Sri Rangaswamy vs Smt. Rathnamma
2021 Latest Caselaw 6843 Kant

                          1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 20TH DAY OF DECEMBER 2021

                       BEFORE

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

            MFA No.4968 OF 2016(MV)

BETWEEN:

SRI RANGASWAMY
S/O LATE KARIGOWDA
AGED ABOUT 52 YEARS
R/O AREKALLU HOSAHALLI VILLAGE
HANDINAKERE VILLAGE
KASABAHOBLI
HASSAN TALUK
HASSAN DISTRICT-573201.
                                     ...APPELLANT

(BY SRI.BALARAJ A C., ADV.)

AND

1.    SMT. RATHNAMMA
      W/O LATE VASUM
      AGED ABOUT 34 YEARS
      R/O MANACHANAHALLI VILALGE
      KASABAHOBLI
      HASSAN TALUK
      HASSAN DISTRICT-573201.

2.    THE MANAGER
      NATIONAL INSURANCE
      COMPANY LIMITED
      MANJUNATHA COMPLEX
                            2



     BUS STAND ROAD
     HASSAN-573201.
                                        ...RESPONDENTS
(BY SRI.RAVISH BENNI,ADV. FOR R2:
R1 SERVED AND UNREPRESENTED)


     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:1.10.2015 PASSED
IN MVC NO.196/2014 ON THE FILE OF THE II ADDITIONAL
DISTRICT   &   SESSIONS    JUDGE,   ADDITIONAL    MACT,
HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND     SEEKING   ENHANCEMENT       OF
COMPENSATION.


     THIS MFA COMING ON FOR HEARING, 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 1.10.2015 passed

by the II Addl. District & Sessions Judge & Addl.

MACT, Hassan in MVC 196/2014.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 11.6.2012, the claimant was

standing talking with his friend Mohankumar along

with his TVS XL motorcycle bearing KA-13-S-8976 on

Hassan-Belur Road, near Yarehalli Gate, the rider of

the another motorcycle bearing registration No.KA-13-

X-4961 being ridden by its rider 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. It was further pleaded

that the claimant and first respondent are colluded to

fix the vehicle in the alleged accident and lodged a

false complaint after delay of 13 days in respect of

alleged accident to grab compensation from the

Insurance Company. The rider of the offending vehicle

did not have valid driving licence as on the date of the

accident, he was having LLR only and violated the

policy conditions. 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.U.H.Safan was examined as

PW-2 and got exhibited documents namely Ex.P1 to

Ex.P29 and Ex.C-1 and C-2. On behalf of the

respondents, one witness was examined as RW-1 and

got exhibited documents namely Ex.R1 and Ex.R2.

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.2,23,011/- along with

interest at the rate of 6% p.a. and directed the

respondent No.1(a) to deposit the compensation

amount along with interest. Being aggrieved, this

appeal has been filed by the claimant.

6. The learned counsel for the claimant has

raised the following contentions:

Re: Liability:

The Tribunal has given a clear finding that the

insured has violated the policy conditions and hence

the Insurance Company is not liable to pay

compensation and accordingly directed the owner of

the offending vehicle to pay compensation. But since

third party risk is involved and the offending vehicle

was covered with valid insurance policy as on the date

of accident, the Insurance Company is liable to pay

compensation to the claimant with liberty to recover

the same from the owner of the offending vehicle.

Hence, the Insurance Company may be directed to

pay the compensation to the claimant with liberty to

recover the same from the owner of the offending

vehicle.

Re: Quantum of compensation:

Firstly, even though the claimant claims that he

was working in ABC company and earning Rs.10,000/-

per month, but the Tribunal has taken the notional

income as merely as Rs.4,000/- per month.

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

evidence that the claimant has suffered disability of

15% to whole body. The claimant was aged about 50

years at the time of the accident. The Tribunal while

calculating the compensation under the head of 'loss

of future income', has taken the age of the claimant

as 55 years, which is contrary to materials available

on record.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 35 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. But the Tribunal has failed to grant

any compensation under the head of 'loss of

amenities'. Further, 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 allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Re: Liability

Since the insured has violated the terms and

conditions of the policy, the Tribunal has rightly

exonerated the Insurance Company from liability and

fastened the liability on the owner of the offending

vehicle.

Re: Quantum of compensation

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, as per the medical records, the

claimant is aged about 55 years. The Tribunal

considering the same and further considering the

disability stated by the doctor has rightly awarded

compensation under the head of 'loss of future

income'.

Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the overall compensation awarded by the

Tribunal is just and reasonable compensation. Hence,

he sought for dismissal of the appeal.

8. The owner of the offending vehicle is

served and unrepresented.

9. Heard the learned counsel for the parties

and perused the records.

10. 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.

RE: LIABILITY

11. The Tribunal after considering the materials

available on record has given a clear finding that the

insured has violated the policy conditions and

therefore, the Insurance Company is not liable to

indemnify the insured and has rightly exonerated the

Insurance Company from liability. But since the

offending vehicle was covered with valid insurance

policy and since third party risk is involved, the

Insurance Company is liable to pay the compensation

amount to the claimant with liberty to recover the

same from the owner of the offending vehicle. Hence,

the finding of the Tribunal in respect of liability is

concerned, the same is modified.

RE: QUANTUM OF COMPENSATION:

12. The claimant claims that he was earning

Rs.10,000/- per month. He has not produced any

documents to prove 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 2012, the notional income has to be

taken at Rs.7,000/- p.m.

As per wound certificate, the claimant has

sustained deep lacerated wound over medial aspect of

right leg, deep lacerated wound over right leg above

ankle and swelling, deep lacerated wound over the

lateral aspect of right leg, both bones fracture of right

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

the claimant has suffered disability of 15% 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 taken

the whole body disability at 15%. The claimant was

aged about 50 years at the time of the accident. The

Tribunal relying on medical records has given a finding

that the claimant was aged 55 years. But as per

medical records, it shows that the claimant was aged

about 45 years. Therefore, considering the evidence of

the claimant, the aged of the claimant can be

considered as 50 years and correct multiplier

applicable is 13. Thus, the claimant is entitled for

compensation of Rs.163,800/- (Rs.7000*12*13*15%)

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 2 months. Therefore, the claimant is entitled for

compensation of Rs.14,000/- (Rs.7,000*2 months)

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

The claimant was treated as inpatient for more

than 35 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 award compensation of

Rs.30,000/- under the head of 'loss of amenities'.

Considering the nature of injuries, the

compensation awarded by the Tribunal under other

heads is just and reasonable.

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 30,000 30,000 Medical expenses 88,144 88,144 Food, nourishment, 21,000 21,000 conveyance and attendant charges Loss of income during 4,667 14,000 laid up period Loss of amenities 0 30,000 Loss of future income 79,200 163,800 Total 223,011 346,944

13. 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.346,944/-.

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 with

liberty to recover the same from the respondent

No.1(a) i.e., Smt.Rathnamma w/o Late Vasu.

Sd/-

JUDGE

DM