Karnataka High Court
Sri.A.Mithun Kumar vs Sri.K.Ganesh Aithal on 20 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.9157 OF 2013(MV)
BETWEEN:
SRI. A.MITHUN KUMAR
S/O A. DASS KUMAR
AGED ABOUT 31 YEARS
R/AT NO.B-4,
VENKATAPRASIDDI APTS,
I MAIN, KAGGADASAPURA
C.V.RAMAN NAGAR
BANGALORE-560 093.
... APPELLANT
(BY SRI.K. PRADEEP NAIK, ADV. )
AND
1. SRI. K.GANESH AITHAL
S/O KRISHNA AITHAL
AGED MAJOR
R/AT NO.110, SRIKRISHNA
7TH CROSS, 9TH MAIN
INDUSTRIAL WORKS LAYOUT
SHANKARNAGAR
MAHALAKSHMIPURAM LAYOUT
BANGALORE-560 096.
2
2. UNIVERSAL SAMPO GENERAL
INSURANCE COMPANY LIMITED.,
NO.7/3, KVD TOWERS
II FLOOR, ABOVE BARCLAYS FINANCE,
OLD MADRAS ROAD
OPP. TO 100 FT ROAD, INDIRANAGAR
BANGALORE-560 038.
... RESPONDENTS
(BY SRI.RAVI S SAMPRATHI, ADV. FOR R2:
R1 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:SED IN MVC NO.1532/2011 ON THE FILE OF
THE XII ADDITIONAL SMALL CAUSES JDUGE AND
MEMBER MACT, BANGALORE, 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 17.7.2013 passed by the Motor
Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 25.1.2011, the claimant was
walking from his office towards residency bus stop, while
crossing RRMR Road at Richmond Circle from South to
North direction, at that time, car bearing registration
No.KA-02-MD-3943 being driven by its driver at a high
speed and in a rash and negligent manner, dashed to
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
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 due to the
rash and negligent riding of the vehicle by the claimant
himself. 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 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.Raghavendra M.S. as PW-2
and got exhibited documents namely Ex.P1 to Ex.P17.
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.2,25,830/- 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 as per wound certificate the claimant has
sustained Type I open fracture of right tibia, fracture
shaft of right fibula, intertrochanteric fracture left hip.
PW-2, the doctor has stated in his evidence that the
claimant has suffered disability of 50% to left lower limb
and 16% to whole body. He was treated as inpatient for
a period of 10 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 incidental expenses
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
PW-2 the doctor has stated in his evidence that the
claimant has suffered disability of 50% to left lower limb
and 16% to whole body, the claimant has failed to prove
that due to the disability, there is loss of income.
Moreover, he has continued his job. Therefore, the
Tribunal has rightly not granted any compensation under
the head of 'loss of future income'. Further, 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.
As per wound certificate the claimant has
sustained Type I open fracture of right tibia, fracture
shaft of right fibula, intertrochanteric fracture left hip.
PW-2, the doctor has stated in his evidence that the
claimant has suffered disability of 50% to left lower limb
and 16% to whole body. He was treated as inpatient for
a period of 10 days. 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.20,000/- to Rs.45,000/-; under the head of 'pain
and sufferings' from Rs.35,000/- to Rs.50,000/- and
under the head of 'food, conveyance and attendant
charges' from Rs.10,000/- to Rs.15,000/- .
Since, the claimant has continued his job, there is
no loss of income. Therefore, the Tribunal has rightly not
granted any compensation under the head 'loss of future
income'. Further, compensation awarded by the
Tribunal under other heads is just and reasonable.
10. Thus, the claimant is entitled to an amount
of Rs.45,000/- in addition to the compensation of
Rs.2,25,830/- awarded by the Tribunal.
The Insurance Company is directed to deposit the
compensation amount along with interest at 6% p.a.
from the date of filing of the claim petition till the date
of realization, within a period of four 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.
Sd/-
JUDGE
DM
