Akshaya A Savalagi vs The Manager
2021 Latest Caselaw 5734 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF DECEMBER 2021

                        BEFORE

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

              MFA No.7369 OF 2016(MV)

BETWEEN:

AKSHAYA A SAVALAGI
S/O ASHOK SAVALAGI,
AGED ABOUT 21 YEARS
NO:217,DOOR NO:301,3RD FLOOR
ADITHYA RESIDENCY,7TH MAIN
DEFENSE COLONY
SAHAKARANAGAR
BANGALORE-560 092.
                                         ...APPELLANT
(BY SRI. K SHANTHARAJ, ADV.)

AND

1.    THE MANAGER
      NATIONAL INS.CO.LTD.,
      REGIONAL OFFICE,3RD FLOOR
      SUBBARAM COMPLEX,M.G ROAD
      BANGALORE-560 001.

2.    M/S MERU CABS COMPANY PVT LTD
      NO:60/4,ZONASHA ALPHA BUILDING
      2ND FLOOR,ABOVE STAPLES BRIDGE
      MARATHAHALLI OUTER RING ROAD
      VARTHUR HOBLI
      BANGALORE-37.
                                     ....RESPONDENTS
                            2




(BY SRI.RAVISH BENNI, ADV. FOR R1:
    SRI. T.T. SOMASUNDAR, ADV. FOR R2)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:15.11.2014 PASSED
IN MVC NO.6266/2012 ON THE FILE OF THE 8TH
ADDITIONAL SMALL CAUSES JUDGE, 33RD ACMM,
MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION, 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 15.11.2014 passed

by the Motor Accident Claims Tribunal, Bengaluru in

MVC No.6266/2012.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 06.07.2012 at about 04.45

P.M., the claimant being the rider of Honda Dio

bearing registration No.KA-50-J-5232 was moving in

24th Cross of Sahakarnagar, Near Police Outpost. At

that time, one Car bearing registration No.KA-53-A-

7355 driven in very high speed, in rash and negligent

manner, had struck the claimant while coming from

13th Main Road. 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 have appeared through counsel and only

respondent No.1 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 if any would

arise, is subject to production of RC, FC and permit 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-1 and Dr.S.A.Somshekar was

examined as PW-2 and got exhibited documents

namely Ex.P.1 to Ex.P.11. On behalf of the

respondents, one witness was examined as RW-1 and

got exhibited documents namely Ex.R.1 and Ex.R.2.

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.63,000/- 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, the accident was occurred due to rash

and negligent driving of the driver of the Car bearing

registration No.KA-53-A-7355. The Tribunal

considering the evidence of the parties and material

available on record, has answered Issue No.1 in

affirmative holding that the driver of the Car alone

was negligent in causing the accident. While

determining the compensation, the Tribunal has

committed an error and has given a finding that the

claimant has also contributed 30% negligence to the

accident. This finding of the Tribunal is without any

pleading or without any evidence of the parties and

the same is contrary to the finding given by the

Tribunal in Issue No.1.

Secondly, at the time of the accident, the

claimant was aged about 19 years and he was

studying in II PUC and he was also earning Rs.6,000/-

per month by working in Metro Mall. Due to the

accident, he was unable to continue his studies and

also suffered loss in his future earnings.

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

evidence that the claimant has suffered disability of

34% to left lower limb and 17% to whole body. But

the Tribunal has not awarded any compensation

towards 'loss of income due to disability'.

Lastly, 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. Considering the same, the

compensation granted by the Tribunal under the

heads of 'pain and sufferings' 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, the accident was occurred due to

negligent of the clamant himself. It is very clear from

the Sketch produced at Ex.P.4 and IMV Inspection

report, the claimant himself was rode the Honda Dio

in a rash and negligent manner and dashed to the

Car. Therefore, the Tribunal has rightly come to the

conclusion that the claimant has also contributed 30%

to the accident.

Secondly, at the time of the accident, the

claimant was aged about 19 years. Even after the

accident, he has continued in his studies. He has not

produced any documents to show that he was working

in the Metro Mall and was earning Rs.6,000/- per

month. Therefore, the Tribunal has rightly not granted

any compensation for 'loss of income due to

disability'.

Thirdly, considering the oral and documentary

evidence of the claimant and evidence of PW-2,

doctor, the Tribunal has granted just and reasonable

compensation and it does not call for interference.

Lastly, 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. 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 the case of the claimant that on

06.07.2012 at about 04.45 P.M., the claimant was

moving in Honda Dio bearing registration No.KA-50-J-

5232, when he reached near 24th Cross of

Sahakarnagar, Near Police Outpost. At that time, the

driver of the Car bearing registration No.KA-53-A-

7355 drove the same in high speed and in a rash and

negligent manner, had struck the claimant while

coming from 13th Main Road. As a result of the

aforesaid accident, the claimant fell down and

sustained grievous injuries and was hospitalized. To

prove his case, he himself was examined as PW-1 and

Dr.S.A.Somshekar was examined as PW-2 and

produced 11 documents. On considering the evidence

of the parties, the Tribunal has framed Issue No.1 as

follows:

"1. Whether petitioner proves that, on 06.07.2012 at about 4.45 p.m, at 24th Cross, Sahakarnagar, Bangalore, he met with an accident and sustained grievous injuries, was due to rash and negligent driving of the driver of the car bearing Registration No.KA-53-A-7355 as alleged in the petition?"

The Tribunal after considering the evidence of

the parties and material available on record, has

answered Issue No.1 in the affirmative holding that

the driver of the Car alone was negligent in causing

the accident. After answering of Issue No.1, when

deciding the Issue No.2, the Tribunal has committed

an error and has given a finding that the claimant has

also contributed 30% negligence to the accident and

the same is without any pleading or without any

evidence of the parties and the same is contrary to

the finding given by the Tribunal in Issue No.1. This

finding of the Tribunal regarding contributory

negligent is unsustainable. Therefore, the driver of the

Car bearing registration No.KA-53-A-7355 alone was

negligent in causing the accident.

RE:QUANTUM

The claimant claims that as on the date of the

accident, he was studying in II PUC and he was

working in the Metro Mall and was earning Rs.6,000/-

per month. But he has not produced any documents

with regard to his income.

The Hon'ble Apex Court in the case of KAJAL vs.

JAGDISH CHAND AND ORS (Civil Appeal

No.735/2020, disposed of on 05.02.2020) has held

that even for a young child of 12 years, the notional

income has to be assessed. Therefore, considering the

evidence of the claimant as he was working in the

Metro Mall and was earning Rs.6,000/- per month,

age and avocation and injuries suffered by him, the

notional income has to be assessed as Rs.6,000/- per

month. As per wound certificate, the claimant has

sustained one injury which is grievous in nature.

PW-2, the doctor has stated in his evidence that the

claimant has suffered disability of 34% to left lower

limb and 17% 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 as 10%. The claimant is aged about

19 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.1,29,600/-

(Rs.6,000*12*18*10%) 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 1 month. Therefore, the claimant is entitled for

compensation of Rs.6,000/- (Rs.6,000*1 month)

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

The compensation awarded by the Tribunal

under the heads of 'pain and suffering' of Rs.50,000/-,

'medical expenses, conveyance, nourishment and

other incidental expenses' of Rs.20,000/- and 'loss of

amenities' of Rs.20,000/- is just and reasonable.

10. 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.2,25,600/-.

The Insurance Company is directed to deposit

the entire 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 shall carry interest at 6% per

annum.

This Court vide order dated 09.07.2019 has

denied the interest for a period of 235 days.

Therefore, the claimant is not entitled for the interest

for the delayed period of 235 days.

Sd/-

JUDGE

HA/-