Karnataka High Court
H V Mahabaleshwara vs H V Subba Rao 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.5228 OF 2017(MV)
BETWEEN:
H V MAHABALESHWARA
AGED ABOUT 58 YEARS
S/O LATE H.K.VISWESHWARAIAH
R/O HUGOPPALU VILLAGE
SARARAVALLI
SAGARA TALUK - 577 401
SHIVAMOGGA DISTRICT.
...APPELLANT
(BY SRI.S V PRAKASH, ADV.)
AND
1. H V SUBBA RAO
AGED ABOUT 62 YEARS
S/O LATE H.K.VISWESHWARAIAH
R/O NO.2, 2ND A CROSS
NAGARBHAVI VILLAGE
BENGALURU - 560 072.
2. SRIKANTH R BAPAT
AGED ABOUT 62 YEARS
S/O RAMACHANDRA BAPAT
R/O NO.2, PUNYAKOTI
2ND A CROSS, ISEC MAIN ROAD
2
NAGARBHAVI MAIN ROAD
BENGALURU - 560 072.
3. IFFCO-TOKIO GEN INS CO LTD.,
KSCMF BUILDING
3RD FLOOR, 3RD BLOCK
#8, CUNNINGHAM ROAD
BENGLAURU - 560 052.
...RESPONDENTS
(BY SRI.MURALIDHAR, ADV. FOR R3:
R1 & R2 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:31.05.2017 PASSED
IN MVC NO.3567/2013 ON THE FILE OF THE XXII
ADDITIONAL SMALL CAUSES JUDGE AND XX ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE AND MEMBER MACT
BENGALURU (SCCH-24), 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 31.05.2017 passed
by the Motor Accident Claims Tribunal, Bengaluru in
MVC No.3567/2013.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 01.09.2012 at about 08.00
A.M., the claimant was proceeding as a pillion rider in
Honda Activa bearing registration No.KA-41-U-4868
which was riding by Srikanth, who is owner of the said
Honda Activa. When they reached near Navarang
Timber on Magadi Main Road, Vijayanagar, Bengaluru,
the rider of the said vehicle was riding the same
rashly and negligently with high speed and with a view
to avoid pedestrians, who suddenly crossed the road,
has applied break and on account of the same, he has
lost the control. As a result of the same, the claimant
had fallen on the road and the said vehicle was fell on
the left leg of the claimant and 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
to 3 being the rider, owner and the insurer of the
offending vehicle have appeared through counsel and
filed separate written statement in which the
averments made in the petition were denied. It was
pleaded by the rider and the owner of the offending
vehicle that the petition itself is false and frivolous in
the eye of law. They denied that the accident was not
due to rash and negligent riding of the vehicle. The
rider of the offending vehicle was having a valid
driving licence as on the date of the accident. Hence,
they sought for dismissal of the petition.
It was pleaded by the Insurance Company that
the petition itself is false and frivolous in the eye of
law. The accident was not due to the rash and
negligent riding of the vehicle by its rider. 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.
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 got exhibited documents
namely Ex.P.1 to Ex.P.18. 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 riding of the offending vehicle by
its rider, as a result of which, the claimant sustained
injuries. The Tribunal further held that the claimant is
entitled to a compensation of Rs.2,47,750/- 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, even though the claimant claims that he
was doing agricultural work and other business and
earning Rs.45,000/- per month, but the Tribunal has
taken the notional income as merely as Rs.10,000/-
per month.
Secondly, PW-2, the doctor has stated in his
evidence that the claimant has suffered total physical
disability of 36% to left lower limb and 12% to whole
body. But the Tribunal has erred in taking the whole
body disability at 7% is on lower side. He further
deposed that the claimant is required Rs.40,000/- for
removal of implants. But the compensation of
Rs.20,000/- awarded by the Tribunal towards 'future
medical expenses' is on lower side.
Thirdly, due to the accident, the claimant has
sustained grievous injuries. He was treated as
inpatient for a period of 5 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.45,000/- 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 total physical
disability of 36% to left lower limb and 12% to whole
body. The Tribunal considering the injuries sustained
by the claimant, has rightly assessed the whole body
disability at 7%. Even though the doctor has stated in
his evidence that the claimant required Rs.40,000/-
for removal of implants, the claimant has not
produced any document even before this Court to
show that he has undergone surgery and he required
compensation for removal of implants. Therefore, the
compensation awarded by the Tribunal towards 'future
medical expenses' is just and reasonable.
Thirdly, 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 xzc
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 not in dispute that the claimant has
sustained injuries in the road traffic accident occurred
due to rash and negligent riding of the offending
vehicle by its rider.
The claimant has not produced any documents
with regard to his income. Therefore, the Tribunal
considering the age, avocation, injuries suffered by
the claimant and materials available on record, has
rightly assessed monthly income of the claimant as
Rs.10,000/-.
Due to the accident, the claimant has sustained
multiple fractures on tibia and fibula of left leg. PW-2,
the doctor has stated in his evidence that claimant has
suffered total physical disability of 36% to left lower
limb and 12% to whole body. Therefore, taking into
consideration the deposition of the doctor, PW-2 and
injuries suffered by the claimant, I am of the opinion
that the whole body disability can be assessed at
12%. The claimant is aged about 54 years at
the time of the accident and multiplier applicable
to his age group is '11'. Thus, the claimant is
entitled for compensation of Rs.1,58,400/-
(Rs.10,000*12*11*12%) 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.30,000/- (Rs.10,000*3 months)
under the head 'loss of income during laid up period'.
Due to the accident, the claimant has suffered
grievous injuries and also undergone surgery. He was
treated as inpatient for more than 5 days in the
hospital. 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 'pain and suffering' from
Rs.20,000/- to Rs.40,000/- and 'loss of amenities'
from Rs.10,000/- to Rs.30,000/-.
The claimant has examined the doctor PW-2,
who in his testimony stated that the claimant required
Rs.40,000/- towards 'future medical expenses'. But he
has not produced any document even before this
Court to show that he has undergone surgery and he
required compensation for removal of implants.
Therefore, the Tribunal is justified in granting the
compensation of Rs.20,000/- towards 'future medical
expenses'.
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 20,000 40,000
Medical expenses 70,341 70,341
Food, nourishment, 15,000 15,000
conveyance and
attendant charges
Loss of income during 20,000 30,000
laid up period
Loss of amenities 10,000 30,000
Loss of future income 92,400 1,58,400
Future medical expenses 20,000 20,000
Total 2,47,741 3,63,741
Rounded off 2,47,750 3,63,750
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.3,63,750/-.
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
compensation in favour of the claimant after due
verification.
Sd/-
JUDGE
HA/-
