Sri. Ravi vs Sri. Gundurao H V
2021 Latest Caselaw 1102 Kant

                         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.8547 OF 2016(MV)

BETWEEN:

SRI. RAVI
S/O RAJAIAH
AGED ABOUT 27 YEARS
R/O KOTEVALU VILLAGE
RAMANATHAPURA HOBLI
KASABHA HOBLI
ARKALGUD TALUK
HASSAN DISTRICT-573 102.
                                      ... APPELLANT

(BY SRI.D.L.MURTHY, ADV. )

AND

1.    SRI. GUNDURAO H.V.
      S/O LATE H.N. VENKATESH
      MAJOR
      D.NO.161A, OPP: TEMPLE STREET
      RAMANATHAPURA HOBLI
      ARKALGUD TALUK
      HASSAN DISTRICT-573102.

2.    THE MANAGER
      NATIONAL INSURANCE COM. LTD.,
                            2



     HASSAN DISTRICT-573 201.

                                      ... RESPONDENTS

(BY SMT. H.R.RENUKA, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED:10.11.2017)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 11.03.2016 PASSED IN MVC NO.1310/2013
ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER,
MACT, ARKLAGUD, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCMENT 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 11.3.2016 passed

by the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 25.5.2013, the claimant was

proceeding on his motorcycle bearing registration

No.KA-13-Y-2946 from Kothwal to Sridhanhally along

with his mother as pillion rider, at that time, car

bearing registration No.KA-13/N-1470 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 on the ground that he was working at

Mannapuram finance Ltd. and was earning

Rs.10,000/- p.m. 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.

It was further pleaded that the accident was not due

to the rash and negligent driving of the offending

vehicle by the driver. The driver of the offending

vehicle did not have valid driving licence as on the

date of the accident. The liability is not specifically

denied. 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 got exhibited documents

namely Ex.P1 to Ex.P64. Dr.Kotreshi was examined

through court commissioner as CW-1 and got marked

documents as Ex.C-1 to C3. 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.3,01,063/- 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

contended that even though the claimant claims that

he was working as Junior Assistant in Mannapuram

Finance Ltd and earning Rs.11,628/- per month and

produced Ex.P-58 salary certificate and Ex.P-59

service record, but the Tribunal has taken the notional

income as merely as Rs.6,000/- per month.

Secondly, CW-1, the doctor has stated in his

evidence that the claimant has suffered disability of

26% to limb. But the Tribunal has erred in taking the

whole body disability at only 7%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 6 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.11,628/- per month and produced salary

certificate, but he has not examined the author of the

said certificate. Therefore, the Tribunal has rightly

assessed the income of the claimant notionally.

Secondly, CW-1, the doctor has stated in his

evidence that the claimant has suffered disability of

26% to limb. The Tribunal considering the injuries

sustained by the claimant, has rightly assessed the

whole body disability at 7%.

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 2013, the notional income has to be taken at

Rs.8,000/- p.m.

As per wound certificate, the claimant has

sustained fresh fracture tibia of right leg displaced and

cut lacerated wound over lateral malleoli 10x4 cm.

CW-1, the doctor has stated that the claimant has

suffered whole body disability at 26%. Therefore,

taking into consideration the deposition of the doctor,

CW-1 and injuries mentioned in the wound certificate,

the whole body disability can be taken at 9%. The

claimant is aged about 24 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.1,55,520/- (Rs.8,000*12*18*9%) on account of

'loss of future income'.

Since the income of the claimant is enhanced to

Rs.8,000/- per month, the claimant is entitled for

compensation of Rs.48,000/- (Rs.8,000*6 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.15,000/- 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 40,000 40,000 Medical and incidental 119,343 119,343 Loss of income during 36,000 48,000 laid up period Loss of amenities 15,000 40,000 Loss of future income 90,720 155,520 Total 301,063 402,863

The claimant is entitled to a total compensation

of Rs.402,863/-.

The Insurance Company is directed to deposit

the compensation amount along with interest at 8%

p.a. within a period of four weeks from the date of

receipt of copy of this judgment excluding interest for

the delayed period of 181 days in filing the appeal.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

Accordingly, the appeal is allowed in part.

Sd/-

JUDGE

DM