Karnataka High Court

Sri Sathisha S vs Zameer Ahmed on 10 December, 2021

Bench: H T Prasad

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF DECEMBER 2021

                        BEFORE

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

              MFA No.8213 OF 2016(MV)
BETWEEN:

SRI SATHISHA S
S/O LATE SUBRRAMANYA
AGED ABOUT 32 YEARS
DRIVER BY WORK
R/AT KALENAHALLI VILLAGE
K.SHETTAHALLI HOBLI
SRIRANGAPATNA TALUK
MANDYA DISTRICT-571438.
                                         ...APPELLANT
(BY SRI.DIVAKARA P S., ADV.)

AND


1.     ZAMEER AHMED
       S/O LATE AHMED HUSSAIN
       R/O NO.111, 4TH CROSS
       K.E.B.COLONY, UDAYAGIRI
       MYSORE-570019.

2.     BRANCH MANAGER
       UNITED INDIA INSURANCE
       COMPANY LTD, NO.2912,
       SRI. VENKATESHWARA PLAZA
       1ST MAIN, SARASWATHIPURAM
       MYSORE.
                                      ...RESPONDENTS
                            2



(BY SRI. S.KRISHNA KIRSHORE, ADV. FOR R2:
    NOTICE TO R1 IS D/W V/O DTD: 29.11.2017)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:20.05.2016 PASSED
IN MVC NO.532/14 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE & MACT, SRIRANGAPATNA, 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 20.05.2016 passed

by the Motor Accident Claims Tribunal, Srirangapatna

in MVC No.532/2014.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 21.01.2014 at about 06.45

P.M. on T.M.Hosur-Kalenahalli road, near the land of

Marisiddegowda, at T.M.Hosur Village, when the

claimant was going in his scooter bearing registration

No.KA-10-J-1258 at that movement, the driver of the

offending lorry bearing registration No.KA-04-AA-0455

has drive the same towards Mysuru at high speed in a

rash and negligent manner and dashed to the

claimant's scooter. 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 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.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. Santhosh Kumar.S was

examined as PW-2 and got exhibited documents

namely Ex.P.1 to Ex.P.19. On behalf of the

respondents, no witness was examined but exhibited a

document namely Ex.R-1-Policy copy. 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.2,80,500/- along with

interest at the rate of 9% 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 working as a driver and earning Rs.20,000/- per

month, but the Tribunal has taken the notional income

as merely as Rs.6,500/- per month.

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

evidence that the claimant has suffered permanent

functional disability of 13% to right lower limb. But

the Tribunal has erred in taking the whole body

disability at only 5%.

Lastly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 9 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 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.20,000/- 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 permanent

functional disability of 13% to right lower limb. The

Tribunal considering the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 5%.

Thirdly, the injuries suffered by the claimant are

minor in nature. Considering the oral and

documentary evidence, 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 9% 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 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 2014, the notional income has to be taken at

Rs.8,500/- p.m.

As per wound certificate, the claimant has

sustained lacerated wound over his fore-head and

parietal region and also sustained fracture of middle

third shaft of right femur. PW-2, the doctor has stated

in his evidence that the claimant has suffered

permanent functional disability of 13% to right lower

limb. Therefore, taking into consideration the

deposition of the doctor, PW-2 and injuries mentioned

in the wound certificate, the Tribunal has rightly taken

the whole body disability at 5%. The claimant is

aged about 30 years at the time of the accident and

multiplier applicable to his age group is '17'. Thus,

the claimant is entitled for compensation of

Rs.86,700/- (Rs.8,500*12*17*5%) 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 3 months. Therefore, the claimant is entitled for

compensation of Rs.25,500/- (Rs.8,500*3 months)

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

The claimant was treated as inpatient for more

than 9 days in the hospital and thereafter, has

received further treatment. Hence, I am inclined to

enhance the compensation awarded under the head of

'conveyance, nourishment and attendance charges'

from Rs.10,000/- to Rs.15,000/-.

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.20,000/- to Rs.40,000/- and 'pain and suffering'

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

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 40,000 50,000 Medical expenses 84,000 84,000 Food, nourishment, 10,000 15,000 conveyance and attendant charges Loss of income during 19,500 25,500 laid up period Loss of amenities 20,000 40,000 Loss of future income 67,000 86,700

Future medical expenses 40,000 40,000 Total 2,80,500 3,41,200

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.3,41,200/-.

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. The enhanced

compensation shall carry interest at 6% per annum.

The Tribunal is directed to release the enhanced