Sri Dowresha vs Syed Salauddin
2021 Latest Caselaw 669 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 12TH DAY OF JANUARY 2021

                      BEFORE

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

            MFA No.9391 OF 2013(MV)

BETWEEN:

SRI. DOWRESHA
S/O SHIVASHANKARAPPA
AGED ABOUT 29 YEARS
RESIDING AT HONNAVILE
SHIMOGA TALUK-577203.
                                      ... APPELLANT

(BY SRI. K.V.SATHISHCHANDRA, ADV. )

AND

1.    SYED SALAUDDIN
      S/O SYED MAHABOOB
      MAJOR
      RESIDENT AT NO.557
      OLD MADRAS ROAD
      K.R.PURAM, BANGALORE-560 036.

2.    KARAN
      S/O LAKSHMANA
      MAJOR
      RESIDENT OF DOOR NO.370
      5TH CROSS, 2ND MAIN
      DHARGA MAHAL
                            2



     DOORVANI NAGAR POST
     K.R.PURAM, BANGALORE-560 036.

3.   NEW INDIA ASSURANCE
     COMPANY LIMITED
     CITY BRANCH, MAHADEVAPURA
     NO.61/1, REDDY COMPLEX
     WHITE FIELD MAIN ROAD
     MAHADEVAPURA POST
     BANGALORE-560 048.
                              ... RESPONDENTS

(BY SRI.B.S.SRIDHAR, ADV. FOR R3)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV   ACT   AGAINST    THE JUDGMENT        AND AWARD
DATED: 19.06.2013 PASSED IN MVC NO.692/2011 ON
THE FILE OF THE PRL. SESSIONS JUDGE, SHIMOGA
PARTLY     ALLOWING     THE    CLAIM    PETITION    FOR
COMPENSATION AND SEEKING ENHANCEMENT 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 19.6.2013 passed

by the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 22.12.2010, the claimant

was proceeding on his motorcycle bearing registration

No.KA-18-J-6993 from Hole Bus stop towards

Honnavile in front of Sahyadri College on BH Road, at

that time, lorry bearing registration No.KA-01-D-9866

being driven by its driver at a high speed and in a

rash and negligent manner, dashed to 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 he was working as

agriculturist and arecanut cheni business and was

earning Rs.20,000/- 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.3

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 driver of the offending vehicle did not have valid

driving licence as on the date of the accident. 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 Nos.1 and 2 appeared

but did not choose to file objections.

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.Sudeendra Shetty as PW-2

and got exhibited documents namely Ex.P1 to Ex.P29.

On behalf of the respondents, no witness was

examined as RW-1 and got exhibited document

namely Ex.R1. 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.1,12,000/- 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

contended that even though the claimant claims that

he was doing agricultural work and doing cheni

business and earning Rs.20,000/- per month, but the

Tribunal has taken the notional income as merely as

Rs.4,000/- per month.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered permanent

disability of 14.5% with respect to left lower limb. But

the Tribunal has erred in taking the whole body

disability at only 5%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 20 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. But the Tribunal has failed to grant

any compensation under the head of 'loss of

amenities'. Considering the nature of injuries, the

compensation granted by the Tribunal under the

heads of 'pain and sufferings' and 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 contended that even

though the claimant claims that he was earning

Rs.20,000/- 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, the doctor has stated in his

evidence that the claimant has suffered disability of

14.5% to left lower limb. The Tribunal considering

1/3rd of the disability caused to particular limb, has

rightly assessed the whole body disability at 5%.

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

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 2010, the notional income has to be taken at

Rs.5,500/- p.m.

4As per wound certificate, the claimant has

sustained crush injury on left foot, pain and

tenderness on the right side of the chest, cut injury

about 1 inch insize in right parito occipital region. PW-

2, the doctor has stated that the claimant has suffered

permanent disability of 14.5% with respect to left

lower limb. Therefore, taking into consideration the

injuries mentioned in the wound certificate, the

Tribunal has rightly taken the whole body disability at

5%. The claimant is aged about 25 years at the time

of the accident and multiplier applicable to his age

group is '18'. Thus, the claimant is entitled for

compensation of Rs.59,400/- (Rs.5,500*12*18*5%)

on account of 'loss of future income'.

Since the income of the claimant is enhanced to

Rs.5,500/- per month, the claimant is entitled for

compensation of Rs.22,000/- (Rs.5,500*4 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

'nourishment and attendance charges' from

Rs.5,000/- to Rs.20,000/-.

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 awarded a sum of Rs.40,000/- under the

head of 'loss of amenities'. Further, I am inclined to

enhance the compensation awarded by the Tribunal

under the head of 'pain and sufferings' from

Rs.35,000/- to Rs.50,000/-.

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.) Pain and sufferings 35,000 50,000 Medical expenses 2,800 2,800 Food, nourishment, and 5,000 20,000 attendant charges Loss of income during 16,000 22,000 laid up period Loss of amenities 0 40,000 Loss of future income 43,200 59,400 Transportation and 10,000 10,000 incidental expenses Total 112,000 204,200

The claimant is entitled to a total compensation

of Rs.2,04,200/-.

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.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

Accordingly, the appeal is allowed in part.

Sd/-

JUDGE

DM