Vijaya Kumar vs D E Shivaraj
2021 Latest Caselaw 51 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JANUARY 2021

                        PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

               M.F.A. NO.4965 OF 2014 (MV)
BETWEEN:

VIJAYA KUMAR S/O KUPPU SWAMY
AGED ABOUT 45 YEARS
GARAGE WORK
R/O GUNDAPPA SHED
1ST CROSS, SHIMOGA AT & TALUK-577201
REP. BY THE NEXT FRIEND HIS WIFE
SMT. AMUDA W/O VIJAY KUMAR
AGED ABOUT 42 YEARS
R/O GUNDAPPA SHED
1ST CROSS, SHIMOGA
AT & TALUK-577201.
                                               ... APPELLANT
(BY MR. RAVINDRANATH M, ADV.,)

AND:

1.     D.E. SHIVARAJ S/O ESHWARAPPA
       AGED ABOUT 38 YEARS
       DRIVER OF THE MARUTHI OMIN VAN
       BEARING NO.KA-15-M-250
       R/O VENKATESH NAGAR
       3RD CROSS, SHIMOGA AT & TALUK-577201.

2.     PRAVEEN KUMAR S/O JANARDHAN ACHAR
       AGE MAJOR, OWNER OF THE MARUTHI
       OMNI VAN BEARING NO.KA-15-M-250
       R/O KALIKAMBA NILAYA
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      COLLEGE ROAD, BYNDOOR
      KUNDAPURA-576201.

3.    THE MANAGER
      THE ORIENTAL INSURANCE CO. LTD.,
      GARDEN AREA, 1ST CROSS
      SHIMOGA AT & TQ-577201
      (POLICY NO.422700/31/2008/9551, VALID
      FROM 05.01.2008 TO 04.01.2009)
                                           ... RESPONDENTS
(BY MR. B.C. SEETHARAMA RAO, ADV., FOR R3
R1 & R2 NOTICE DISPENSED WITH)

                                  ---

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 29.3.2014 PASSED
IN MVC NO.274/2009 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE, MACT-6, SHIMOGA PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THIS M.F.A. COMING ON FOR ORDERS,                   THIS    DAY,
ALOK ARADHE J., 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 seeking enhancement of the

amount of compensation, against the judgment dated

29.03.2014 passed by the Motor Accident Claims Tribunal

(hereinafter referred to as 'the Tribunal' for short).

2. Facts leading to filing of this appeal briefly stated

are that on 25.12.2008 at about 5.15 p.m., the claimant

Vijay Kumar was proceeding in a Bajaj Scooter bearing

Registration No.KA-14-H-2191 near Shrinidhi Wine Store,

Shivamoga. At that time, a Maruthi Omni Van bearing

Registration No. KA-15-M-250 which was being driven by its

driver in rash and negligent manner dashed against the

scooter of the claimant. As a result of the aforesaid accident,

the claimant sustained grievous injuries and took treatment

as an inpatient for 21 days.

3. The claimant thereupon filed a petition under

Section 166 of the Act inter alia on the ground that the

claimant was admitted to KMC Hospital, Manipal. It was

further pleaded that the claimant was employed as a

Mechanic and was earning a daily wages of Rs.600/-. It is

also pleaded that claimant was still under treatment and

where she took treatment as inpatient for a period of 21

days. It was pleaded that due to the impact of the accident,

the claimant is unable to carry on with his work as before. It

was also pleaded that the accident took place on account of

the rash and negligent driving of the driver of the Maruthi

Omni vehicle. The claimant claimed compensation to the tune

of Rs.40,50,000/- along with interest.

4. The insurance company filed its written statement in

which, inter alia, the mode and manner of the accident was

denied. It was pleaded that the accident occurred on account

of the negligence of the claimant himself. The age,

occupation, income and injuries sustained by the claimant

was denied. It was also pleaded that liability of the insurance

company to the compensation, if any, is subject to the terms

and conditions of the policy. It was also stated that the

compensation claimed by the claimant is highly excessive,

speculative and exorbitant.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant, in order to prove his case,

examined his wife Amuda as PW-2, Dr. Shyamprasad PS

(PW1) and Jamaluddin (PW3) and got exhibited documents

namely Ex.P1 to Ex.C2. The respondents did not adduce any

oral evidence, however, a copy of the insurance policy was

marked as Ex.R1 and Ex.R2. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident took

place on account of rash and negligent driving of the Maruthi

Omni 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.1,47,920/- along

with interest at the rate of 6% p.a. Being aggrieved, this

appeal has been filed by the claimant seeking enhancement

of the amount of compensation.

6. Learned counsel for the claimant submitted that

the Tribunal has grossly erred in assessing the income of the

claimant as Rs.200/- per day as the claimant was earning

Rs.600/- per day working as a Mechanic and running his own

garage. It is further submitted that the Tribunal erred in not

awarding compensation towards disability suffered by the

claimant. It is also urged that the amount of compensation

awarded under all the heads of 'Pain and suffering' , 'Medical

expenses' and 'loss of income during laid up period' as well

as 'loss of amenities' are on the lower side and deserve to be

enhanced suitably. On the other hand, learned counsel for

the insurance company submitted that no evidence has been

adduced by the claimants to prove the income of the

claimant before the Tribunal and that the Tribunal has rightly

taken the income of the deceased notionally at Rs.6,000/-

per month. It is further submitted that the amount of

compensation awarded by the Tribunal under all the heads is

just and proper and does not call for any interference.

7. We have considered the submissions made by

learned counsel for the parties and have perused the record.

The only question which arises for our consideration in this

appeal is with regard to the quantum of compensation.

Admittedly, the claimant has not produced any evidence with

regard to the income of the deceased. Therefore, the income

of the claimant is to be assessed notionally. Since, the

accident is of the year 2008, the Tribunal has rightly

assessed the income of the claimant notionally at Rs.6,000/-

per month taking into account the age and avocation of the

claimant. Ex.P6 Wound certificate discloses that the claimant

has suffered two simple injuries and one grievous injury to

the left parietal region. It is pertinent to note that the

claimant has not examined the doctor who has treated him

or any other witness to prove the claim of disability suffered

by him. PW1 Dr. Shyamprasad PS has stated in his evidence

that the claimant is not in a fit state of mind to give

evidence. The Tribunal on the basis of Ex.P7 Medical Bills and

Ex.P8 Prescriptions and on the basis preponderance of

probabilities has arrived at the conclusion that the claimant

was an inpatient for 21 days at KMC Hospital from 25.12.008

to 16.01.2009 and that the claimant was laid up for a period

of three months. Therefore, taking into account the nature of

injuries suffered by the claimant as well as the age and

avocation of the claimant, the claimant is held entitled to

Rs.40,000/- towards 'Pain and suffering', Rs.20,000/-

towards Food, nourishment and attendant charges and

Rs.30,000/- on account of loss of amenities. The

compensation awarded by the Tribunal under the other

heads are maintained as no grounds for interference has

been made out. Thus, the claimant is held entitled to a total

compensation of Rs.1,87,220/-. Needless to state that the

aforesaid amount of compensation shall carry interest at the

rate of 6% per annum from the date of filing of the petition

till the date of realization of the amount. To the aforesaid

extent, the judgment of the claims Tribunal is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

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