Karnataka High Court
H. R. Sandesh vs Divaya Shetty on 18 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.1072 OF 2016(MV)
BETWEEN:
H.R SANDESH,
S/O RAMACHANDRA @ JAYARAM
AGED ABOUT 21 YEARS
R/O HONNAMARANAHALLI VILLAGE
DUDDA HOBLI
HASSAN TALUK -573201.
... APPELLANT
(BY SRI.G.S.BYRA REDDY, ADV. FOR
SMT. H.C.KAVITHA, ADV.)
AND
1. DIVYASHETTY
D/O K.M.SHETTY, MAJOR
NO.169, 4TH CROSS
CAMBRIDGE LAYOUT
ALASURU, BENGALURU-560 008.
2. ROYAL SUNDARAM ALLIANCE
INSURANCE CO. LTD.,
SUNDARAM TOWERS,NO.46
VITES ROAD, RAYAPETTA
CHENNAI-600 014.
2
REPRESENTED BY:
THE BRANCH MANAGER
ROYAL SUNDARAM ALLIANCE INSURANCE
CO. LTD.,
INFORNT OF H.D.C.C. BANK
B.M.ROAD, HASSAN-573 201.
... RESPONDENTS
(BY SRI. H.S.LINGARAJU, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED:09.11.2017)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:02.11.2015 PASSED IN MVC NO.18/2013 ON
THE FILE OF THE II ADDITIONAL SENIOR CIVIL
JUDGE & MACT, HASSAN, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, 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 2.11.2015 passed
by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 15.10.2012, the claimant
was proceeding as pillion rider on motorcycle bearing
registration No.KA-13-X-6961 in front of Agriculture
College (Shanthigrama), the rider stopped the bike on
the left side of BM Road and chatting with his friend,
at that time, car bearing registration No.KA-03-MP-
6694 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 also 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
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.
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 issuance of policy is admitted. 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.Abdul Basheer as PW-2 and
got exhibited documents namely Ex.P1 to Ex.P12. 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.3,52,600/- 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
contended that even though the claimant claims that
he was working at Gangamata Home Food Product
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
35% to lower limb. But the Tribunal has erred in
taking the whole body disability at only 10%.
Thirdly, due to the accident, the claimant has
sustained grievous injuries. He was treated as
inpatient for a period of 15 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 contended that 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
35% to lower limb. The Tribunal considering the
injuries sustained by the claimant, has rightly
assessed the whole body disability at 10%.
Thirdly, considering the oral and documentary
evidence, the Tribunal has granted just and
reasonable compensation and it does not call for
interference. Hence, he sought dismissal of the
appeal.
8. Heard the learned counsel for the parties
and perused the records.
9. It is not in dispute that the accident has
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. 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 Type III C open fracture right femur with
bone loss, type III C open fracture right leg with soft
tissue loss, open right knee joint, abrasion forehead,
abrasion right shoulder and abrasion back. PW-2, the
doctor has stated that the claimant has suffered whole
body disability at 36%. Therefore, taking into
consideration the deposition of the doctor, PW-2 and
injuries mentioned in the wound certificate, the whole
body disability is taken at 12%. The claimant is aged
about 19 years at the time of the accident and
multiplier applicable to his age group is '18'. Thus, the
claimant is entitled for compensation of Rs.1,81,440/-
(Rs.7,000*12*18*12%) on account of 'loss of future
income'.
Since the income of the claimant is enhanced to
Rs.7,000/- per month, the claimant is entitled for
compensation of Rs.21,000/- (Rs.7,000*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 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.5,000/- to Rs.40,000/- and under the head of
'pain and sufferings' from Rs.30,000/- to Rs.40,000/-.
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 30,000 40,000
Medical and incidental 150,000 150,000
expenses
Loss of income during 18,000 21,000
laid up period
Loss of amenities 5,000 40,000
Loss of future income 129,600 181,440
Future medical expenses 20,000 20,000
Total 352,600 452,440
The claimant is entitled to a total compensation
of Rs.452,440/-.
The Insurance Company is directed to deposit
the compensation amount along with interest at 6%
p.a. within a period of four weeks from the date of
receipt of copy of this judgment excluding interest for
the compensation awarded under the head of 'future
medical expenses'.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE
DM
