Mr Madhusudhan Rai @ Madhusudhan vs The Divisional Manager
2021 Latest Caselaw 125 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 5TH DAY OF JANUARY 2021

                         BEFORE

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

               M.F.A.No.9124 OF 2010(MV)
BETWEEN:

Mr. Madhusudhan Rai @
Madhusudhan,
S/o Shri. Battyappa Rai,
Aged about 34 years,
Residing at Kambalabettu House,
Vitlamudnur Village, Bantawala Taluk,
Dakshina Kannada District.
                                               ... Appellant

(By Sri. Joseph Anil Kumar A., Advocate)

AND:

1.     The Divisional Manager,
       The New India Assurance Company Ltd.,
       Divisional Office-8,
       No.47, Gopal Complex,
       Yeshwanthpura, Bangalore-560 022.

2.     Mr. K.R.Divakar,
       No.69, 6th Main, 15th Cross,
       J.C.Nagar, Kurubarahalli,
       Kasturbanagar, Mysore Road,
       Bangalore-560 086.
                                           ... Respondents

(By Sri.P.B.Raju, Advocate for R1:
Notice to R2 is dispensed with )
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       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:28.04.2010 passed
in MVC No. 8924/2008 on the file of the X Additional Judge
and Member MACT, Bangalore, partly allowing the claim
petition for compensation and seeking enhancement of
compensation.

      This MFA, coming on for hearing, through video
conference, this day, this 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 28.04.2010 passed

by the Motor Accident Claims Tribunal in MVC

No.8924/2008.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 19.08.2008 at 12.30 a.m.

the claimant was proceeding in a motorcycle bearing

registration No.KA-19/V-6216 along with a pillion rider

on B.B.Road, Allalasandra bypass junction, Yelahanka,

Bangalore. At that time, a Tata Sumo bearing

registration No.KA-05/C-1447 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 as a

Tourist bus driver and was earning Rs.18,000/- per

month. 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.1

filed written statement in which the averments made

in the petition were denied. It was pleaded that the

accident was due to the rash and negligent riding of

the vehicle by the claimant himself. The age,

avocation and income of the claimant and the medical

expenses are denied. It was further pleaded that the

liability if any, is subject to the terms and conditions

of the policy and subject to valid and effective driving

licence by the driver of the offending vehicle. 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.2 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.Niranjan Murthy as PW-3

and got exhibited documents namely Ex.P1 to Ex.P14

and Ex.P19 and P20. On behalf of the respondents,

neither any witness was examined nor got exhibited

any 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.2,69,100/- 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. Sri Joseph Anil Kumar, the learned counsel

for the claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was working as a driver and was earning Rs.18,000/-

per month, but the Tribunal has taken the notional

income as only Rs.3,000/- per month.

Secondly, the claimant has produced Ex.P21

medical bills amounting to Rs.1,38,375/-, the Tribunal

has not considered the same. Hence, he sought for

allowing the appeal.

7. On the other hand, Sri P.B.Raju, the

learned counsel for the Insurance Company has raised

the following contentions:

Firstly, even though the claimant produced a

salary certificate to show that he was earning

Rs.18,000/- per month, he has not examined the

author of the document. Therefore, the Tribunal has

rightly assessed the notional income of the claimant.

Secondly, as per Ex.P21 Rs.1,38,375/- is

claimed, some of the bills are overlapping, therefore,

the Tribunal has rightly taken into account Ex.P11 and

awarded the compensation under the head 'medical

expenses'.

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 for dismissal of the

appeal.

8. Heard the learned counsel for the parties.

Perused the original records, judgment and award

passed by the Tribunal.

9. It is not in dispute that the claimant suffered

injuries in the road traffic accident occurred due to

rash and negligent driving of the offending vehicle by

its driver.

Due to the accident the claimant has suffered

the following injuries:

      (1)     Head injury.

      (2)     Fracture of right femur.

      (3)     Fracture of right tibia and fibula

      (4)     Sutured wound over scalp.

Even though the claimant claimed that he was

earning Rs.18,000/- per month and has produced the

salary certificate, he has not examined the author of

the document. Under these circumstances, the

Tribunal had no other option but to assess the

notional income. The notional income assessed by the

Tribunal is on the lower side and it 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 2008, the notional income has

to be taken at Rs.4,500/- per month. The Tribunal

has rightly assessed the whole body disability at 10%.

At the time of the accident the claimant was aged

about 32 years and the applicable multiplier is '16'.

Thus, the claimant is entitled to Rs.86,400/-

(Rs.4,500*12*16*10%) on account of 'loss of future

income'.

Since the income of the claimant is enhanced to

Rs.4,500/- per month, the claimant is entitled for

compensation of Rs.86,400/- (Rs.4,500*6 months)

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

In respect of medical expenses awarded by the

Tribunal is concerned, the claimant has produced

Ex.P21 medical bills amounting to Rs.1,38,375/-,

some of the bills are overlapped. Taking into

consideration of the same, the remaining amount of

Rs.1.00 lakh has to be awarded towards 'medical

expenses' in addition to the amount awarded by the

Tribunal.

The compensation awarded by the Tribunal

under other heads are 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 25,000 Medical expenses 1,23,500 2,23,500 Food, nourishment, 10,000 10,000

conveyance and attendant charges Loss of income during 18,000 27,000 laid up period Loss of amenities 25,000 25,000 Loss of future income 57,600 86,400 Disfigurement 10,000 10,000 Total 2,69,100 4,06,900

The claimant is entitled to a total compensation

of Rs.4,06,900/-. The Insurance Company is directed

to deposit the compensation amount along with

interest at 6% per annum from the date of 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

Cm/-