Karnataka High Court
Sri Nagaraj H T vs Iffco Tokio General Insurance Co ... 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.7785 OF 2013 (MV)
BETWEEN:
Sri. Nagaraj H.T.,
S/o Thimmarayappa,
Aged about 46 years,
Residing at No.244/11,
Sriram Complex,
Avalahalli, Singanayakanahalli,
Yelahanka Hobli,
Bangalore North Taluk.
... Appellant
(By Sri.P.Shiva Kumar., Advocate)
AND:
1. IFFCO-TOKIO General Insurance Co. Ltd.,
Regional Office,
No.8, 3rd Main,
Shanthi Towers,
5th Floor, East of NGEF Layout,
Kasturinagar,
Bangalore-560 043.
Rep. by its Manager.
2. Sri. Paramesh S.R.,
S/o Ramaiah C.,
Residing at
Singanayakanahalli,
2
Yelahanka, Bangalore-560 064.
... Respondents
(By Sri.E.I.Sanmathi, Advocate for R1 )
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:31.05.2013
passed in MVC No. 1702/2012 on the file of the Judge,
Court of Small Causes, 26th ACMM, Bangalore, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
This MFA, coming on for admission, 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 31.05.2013 passed
by the Motor Accident Claims Tribunal, Bangalore in
MVC No.1702/2012.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 16.11.2011 at about 6.30
a.m., the claimant was waiting for the bus at
Yelahanka - Doddaballapura road, near Avalahalli bus
stop. At that time, the rider of the motorcycle bearing
registration No.KA-50/L-557 drove the same at a high
speed and in a rash and negligent manner dashed
against 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
Operation Officer at ACE Star Detective Agency
Security Consultants, Banasawadi and was earning
Rs.10,000/- 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 Nos.1
and 2 filed separate written statements in which the
averments made in the petition were denied. The
age, avocation and income of the claimant and the
medical expenses are denied. It was admitted by
respondent No.1 with respect of policy and also
admitted the validity of the insurance policy as on the
date of the accident. It was further pleaded that the
claimant has taken treatment as inpatient in ESI
hospital and was eligible to claim benefit under ESI
Scheme.
It was pleaded by respondent No.2 that the
offending vehicle was insured with respondent No.1
which is valid for a period from 20.7.2011 to
19.7.2012 and he was also having valid driving licence
to drive the said vehicle. Hence, they 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, Dr.C.V.Kumar as PW-2, one
Kumar and Nagaraju, Medical Record Keepers as PW-3
and PW-4 and got exhibited 23 documents namely
Ex.P1 to Ex.P23. 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.1,11,300/- along with interest at the rate of 6%
per annum and directed the insurance company to
deposit the compensation amount along with interest.
Being not satisfied claimant has filed this appeal.
6. The learned counsel for the claimant has
raised the following contentions:
Firstly, at the time of the accident claimant was
aged about 46 years, he suffered grievous injuries.
He examined the doctor PW-2, who deposed that
there is 45% left lower limb disability. The Tribunal
only on the ground that he is not the treated doctor
has not awarded any compensation under the head
'loss of future earnings due to disability' contrary to
the materials available on record.
Secondly, the compensation awarded by the
Tribunal on the 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 raised the following
contentions:
Firstly, even though the claimant claims that he
was earning Rs.10,000/- 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-2 is not the treated doctor.
Therefore, the Tribunal has rightly not considered 'loss
of future income due to disability'.
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.
Perused the original records, judgment and award
passed by the Tribunal.
9. It is not in dispute that the claimant
suffered injuries in the accident 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.
The claimant examined the doctor as PW-2, who
in his testimony has stated that the claimant has
suffered 45% of the limb disability and 15% whole
body disability, since the doctor is not the treated
doctor, taking into consideration the wound certificate
as per Ex.P6, I am of the opinion that the whole body
disability can be assessed at 10%. The claimant was
aged about 46 years at the time of the accident and
multiplier applicable to his age group is '13'. Thus, the
claimant is entitled to Rs.1,01,400/- (Rs.6,500*12*
13*10%) on account of 'loss of future income due to
disability'.
Since the income of the claimant is enhanced to
Rs.6,500/- per month, the claimant is entitled for
compensation of Rs.13,000/- (Rs.6,500*2 months)
under the head 'loss of income during laid up period'.
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 45,000 45,000
Future Medical expenses 25,000 25,000
Diet, conveyance and 3,600 3,600
attendant charges
Loss of income during 11,700 13,000
laid up period
Loss of amenities 20,000 20,000
Loss of future income - 1,01,400
Future medical expenses 25,000 25,000
Total 1,11,300 2,33,000
The claimant is entitled to a total compensation
of Rs.2,33,000/-. The Insurance Company is directed
to deposit the compensation amount along with
interest at 6% per annum (excluding future medical
expenses) 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/-
