Karnataka High Court
B H Santhosha vs Devaraja K O on 13 January, 2021
Author: H T Prasad
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.8565 OF 2013(MV)
BETWEEN:
B.H.SANTHOSHA
S/O HANUMANTHAPPA
AGED ABOUT 25 YEARS
R/AT BHOOTHANAGUDI BEEDI
UPPARA CAMP, BIRUR TOWN
KADUR TALUK, CHIKMAGALUR DIST.
... APPELLANT
(BY SRI.K.SRIKANTH PATIL, ADV. )
AND
1. DEVARAJA K.O
S/O ONKARAPPA
AGE 26 YEARS, OCC:DRIVER
R/AT KAMANAKERE VILLAGE AT PO
HIRENALLUR HOBLI, KADUR TALUK
CHIKMAGALUR DIST-577548.
2. SMT. KANNAMMA
W/O PARAMESHWARA
AGE MAJOR,
R/AT KUKUNDUR,
KARKALA TALUK
2
UDUPI DISTRICT-574104.
3. THE NEW INDIA ASSURANCE CO. LTD.,
UDUPI, UDUPI DIST-576101.
... RESPONDENTS
(BY SRI. M.P.SRIKANTH, ADV. FOR R3:
R1 SERVED AND UNREPRESENTED:
AGAINST R2 APPEAL DISMISSED
V/O DATED:16.03.2018)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 24.09.2012 PASSED IN MVC NO.16/2010 ON
THE FILE OF THE SENIOR CIVIL JDUGE, MACT,
KADUR, CHICKMAGALUR DISTRICT, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSTION.
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 24.09.2012 passed
by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 27.08.2009 the claimant was
proceeding on his motorcycle bearing registration
No.KA-18/Q-5718 as a pillion rider on Ajjampura road,
Birur Town, the rider of the said motorcycle while
going on the left side of the road observing the traffic
rules and regulations, when they reached near
Aladamara at Ajjampura road, at that time, another
motorcycle bearing registration No.KA-20/W-1964
being ridden by its rider at a high speed and in a rash
and negligent manner, came from backside and
dashed against the motorcycle 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 an Auto
rickshaw driver and was earning Rs.6,000/- 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 riding of
the offending vehicle by its rider.
4. On service of notice, the respondent Nos.1
and 3 appeared through their respective counsel and
respondent No.3 only 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. It was further pleaded that
the issuance of policy, if any, is subject to terms and
conditions of the policy. The age, occupation and
income, and injuries sustained by the claimant and
also the accident in the manner as alleged in the
petition are denied. It was further pleaded that since
the accident has occurred between the two vehicles,
there is a contributory negligence of both the riders.
It was further pleaded that the petition is bad for non-
joinder of necessary of parties. It was further pleaded
that the riders of the both motorcycles were not
holding valid and effective driving licences as on the
date of accident to drive the same. 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.2 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 issues and thereafter
recorded the evidence. The claimant himself was
examined as PW-1 and got exhibited 39 documents
namely Ex.P1 to Ex.P39. Dr.Amith M.Ravanagowdar
was examined as CW-1 and exhibited 2 documents
namely, Ex.C1 and Ex.C2 through court commissioner.
On behalf of the respondents, none of the witnesses
were examined but got exhibited 1 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 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
R1,89,256/- 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
raised the following contentions.
Firstly, at the time of accident, claimant was
aged about 24 years and he was an auto rickshaw
driver and earning Rs.6,000/- per month. The Tribunal
has considered only Rs.3,000/- per month, which is on
the lower side.
Secondly, he has examined the doctor, who has
assessed permanent disability of 55% and assessed
whole body disability at 18% to 20%. The Tribunal
has assessed disability at 15% to whole body, which is
on the lower side.
Thirdly, due to the accident, he has suffered
grievous injuries. He has taken treatment as inpatient
for a period of 9 days. He has also taken treatment as
outpatient, even after discharge from the hospital. He
has suffered lot of pain during the treatment and he
has to suffer with the disability throughout his life.
The compensation awarded by the Tribunal under the
heads of 'loss of amenities' and 'loss of income during
laid-up period' and other heads is 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 has claimed
that he was earning Rs.6,000/- per month, he has
produced only D.L, but he has not produced any other
documents to show that he was earning the said
amount. Considering the same, the Tribunal has
rightly assessed his income notionally.
Secondly, the injuries suffered by the claimant
are minor in nature and fractures are reunited. He
was inpatient for only 9 days. Taking into
consideration the materials available on record and
wound certificate Ex.P6, the Tribunal has rightly
assessed whole body disability at 15%. The over all
compensation awarded by the Tribunal is just and
reasonable. Hence, he sought for dismissal of the
appeal.
8. Heard the learned counsel for the parties
and perused the judgment and award of the Tribunal.
9. It is not in dispute that the claimant has
suffered injuries in a road traffic accident occurred on
27.08.2009 due to rash and negligent riding of the
rider of the motorcycle bearing Reg.No.KA-20/W-
1964. As per wound certificate Ex.P-6, he has suffered
the following injuries.
1. Crush injury of the right foot and
2. Lacerated injury on the right dorsum
of the foot bone of 2 and toe to ankle
joint,
CW-1, the doctor has deposed that the claimant
has suffered permanent disability of 55% and
disability of 18% to 20% to whole body. The Tribunal
considering the evidence of the doctor and materials
available on record and considering the injuries
suffered by the claimant has rightly assessed the
whole body disability at 15%.
Even though the claimant has claimed that he
was earning Rs.6,000/- per month, he has produced
only D.L as per Ex.P34, but he has not produced any
other documents to show that he was earning said
amount from the said avocation. Under the
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 2009, the
notional income has to be taken at Rs.5,000/- per
month. Accordingly, monthly income of the claimant is
taken as Rs.5,000/-.
The claimant is aged about 24 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.1,62,000/-
(Rs.5,000*12*18*15%) on account of 'loss of future
income'.
The nature of injuries suggest that the claimant
must have been under rest and treatment for a period
of 3 months. Therefore, the claimant is entitled for
compensation of Rs.15,000/- (Rs.5,000*3 months)
under the head 'loss of income during laid up period'
as against Rs.3,000/- awarded by the Tribunal.
Due to the accident, the claimant has suffered
the above said injuries. He has examined Dr.Amith
M.Ravanagowdar as CW.1. In his testimony, he has
stated that claimant has suffered permanent disability
of 55% and disability of 18% to 20 to whole body. He
was inpatient for a period of 9 days and he has also
taken treatment as outpatient even after discharge
from the hospital. Considering the evidence of the
doctor-CW.1 and considering the wound certificate
Ex.P34, I am of the opinion that the sum awarded by
the Tribunal under the head of 'loss of discomfort and
amenities of life' has to be enhanced from Rs.10,000/-
to Rs.30,000/-.
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 25,000 25,000
Medical expenses 10,556 10,556
Attendant and nutritious 1,500 1,500
food, etc.,
Conveyance charges 2,000 2,000
Future medical expenses 40,000 40,000
Loss of income during 3,000 15,000
laid up period
Loss of discomfort and 10,000 30,000
amenities to life
Loss of future income 97,200 1,62,000
Total 1,89,256 2,85,056
The claimant is entitled to a total compensation
of Rs.2,85,056/-.
The Insurance Company is directed to deposit
the entire 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 excluding interest
for the delayed period of 268 days in filing the appeal.
The Tribunal is directed to release entire
compensation amount to claimant after due
verification.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE
Mkm
