Karnataka High Court

Sri. Mahadeva @ Mahadevappa vs Smt. Anitha C.N on 9 December, 2021

Bench: H T Prasad

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 9TH DAY OF DECEMBER 2021

                     BEFORE

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

           MFA No.5974 OF 2016 (MV)

BETWEEN:

SRI. MAHADEVA @ MAHADEVAPPA
S/O MALLAPPA
AGED ABOUT 44 YEARS
RESIDING AT NO.101
KEREHALLI VILLAGE
CHAMRAJNAGAR TALUK AND DISTRICT
CHAMRAJNAGAR-571 128
                                     ...APPELLANT
(BY SRI. H.V. BHANU PRAKASH, ADV.)

AND

1.    SMT. ANITHA C.N.
      S/O YOGEESH
      AGED MAJOR
      R/AT NO.164
      4TH MAIN ROAD
      MADHUVANA BADAVANA
      MYSORE-570 016
      (INSURED OF THE FORD
      FIGO CAR BEARING REG
      NO.KA-09-MA-7226)
                            2



2.   THE DIVISIONAL MANAGER
     IFFKO TOKIO GENERAL
     INSURANCE CO. LTD
     NEW KANTHARAJ URS ROAD
     NEAR AKSHAYA BHANDARA
     MYSORE, MYSORE-570 023
     (INSURER OF THE
     FORD FIGO CAR BEARING
     REG NO.KA-09-MA-7226)
                                       ...RESPONDENTS
(BY SRI. E. I. SANMATHI, ADV. FOR R2;
    VIDE ORDER DATED 22.11.2017
    NOTICE TO R1 DISPENSED WITH)


     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
30.3.2016 PASSED IN MVC NO.384/2014 ON THE FILE
OF THE JUDGE, ADDITIONAL COURT OF SMALL
CAUSES, MACT, MYSURU, 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 30.3.2016 passed

by the Motor Accident Claims Tribunal, Mysuru in MVC

384/2014.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 16.9.2013, the claimant was

walking on the left side of the road from Vijayanagar

water tank to KD Circle, Mysuru, in front of SBM, one

Ford Figo Car bearing registration No.KA-09-MA-7226

being driven by its driver at a high speed and in a

rash and negligent manner, dashed to 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. It was further pleaded

that the accident was not due to the rash and

negligent driving of the car. 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.Pundalikappa Sabanna

Kaladagi was examined as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P15. 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.316,160/- 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, even though the claimant claims that he

was doing mason work and earning Rs.10,000/- 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

55% to 60% to right lower limb and 35% to 40% to

left lower limb, which comes to 68% to 74% for

permanent physical functional disability. But the

Tribunal has erred in taking the whole body disability

at only 20%.

Thirdly, PW-2 the doctor has stated that the

claimant requires certain amount to undergo surgery

for removal of implants. But the Tribunal has not

granted any compensation under the head of 'future

medical expenses'.

Fourthly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 30 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. 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.10,000/- 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

55% to 60% to right lower limb and 35% to 40% to

left lower limb, which comes to 68% to 74% for

permanent physical functional disability. The Tribunal

considering the injuries sustained by the claimant, has

rightly assessed the whole body disability at 20%.

Thirdly, the claimant has not produced any

documents either before the Tribunal or before this

court with regard to future treatment taken.

Therefore, the claimant is not entitled for any

compensation under the head of 'future medical

expenses'.

Fourthly, 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.

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.10,000/- 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. As per the guidelines issued by the

Karnataka State Legal Services Authority, for the

accident 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 Type II open fracture of right shaft femur

and closed fracture of the left femur. PW-2, the doctor

has stated in his evidence that the claimant has

suffered disability of 55% to 60% to right lower limb

and 35% to 40% to left lower limb, which comes to

68% to 74% for permanent physical functional

disability. 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 23%.

The Tribunal has rightly applied multiplier of '11'

based on the age group of the claimant, which is 51-

55 years. Thus, the claimant is entitled for

compensation of Rs.242,880/- (Rs.8000*12*11*23%)

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 4 months. Therefore, the claimant is entitled for

compensation of Rs.32,000/- (Rs.8,000*4 months)

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

The claimant was treated as inpatient for more

than 30 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.10,000/- to Rs.40,000/-.

The claimant has not produced any documents

either before the Tribunal or before this court with

regard to future treatment taken. Therefore, the

Tribunal is justified in not granting any compensation

under the head of 'future medical expenses'.

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 50,000 50,000 Medical expenses 25,000 25,000 Food, nourishment, 15,000 15,000 conveyance and attendant charges Loss of income during 24,000 32,000 laid up period Loss of expectation of 10,000 10,000 life Loss of amenities 10,000 40,000 Loss of future income 182,160 242,880 Total 316,160 414,880

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.414,880/-.

The Insurance Company is directed to deposit

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.

In view of the order dated 22.11.2017 passed by

this Court, the claimant is not entitled for interest for

the delayed period of 16 days in filing the appeal.