Sri.Chikkaraju vs National Insurance Co Ltd
2021 Latest Caselaw 7021 Kant

                            1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 22ND DAY OF DECEMBER 2021

                        BEFORE

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

             MFA No.5140 OF 2021(MV)

BETWEEN:

Sri. Chikkaraju,
S/o Gowdachikkanna,
Aged about 38 years,
R/o Gollarahatti,
Honnagondanahalli,
Sira Taluk-577 501,
Tumakuru District.
                                       ...Appellant
(By Sri V.B.Siddaramaiah, Adv.)

AND:

1.     National Insurance Co. Ltd.,
       Above Corporation Bank,
       Behind Krishna Talkies,
       M.G.Road,
       Tumakuru-572 101.

2.     Sri Raghu E.N.,
       S/o Narayana Dutta E.N.,
       Aged about 48 years,
       R/o Y.N.Hosakote,
       Pavagada Taluka,
       Tumakuru District-572 202.
                            2



                                          ...Respondents
(By Sri Ashok N. Patil, Adv. for R-1;
    Notice to R-2 is D/W V/O Dtd. 24.11.2021)

      This MFA is filed u/s 173(1) of MV Act against
the judgment and award dated: 09.04.2021, passed in
MVC No.543/2018, on the file of the Senior Civil Judge
and JMFC, Additional MACT, Sira, 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 09.04.2021 passed

by the Motor Accident Claims Tribunal, Sira in MVC

No.543/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 12.01.2018 at about 2.15

p.m. the claimant was proceeding on motorcycle

bearing registration No.KA-64/H-3953 as a pillion

rider. When they reached near Rangapura gate, at

that time, a private bus bearing registration No.KA-

06/A-9259 being driven by its driver 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 Nos.1

and 2 appeared through counsel and respondent No.2

filed written statement in which the averments made

in the petition were denied. The age, avocation and

income of the claimant and the medical expenses are

denied. It was pleaded that the accident was due to

the rash and negligent riding of the vehicle by the

claimant himself. It was further pleaded that the

driver of the offending vehicle did not have valid

driving licence as on the date of the accident. It was

further pleaded that the liability is subject to terms

and conditions of the policy. 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.Chandan as PW-2 and got

exhibited documents namely Ex.P1 to Ex.P25. On

behalf of the respondents, neither any witness was

examined nor got exhibited documents. 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.3,94,000/- 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 agricultural work and earning Rs.15,000/-

per month, but the Tribunal has taken the notional

income as only Rs.12,500/- per month.

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

evidence that the claimant has suffered disability of

45% to particular limb and 15% to whole body. But

the Tribunal has erred in taking the whole body

disability at only 12%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 16 days. Even after discharge

from the hospital, he was not in a position to

discharge his regular work. He suffered lot of pain

during treatment and he has to suffer the disability

and unhappiness throughout his life. Considering the

same, the compensation granted by the Tribunal

under the heads of 'loss of amenities', 'pain and

sufferings' and other conventional heads is 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 the following

contentions:

Firstly, even though the claimant claims that he

was earning Rs.15,000/- 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

45% to left lower limb and 15% to whole body. The

Tribunal considering the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 12%.

Thirdly, considering the injuries suffered by the

claimant and considering the age and avocation, the

compensation awarded by the Tribunal is just and

reasonable. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties.

Perused the judgment and award.

9. It is not in dispute that the claimant

suffered injuries in the accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

The claimant has not produced any evidence

with regard to his income. The Tribunal after

considering the age and avocation of the claimant has

rightly assessed the notional income as Rs.12,500/-

per month.

Due to the accident the claimant has suffered

fracture of femur, Type-III open knee injury with

contamination. The claimant was inpatient for 12

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

that the claimant has suffered disability of 45% to

particular limb and 15% to whole body. Therefore,

taking into consideration the deposition of the doctor,

PW-2 and injuries suffered by the claimant, the whole

body disability is taken at 15%. The claimant was

aged about 37 years at the time of the accident and

multiplier applicable to his age group is '15'. Thus, the

claimant is entitled for compensation of Rs.3,37,500/-

(Rs.12,500*12*15*15%) on account of 'loss of future

income'.

Due to the accident, the claimant has suffered

grievous injuries, he has suffered lot of pain during

treatment and he has to suffer with the disability and

unhappiness throughout his life. Considering the

same, I am inclined to enhance the compensation

awarded by the Tribunal under the head of 'pain and

sufferings' from Rs.25,000/- to Rs.40,000/- and 'loss

of amenities' from Rs.10,000/- to Rs.25,000/-.

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 25,000 40,000 Medical expenses 14,844 14,844 Food, nourishment, 26,000 26,000 conveyance and attendant charges Loss of income during 37,500 37,500 laid up period Loss of amenities 10,000 25,000 Loss of future income 2,70,000 337,500 Future medical expenses 10,000 10,000 Total 3,93,344 4,90,844

The claimant is entitled to a total compensation

of Rs.4,90,844/-.

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.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

Accordingly, the appeal is allowed in part.

The Tribunal is directed to release the enhanced

compensation amount in favour of the claimant after

due verification.

Sd/-

JUDGE

Cm/-