, MYSURU, 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 14.8.2018 passed

by the Motor Accident Claims Tribunal, Mysuru in MVC

1273/2015.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 19.7.2015, the claimant was

boarding the goods auto bearing registration No.KA-

09-B-9364 near Navrang Bar, in front of Bus stand at

Manandavadi Srirampura Toll gate, at that time, the

driver of passenger autorickshaw bearing registration

No.KA-09-B-4645 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. It was pleaded that the petition itself is false

and frivolous in the eye of law. 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.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.Neelanagouda Patil was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P16. On behalf of the

respondents, neither any witness was examined nor

any document was produced. 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.436,700/- along with interest at

the rate of 7% 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 mason work and earning Rs.15,000/- per

month, but the Tribunal has taken the notional income

as merely as Rs.9,000/- per month.

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

evidence that the claimant has suffered disability of

30% to whole body. 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 31 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.

Fourthly, PW-2 the doctor has stated that the

claimant requires an amount of Rs.20,000/- to

undergo surgery for removal of implants. But the

Tribunal has granted meager compensation of

Rs.10,000/- under the head of 'future medical

expenses'. 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 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

income of the claimant notionally.

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

evidence that the claimant has suffered disability of

30% to whole body. The injuries sustained by the

claimant are minor in nature. The Tribunal has

assessed the whole body disability at 15% which is on

the higher side.

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

7% 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 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 offending

vehicle by its driver.

The claimant claims that he was earning

Rs.15,000/- per month. But he has not produced any

documents to prove his income. In the absence of

proof of income, the notional income has to be

assessed. The Tribunal considering the age and

avocation of the claimant has rightly assessed the

notional income at Rs.9,000/-. Even as per the

guidelines issued by the Karnataka State Legal

Services Authority, for the accident taken place in the

year 2015, the notional income has to be taken at

Rs.9,000/- p.m. As per wound certificate, the

claimant has sustained fracture of femur, tibia and

fibula. PW-2, the doctor has stated in his evidence

that the claimant has suffered disability of 30% to

whole body. Therefore, taking into consideration the

deposition of the doctor, PW-2 and injuries

mentioned in the wound certificate, the Tribunal has

rightly assessed the whole body disability at 15%.

Further, the Tribunal has rightly applied multiplier of

'17' to the age of the claimant, who was 27 years at

the time of the accident. Accordingly, the

compensation of Rs.275,400/- awarded by the

Tribunal under the head of 'loss of future income' is

just and reasonable.

The nature of injuries suggests that the claimant

must have been under rest and treatment for a period

of 5 months. Therefore, the claimant is entitled for

compensation of Rs.45,000/- (Rs.9000* 5 months)

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

The claimant was treated as inpatient for more

than 31 days in the hospital and thereafter, has

received further treatment. 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.40,000/- and

under the head of 'pain and sufferings' from

Rs.40,000/- to Rs.50,000/-.

The claimant has examined the doctor PW-2,

who in his testimony stated that the claimant requires

about Rs.20,000/- towards 'future medical expenses'

for removal of implants. Hence, I am inclined to

enhance the compensation awarded by the Tribunal

under the head of 'future medical expenses' from

Rs.10,000/- to Rs.20,000/-.

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 40,000 50,000 Medical and incidental 50,000 50,000 expenses Loss of income during 36,300 45,000 laid up period Loss of amenities 25,000 40,000 Loss of future income 275,400 275,400 Future medical expenses 10,000 20,000 Total 436,700 480,400

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.480,400/-.

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 compensation amount shall carry