Harish M S vs Balaji B
2021 Latest Caselaw 2528 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 1ST DAY OF JULY 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                             AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

              M.F.A. NO.3428 OF 2020 (MV-I)
BETWEEN:

HARISH M S
S/O SHIVARAJU M B
AGED ABOUT 34 YEARS
R/AT MODURU VILLAGE
HUNSUR TALUK
MYSURU DISTRICT.
                                              ... APPELLANT
(BY SRI SYED ABDUL SABOOR, ADVOCATE)

AND:

1.     BALAJI B
       S/O ARUNACHALAM C
       AGED ABOUT 44 YEARS
       74/A, NEHRU STREET
       VEERAPANCHATHIRAM
       ERODE, TAMIL NADU.

2.     SRIRAM GENERAL INSURANCE CO. LTD.,
       V.C.T.V. MAIN ROAD, SATHYA ROAD
       ERODE, TAMIL NADU.
                                            ...RESPONDENTS
(BY SRI B. PRADEEP, ADVOCATE FOR R-2;
    NOTICE TO R-1 IS D/W)
                           ---
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     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 15.04.2019 PASSED
IN MVC NO.330/2016 ON THE FILE OF THE JUDGE, PRL. SMALL
CAUSES AND SENIOR CIVIL JUDGE, MYSURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY,
HEMANT     CHANDANGOUDAR      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) is

filed by the claimant seeking enhancement of the amount of

compensation, against the judgment and award dated

15.04.2019 in MVC.No.330/2016 passed by the Prl. Judge,

Court of Small Causes, Motor Accident Claims Tribunal,

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

2. Facts leading to filing of this appeal briefly stated

are that on 30.01.2016 at about 11.30 a.m., the claimant,

when he was riding his motor cycle along with his two minor

daughters proceeding towards Hunsur very slowly and

cautiously by following all the traffic rules, at that time, the

respondent No.1 - driver of the Maxi cab came with high

speed in a rash and negligent manner and dashed against

the motor cycle of the claimant. Due to the accident, the

claimant along with his daughters fell down and sustained

grievous injuries.

3. The claimant thereupon filed a petition under

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

claimant after the accident, he was shifted to Government

hospital, Hunsur and then shifted to Subhodaya hospital and

thereafter shifted to BGS Apollo Hospital, Mysuru wherein he

took treatment as an inpatient and undergone surgery. It is

also pleaded that the claimant has spent more than

Rs.10,00,000/- towards medical expenses. It was also

claimed that the claimant is a mason by avocation and also

doing agricultural work and was earning Rs.15,000/- per

month. Due to the impact of the accident, the claimant is

unable to carry on with the work as before. It was also

pleaded that the accident took place on account of the rash

and negligent driving by the driver of the Maxi cab. The

claimant claimed compensation to the tune of Rs.59,30,000/-

along with interest.

4. The respondent - Insurance company appeared

through their counsel and filed written statement, inter alia,

in which, the mode and manner of the accident was denied.

The age, occupation, income and injuries sustained by the

claimant were denied. It is further submitted that the

offending vehicle was insured with its company. It was also

pleaded that the driver of the offending vehicle did not

possess valid and effective driving license as on the date of

accident. 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

Tribunal framed the issues and thereafter recorded the

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

himself as PW-1 and two doctors were examined as P.W.4

and P.W.5 and got exhibited documents namely Ex.P1 to

Ex.P30. The respondents neither examined any witness nor

got exhibited any document.

6. The Tribunal, by the impugned judgment, inter

alia, held that the accident took place on account of rash and

negligent driving of the Maxi cab 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.10,53,000/- along with interest at the rate of 6% p.a.

Being aggrieved, this appeal is filed by the claimant seeking

enhancement of the amount of compensation.

7. Learned counsel for the claimant submitted that

the claimant was aged about 30 years at the time of the

accident. The Tribunal has grossly erred in assessing the

income of the claimant as Rs.7,500/- per month and in any

case, the same ought to have been taken as per the

guidelines framed by the Karnataka State Legal Services

Authority. It is also submitted that the Tribunal erred in

assessing the functional disability at 15% instead of 44%. It

is also urged that the amount of compensation awarded

under all the other heads is on the lower side and deserves

to be enhanced suitably.

8. On the other hand, learned counsel for the

Insurance Company submitted that no evidence has been

adduced by the claimant to prove his income before the

Tribunal and that the Tribunal has rightly taken the income of

the deceased notionally at Rs.7,500/- per month and

assessed the disability at 15%. 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.

9. 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.

10. Admittedly, the claimant has not produced any

evidence with regard to his income. Therefore, the notional

income of the claimant is to be assessed as per the

guidelines issued by the Karnataka Legal Services Authority.

Since the accident is of the year 2016, notional income

comes to Rs.9,500/- per month. The doctors who were

examined as PWs.4 and 5 have stated that the claimant has

suffered the disability at 44% with respect to his limb. The

Tribunal has rightly assessed the functional disability at 15%

to the whole body. In the absence of contrary evidence, the

disability assessed by the Tribunal cannot be faulted with.

Hence, the claimant is entitled for compensation of

Rs.2,90,700/- (Rs.9,500 x 12 x 17 x 15%).

11. The compensation awarded under the other

conventional heads is just and proper and the same is

maintained.

12. Thus the claimant is entitled for total compensation

of Rs.11,13,700/-. The enhanced compensation Rs.61,200/-

shall carry interest at the rate of 6% p.a. 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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