Sri Anand vs United India Insurance Co Ltd
2021 Latest Caselaw 750 Kant

                         1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 13TH DAY OF JANUARY 2021

                      BEFORE

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

            MFA No.5734 OF 2013(MV)

BETWEEN:

SRI. ANAND
S/O KRISHNAPPA K
AGED ABOUT 37 YEARS
RESIDING AT HANIYUR VILLAGE
HESARAGHATTA HOBLI
BANGALORE NORTH TALUK.
                                    ... APPELLANT

(BY SRI.P.SHIVAKUMAR, ADV. )

AND

1.    UNITED INDIA INSURANCE CO. LTD.,
      NEXT TO MAGISTRATE COURT
      NRUPATHUNGA ROAD
      KRISHI BHAVAN
      BANGALORE-01
      REP. BY ITS MANAGER.

2.    SRI. GOVINDA RAJ
      S/O VENKATACHALAIAH
      RESIDING AT NO.260
      1ST MAIN, 2ND CROSS
      NAYANAPPANAHALLI
                            2



     BEGUR POST, BANGALORE-560 0068.

                                      ... RESPONDENTS

(BY SRI. M.V.CHANDRASHEKARA REDDY, ADV. FOR
R1:NOTICE TO R2 IS DISPENSED WITH
V/O DATED:10.07.2017)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:02.03.2013 PASSED IN MVC NO.7799/2010
ON THE FILE OF THE XVI ADDITIONAL JUDGE, MACT,
BANGALORE,    PARTLY    ALLOWING   THE   CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSTION.

    THIS MFA COMING ON FOR ADMISSION,
THROUGH 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 02.03.2013 passed

by the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on the claimant was proceeding

on motorcycle bearing registration No.KA-04/V-4238

as a pillion rider, the rider of the said motorcycle

riding the same slowly, cautiously, following all traffic

rules on Bangalore-Doddaballapur road, towards

Bangalore, when they reached near Navatha

transport, Singanayakanahalli, at that time, rider of

TVS XL Super moped bearing Reg.No.KA-51/V-6903

came from opposite direction at a high speed and in a

rash and negligent manner, dashed against 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 earning

Rs.2,00,000/- per annum from vending the milk. 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, respondent Nos.1 and

2 appeared through their respective counsel and filed

separate written statement in which the averments

made in the petition were denied. It was pleaded that

the issuance of policy bearing No.00014236 valid from

16.02.2010 to 15.02.2011 in respect of TVS moped

bearing Reg.No.KA-04/V-4238 and its liability, if any,

is subject to terms and conditions of the policy. It

was further pleaded that respondent No.2 has violated

terms of the policy by entrusting his TVS moped to his

rider who has not possessed valid and effective driving

licence to drive. It was further pleaded that the

accident was due to the rash and negligent riding of

the motorcycle by its rider. Hence, he sought for

dismissal of the petition.

The age, avocation, income of the claimant and

injuries suffered, treatment taken and medical

expenses incurred by the claimant are denied. It was

pleaded by respondent No.2 that the accident was not

occurred due to rash and negligent riding of the TVS

XL moped by its rider, and the accident has occurred

solely on account of rash and negligent riding of the

motorcycle by its rider. It was further pleaded that

the respondent No.2 has insured his vehicle with

respondent No.1, the policy was in force as on the

date of accident. The compensation claimed by the

claimant is exorbitant and excessive. Hence, he

sought for dismissal of the claim 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-2 and Dr.Arun Kumar,

Dr.R.Chandrashekar, Medical Record Keeper Raghu

D., General Surgeon Dr.Raja Reddy and Accounts

Assistant Chandra Shekar A. were examined as PW.3

to PW.7 respectively and got exhibited 40 documents

namely Ex.P1 to Ex.P40. On behalf of the

respondents, Vijaykumar, PSI was examined as RW-1

and Administrative officer of Insurance Company

Kusuma K. examined as RW.2 and got exhibited 3

documents namely Ex.R1 to Ex.R.3. 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.6,84,000/- along with interest at

the rate of 6% p.a. and directed Insurance Company

to deposit compensation amount along with interest.

Being aggrieved, this appeal has been filed.

6. The learned counsel for the claimant has

raised the following contentions.

Firstly, as on the date of accident claimant was

aged about 34 years and was earning Rs.2,00,000/-

per annum by vending milk. Due to the accident he

has suffered grievous injuries. He has examined

Dr.Chandrashekar as PW.4 and Dr.Raja Reddy as

PW.6, who have deposed that claimant has suffered

whole body disability of 51.11/- and permanent

physical disability of 40% and further deposed that

claimant has suffered blunt injury abdomen with

unstable pelvic fracture with severe perineal injury

with bladder and urethral injury. He further

contended that claimant needs regular monthly

colostomy bag changes and not able to do labour

manual work. The Tribunal has failed to consider

functional disability. The Tribunal instead of

considering 100% functional disability has assessed

only 40% disability to whole body. He further

contended that due to accident claimant is unable to

do his day today work. The Tribunal has not

considered addition of 'future prospects'.

Secondly, at the time of accident claimant was

aged about 34 years and was earning Rs.2,00,000/-

per annum. The Tribunal has considered only

Rs.4,000/- per month as notional income, which is on

lower side.

Thirdly, due to accident claimant has suffered

grievous injuries. He was inpatient for a period of 36

days. he has suffered lot of pain during the treatment

and he has to suffer with the disability throughout his

life. Tthe compensation awarded by the Tribunal

under the head of 'pain and sufferings' is on the lower

side. The Tribunal has not granted any compensation

under the heads of 'loss of amenities' and 'loss of

income due to disability'. 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 has examined

the doctor, who has assessed permanent physical

disability of 40%, the Tribunal after considering the

evidence of the doctor and materials available on

record has rightly assessed whole body disability at

40%.

Secondly, even though claimant has claimed that

he was earning Rs.2,00,000/- per annum, he has

produced the certificate issued by Haniyur Milk

producers Co-operative Society for having supplied

milk to the society as per Ex.P15, but he has not

examined author of the said documents to prove his

income. The Tribunal after considering the materials

available on record has rightly assessed monthly

income of the claimant as notionally.

Thirdly, the Tribunal after considering the

evidence of the parties and materials available on

record has awarded just and reasonable

compensation. Hence, he sought dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award of the claims

tribunal.

9. It is not in dispute that the claimant has

suffered injuries in a road traffic accident 26.10.2010

due to rash and negligent riding of the offending

vehicle by its rider. Due to the accident claimant has

suffered the following injuries.

1. Stove in pubis: unstable complicated pelvic

fracture,

2. Distal anorectal avulsion: Intraperitoneal

rupture of urinary bladder,

3. Avulsion of prostatic urethra.

He has examined Dr.R.Chandrashekar as PW.4

and Dr.Raja Reddy as PW.6. in their deposition, they

have deposed that the claimant has suffered grievous

injuries. He has sustained blunt injury abdomen with

unstable pelvic fracture with severe perinea injury

with bladder and urethral injury and he needs regular

monthly colostomy bag changes and not able to do

labour manual work and have assessed permanent

physical disability of 40% for anorectic deformity and

whole body disability of 51.11%. taking into

consideration of avocation of the claimant and

deposition of the Dr. Chandrashekar-PW.4 and Dr.Raja

Reddy-PW.6 and wound certificate-Ex.P4, I am of the

opinion that the whole body disability can be assessed

at 51.11% as rightly assessed by the Doctors.

Even though claimant has claimed that at the

time of accident he was earning Rs.2,00,000/- per

annum, he has produced Ex.P.16 RTC and Ex.P15

certificate issued by Haniur Milk Producers Co-

operative Society, but he has not examined author of

the said documents to prove his income. Under these

circumstances, 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. Accordingly, monthly

income of the claimant is considered as Rs.5,500/-.

As on the date of accident claimant was aged

about 34 years and multiplier applicable to his age

group is '16'. Thus, the claimant is entitled for

compensation of Rs.5,39,721/- (Rs.5,500*12*16

*51.11%) on account of 'loss of future income'.

Due to the accident claimant has suffered the

above said injuries. He examined the doctor, who has

assessed whole body disability at 51.11%. He has

undergone surgery and he was inpatient for a period

of 36 days. He has suffered lot of pain during the

treatment and he has to suffer with the disability and

unhappiness throughout his life. Taking into

considering the evidence of the doctor and materials

available on record, I am of the opinion that claimant

is entitled for compensation of Rs.60,000/- under the

head of 'loss of amenities'.

Since he was a inpatient for a period of 36 days

and also has taken treatment as outpatient even after

discharge from the hospital. Taking into consideration

the injuries suffered by the claimant, I am of the

opinion that, claimant is entitled for compensation of

Rs.33,000/- (5,500 * 6 months) under the head of

'loss of income during the laid up period'.

Claimant has examined Dr.Raja Reddy as PW.6,

who has deposed that claimant has sustained blunt

injury abdomen with unstable pelvic fracture with

severe perineal injury with bladder and urethral injury

and further deposed that claimant needs regular

monthly colostomy bag changes and not able to do

labour manual work. Taking into consideration the

evidence of the doctor, I am of the opinion that

claimant requires sum of Rs.60,000/- to meet the

future medical expenses.

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 50,000 50,000 Loss of earning capacity 3,07,200 5,39,722 Food, conveyance and 20,000 20,000

other expenses during treatment period Loss of income during - 33,000 laid up period Medical expenses 3,06,600 3,06,600 Loss of amenities - 60,000 Future medical expenses - 60,000 Total 6,83,800 10,69,322

The claimant is entitled to a total compensation

of Rs.10,69,322/-.

The Insurance Company is directed to deposit

the compensation amount along with interest at 6%

p.a. 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 Mkm