Karnataka High Court

Subramani @ Subramanya vs Raju M on 11 January, 2021

Author: H T Prasad

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11TH DAY OF JANUARY 2021

                          BEFORE

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

                MFA No.3172 OF 2017(MV)

BETWEEN:

Subramani @ Subramanya,
S/o Late. Venkataiah,
Aged 59 years,
R/o Mogarahalli Village,
Srirangapatna Taluk,
Mandya District-571438.
                                               ... Appellant

(By Sri.M.Y.Sreenivasam, Advocate)

AND:

1.     Raju M.,
       S/o Mahadevu,
       Major, R/at No.131, Sibbaiyana Manti,
       Belagola Village,
       SrirangapatnaTaluk,
       Mandya District-571439.

2.     The Manager,
       The National Insurance Co. Ltd.,
       Adichunchanagiri Road,
       Kuvempunagar, Mysore-570019.
                                           ... Respondents

(By Sri.M.S.Sriram, Advocate for R2:
R1 is served and unrepresented )
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       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:22.10.2016 passed
in MVC No.1217/2013 on the file of the Additional Senior
Civil Judge, MACT, Srirangapatna, 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 22.10.2016 passed

by the Motor Accident Claims Tribunal, Srirangapatna

in MVC No.1217/2013.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 21.07.2013 at 7.00 p.m.,

the claimant was walking on Mysore - KRS road

towards pump house. At that time, the rider of the

motorcycle bearing registration No.KA-11/EA-0508

rode the vehicle 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 at

BPS Water Department, behind Vikranth Factory,

Mysore - KRS road and was earning Rs.18,000/- 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 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

rider of the offending vehicle was not holding a valid

and effective driving licence to drive the said vehicle.

It was further pleaded that provisions of Section

149(2)(a) of the Act are violated, the respondent No.2

is not liable to pay the compensation. The age,

avocation and income of the claimant and the medical

expenses are denied. 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.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.Karunakar as PW-2 and got

exhibited 11 documents namely Ex.P1 to Ex.P11. On

behalf of the respondents, three witnesses were

examined as RW-1 to RW-3 and got exhibited 4

documents namely Ex.R1 to Ex.R3(a). 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.2,44,550/- along with

interest at the rate of 9% p.a. and since there is

violation of policy conditions, directed the owner of

the offending vehicle to deposit the compensation

amount along with interest. Being aggrieved, this

appeal has been filed.

6. The learned counsel for the claimant raised

the following contentions:

Firstly, even though the claimant claims that he

was earning Rs.18,000/- per month, but the Tribunal

has taken the notional income as only Rs.6,500/- per

month.

Secondly, PW-2, the doctor has assessed 30%

disability to the whole body, but the Tribunal erred in

assessing the whole body disability at 10%.

Thirdly, at the time of the accident the rider of

the motorcycle was not holding a valid and effective

driving licence. In view of the law laid down by the

Hon'ble Apex Court in the case of 'PAPPU AND

OTHERS vs. VINOD KUMAR LAMBA AND

ANOTHER' AIR 2018 SC 592 and a Full Bench

judgment of this Court in 'NEW INDIA ASSURANCE

CO. LTD. BIJAPUR vs. YALLAVVA AND ANOTHER'

ILR 2020 Kar.2239, the insurance company has to

pay the compensation amount with liberty to recover

the same from the owner of the offending vehicle, the

insured. Hence, he sought dismissal of the appeal.

7. Per contra, learned counsel appearing for the

insurance company has raised the following

contentions:

Firstly, even though the claimant has claimed

that he was earning Rs.18,000/- per month, he has

not produced any documents to establish the same.

Secondly, the Tribunal considering the evidence

of the doctor, age of the claimant and wound

certificate Ex.P5 and P6 has rightly assessed the

whole body disability at 10%.

Thirdly, the Tribunal after considering the

evidence of the parties and the materials on record

has granted just and reasonable compensation.

Fourthly, at the time of the accident the rider of

the offending vehicle was not holding a valid and

effective driving licence to drive the said vehicle and

thus, the insured has violated the policy conditions.

Therefore, the Tribunal rightly exonerated the

insurance company and directed the insured to pay

the compensation. Hence, he sought for dismissal of

the appeal.

8. Heard the learned counsel for the parties.

Perused the judgment and award.

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 2013, the notional income has to be taken at

Rs.8,000/- p.m.

The Tribunal after considering the evidence of

the doctor and the wound certificate has rightly

assessed the whole body disability at 10%.

The claimant was aged about 54 years at the

time of the accident and multiplier applicable to his

age group is '11'. Thus, the claimant is entitled to

Rs.1,05,600/- (Rs.8,000*12*11*10%) on account of

'loss of future income'.

Since the income of the claimant is enhanced to

Rs.8,000/- per month and the claimant was inpatient

for more than 20 days, the claimant requires rest for 3

months and is entitled for compensation of

Rs.24,000/- (Rs.8,000*3 months) under the head

'loss of income during laid up period'.

The claimant was treated as inpatient for more

than 20 days in the hospital and thereafter, has

received further treatment. Hence, I am inclined to

enhance the sum awarded under the head of 'loss of

amenities' from Rs.20,000/- to Rs.40,000/-.

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 40,000 40,000 Medical expenses 45,750 45,750 Food, nourishment, 30,000 30,000 conveyance and attendant charges Loss of income during 13,000 24,000 laid up period Loss of amenities 20,000 40,000 Loss of future income 85,800 1,05,600 Future medical expenses 10,000 10,000 Total 2,44,550 2,95,350

The claimant is entitled to a total compensation

of Rs.2,95,350/-.

In view of the law laid down by the Hon the law

laid down by the Hon'ble Apex Court in the case of

PAPPU (supra) and a Full Bench of this Court in the

case of YALLAVVA (supra), the Insurance Company

is directed to deposit the compensation amount along

with interest at 9% p.a. from the date of petition till

payment is made, within a period of four weeks from

the date of receipt of copy of this judgment, with

liberty to recover the same from the owner of the

offending vehicle - insured.