Sri V. Rajanna vs Mohammed Sameer M.S
2021 Latest Caselaw 238 Kant

                        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. 7725 OF 2013(MV)

BETWEEN:

SRI.V. RAJANNA
S/O VENKATAPPA
AGED ABOUT 47 YEARS
R/AT WARD NO.21
PARVATHIPURA
NEAR OM SHAKTHI TEMPLE
HOSKOTE TOWN
BENGALURU DISTRICT.
                                     ... APPELLANT

(BY SRI.SHRIPAD V SHASTRI., ADV. )

AND

1.    MOHAMMED SAMEER M.S
      MAJOR IN AGE, NO.95
      TTB HOUSE, MEDAHALLI VILLAGE
      VIRGO NAGAR POST
      OLD MADRAS ROAD
      BENGLURU-560 049.

2.    THE REGIONAL MANAGER
      M/S UNITED INDIA INSURANCE CO. LTD.,
      II PARTY HUBB
                            2



     5TH FLOOR, KRISHI BHAVANA
     CORPORATION CIRCLE
     BENGALURU-560 001.
     BY ITS MANAGER.
                                       ... RESPONDENTS

(BY SRI. RAMESH BENNI, ADV.)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV   ACT    AGAISNT   THE JUDGMENT         AND AWARD
DATED:28.06.2013 PASSED IN MVC NO.7231/2011
ON THE FILE OF THE XXIV ADDITIONAL SMALL
CAUSES JUDGE, AND XXII ACMM, MACT, BANGALORE,
PARTLY     ALLOWING     THE    CLAIM    PETITION      FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.


     THIS    MFA    COMING     ON    FOR      ADMISSION,
THORUGH     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 28.6.2013 passed

by the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 12.10.2011, the claimant

was waiting for bus to go to Hoskote at Veeranahalli

bus stop on NH-4, at that time, motorcycle bearing

registration No.KA-53-R-6668 being ridden by its rider

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 the claimant was aged about 47 years

and he was working as autodriver was earning

Rs.7,500/- 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 riding of

the offending vehicle by its rider.

4. On service of notice, both the respondents

appeared through counsel. 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

insurer of the motorcycle has pleaded that the liability

is subject to terms and conditions of the policy and

denied the accident and also denied the age,

occupation and income of the claimant. The claimant

colluded with the owner to fix the insured to get

unjust compensation. It was further pleaded that the

quantum of compensation claimed by the claimant is

exorbitant. Hence, he sought for dismissal of the

petition.

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, Mr.S Lakshmi Devi as PW-2, and

Dr.Chethan as PW-3 and got exhibited documents

namely Ex.P1 to Ex.P24. On behalf of the

respondents, no witness was examined but got

exhibited documents namely Ex.R1. The Claims

Tribunal, by the impugned judgment, inter alia, held

that the accident took place on account of rash and

negligent riding of the offending vehicle by its rider, as

a result of which, the claimant sustained injuries. The

Tribunal further held that the claimant is entitled to a

compensation of Rs.3,43,100/- 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. The learned counsel for the claimant

submitted that even though the claimant claims that

he was working as auto driver and earning Rs.7,500/-

per month, but the Tribunal has taken the notional

income as merely as Rs.5,000/- per month. Secondly,

PW-3, the doctor has stated in his evidence that the

claimant has suffered permanent disability of 22% to

whole body. But the Tribunal has erred in taking the

whole body disability at only 15%. Thirdly, due to the

accident, the claimant has sustained grievous injuries.

He was treated as inpatient for a period of 19 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.

Fourthly, PW-3 the doctor has stated that the claimant

has to undergo one more surgery and estimated cost

of the surgery is Rs.55,000/- and Rs.70,000/- for

removal of implants. But the Tribunal has granted as

merely as Rs.30,000/- under the head of 'future

medical expenses'. 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.7,000/- 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-3, the doctor has

stated in his evidence that the claimant has suffered

disability of 22% to whole body. But the Tribunal

considering the injuries sustained by the claimant, has

rightly assessed the whole body disability at 15%.

Thirdly, considering the evidence of the doctor, the

compensation awarded by the Tribunal under the head

'future medical expenses' is just and proper. Fourthly,

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 2011, the notional income has to be taken at

Rs.6,500/- p.m.

As per wound certificate, the claimant has

sustained fracture deformity at right lower limb,

fracture deformity at right lower limb, compression

tenderness over palms, abrasion of 1x1 over left

elbow, fracture of left femur and fracture of middle

1/3rd shaft fibula and segmental of tibia. PW-3, the

doctor has stated that the claimant has suffered whole

body disability at 22%. Therefore, taking into

consideration the deposition of PW-3 and injuries

mentioned in the wound certificate, the Tribunal has

rightly taken the whole body taken at 15%. The

claimant is aged about 47 years at the time of the

accident and multiplier applicable to his age group is

'13'. Thus, the claimant is entitled for compensation of

Rs.1,52,100/- (Rs.6,500*12*13*15%) on account of

'loss of future income'.

Since the income of the claimant is enhanced to

Rs.6,500/- per month, the claimant is entitled for

compensation of Rs.19,500/- (Rs.6,500*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.40,000/- to Rs.60,000/-.

PW-3 the doctor in his evidence has stated that

the claimant has to undergo one more surgery and

estimated cost of the surgery is Rs.55,000/- and

Rs.70,000/- for removal of implants. Considering the

same, I am inclined to enhance the sum awarded by

the Tribunal under the head of 'future medical

expenses' from Rs.30,000/- to Rs.80,000/-.

The compensation awarded by the Tribunal

under other heads remains unaltered.

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 expenses 89,103 89,103 Food, nourishment, 12,000 12,000 conveyance and attendant charges Loss of income during 15,000 19,500 laid up period Loss of amenities 40,000 60,000 Loss of future income 117,000 152,100 Future medical expenses 30,000 80,000 Total 343,103 452,703 Rounded off 343,100 452,700

The claimant is entitled to a total compensation

of Rs.452,700/-.

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

DM CT-RK