Karnataka High Court
Sri B.K. Kumar vs Sri A.P. Rajendhiran on 6 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.6139 OF 2013(MV)
BETWEEN:
SRI. B.K.KUMAR
S/O KENCHAIAH
AGE 27 YEARS, OCC:NILL
R/O BEERAGANAHALLI
YADIYR, KUNIGAL TALUK,
TUMKUR DISTRICT-572130.
... APPELLANT
(BY SMT. SUNITHA B.H., ADV. FOR
SRI. SURESH M. LATUR, ADV. )
AND
1. SRI. A.P. RAJENDHIRAN
S/O PALANISWAMY
R/AT NO.4/135-B
NADUVANKADU
MAVELIPALYAM POST
IVELI VILLAGE, SANKARI TALUK
SALEM DISTRICT
TAMIL NADU STATE-636001.
2. THE MANAGER
ROYAL SUNDARM ALLIANCE
2
INSURANCE CO. LTD.,
I & II FLOOR, SREE BALAJI SOVEREIGN
132, BRIGADE ROAD
BANGALORE-560 025.
... RESPONDENTS
(BY SRI. RAVI S SAMPRATHI, ADV. FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 20.04.2013 PASSEED IN MVC NO.9332/2007
ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES
JUDGE, AND XXXIV ACMM, MEMBER, ADDITIONAL
MACT, COURT OF SMALL CAUSES, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCMENT 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 20.04.2013 passed
by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 26.08.2007, at about 7.45
a.m., the claimant was proceeding on his Tempo
Traveller (Ambulance) bearing Reg.No.TN-55/B-7254
from Bangalore towards Vellur, on Hosur-Krishnagiri
NH-7 road at Koparanthana Forest and when he
stopped the said vehicle on the extreme left side of
the road due to technical defect, at that time, a
Tempo bearing Reg.No.TN-30/U-2878 driven by its
driver came from behind, at a high speed and in a
rash and negligent manner and dashed against 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 at the time of
accident he was aged about 21 years, and was a
driver by profession and was earning Rs.8,000/- 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.2
filed written statement in which the averments made
in the petition were denied. It was pleaded that the
issuance of policy if any, is subject to terms and
conditions of the policy. It was further pleaded that
the accident was not due to any rash and negligent
driving of the offending vehicle. It was further
pleaded that the driver of the offending vehicle was
not holding valid and effective driving licence as on
the date of accident. it was further pleaded that the
false case has been filed against the driver of the
offending Tempo by the claimant. The age, avocation
and income of the claimant and the medical expenses
are denied. 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.S.Rajanna as PW-2 and got
exhibited 9 documents namely Ex.P1 to Ex.P9. On
behalf of the respondents, neither any witness was
examined nor marked 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.1,38,800/- 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, at the time of accident, claimant was
aged about 21 years, and was a driver by profession
and was earning Rs.8,000/- per month. He has
produced D.L. as per Ex.P4. Tribunal is not justified in
taking monthly income of the claimant as Rs.3,000/-,
which is on the lower side.
Secondly, due to the accident the claimant has
suffered injuries and he has examined the doctor, who
has assessed whole body disability at 18%. The
Tribunal is not justified in taking disability of 10%
which is on the lower side.
Thirdly, due to the accident, he has suffered two
major injuries and he was inpatient for a period of 9
days. He has suffered lot of pain during the
treatment. The compensation awarded by the
Tribunal under the heads of 'pain and sufferings', 'loss
of amenities' and 'conveyance' 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 raised the following
contentions.
Even though the claimant was earning
Rs.8,000/- per month, but except producing D.L., he
has not produced even bank account to show that he
was earning the said amount. Therefore, the Tribunal
has rightly assessed monthly income of the claimant
as Rs.3,000/-.
Secondly, the injuries suffered by the claimant
are minor in nature. Taking into consideration the
evidence of the doctor, the compensation awarded by
the Tribunal under the heads of 'pain and sufferings'
and 'loss of amenities' are just and reasonable.
Thirdly, the doctor has assessed disability to the
particular limb to the extent of 36%, even taking into
consideration the same, if 1/3 is considered to the
whole body disability it comes to 10% not 18% as
contended by the appellant. 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 claimant has
suffered injuries in a road traffic accident occurred on
26.08.2007 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. Superficial abrasion over left side of
the forehead and
2. A lacerated wound on anterior in
respect of left leg.
The claimant has examined Dr.S.Rajanna as
Pw.2, who deposed that the claimant has suffered
disability to the particular limb to the extent of 36%
and whole body disability at 18%. Taking into
consideration the evidence of the doctor and
considering the age and avocation of the claimant and
wound certificate-Ex.P2, I am of the opinion that the
whole body disability can be assessed at 15%.
Even though the claimant has claimed that he
was earning Rs.8,000/- per month as driver, but he
has not produced any documents or any bank account
to establish the same. Under this circumstance, 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 2007, the notional income has to be
taken at Rs.4,000/- per month. At the time of
accident, claimant is aged about 21 years and
multiplier applicable to his age group is '18'. Thus, the
claimant is entitled for compensation of Rs.1,29,600/-
(Rs.4,000*12*18*15%) on account of 'loss of future
income'.
Since the income of the claimant is enhanced to
Rs.4,000/- per month, the claimant is entitled for
compensation of Rs.8,000/- (Rs.4,000*2 months)
under the head 'loss of income during laid up period'.
The claimant was treated as inpatient for more
than 9 days in the hospital and thereafter he has
undergone surgery. He has suffered lot of pain during
the treatment. He has examined the doctor, who has
assessed disability of 36% to the particular limb and
18% to the whole body. He has to suffer with the
disability throughout his life. Hence, I am inclined to
enhance the sum awarded under the head of 'pain &
sufferings' from Rs.35,000/- to Rs.45,000/-, under the
head of 'loss of amenities' from Rs.10,000/- to
Rs.25,000/- and under the head of 'conveyance' from
Rs.5,000/- to Rs.10,000/-.
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.)
Loss of future income 64,800 1,29,600
Pain & sufferings 35,000 45,000
Medical expenses 10,000 10,000
Loss of income during 6,000 8,000
laid up period
Attendant charges 3,000 3,000
Food, nourishment, diet 5,000 5,000
Conveyance 5,000 10,000
Loss of amenities 10,000 25,000
Total 1,38,800 2,35,600
The claimant is entitled to a total compensation
of Rs.2,35,600/-.
The Insurance Company is directed to deposit
the compensation amount along with interest at 6%
p.a. 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
Mkm/-
