L Eshwar vs Arijith Mandal
2021 Latest Caselaw 1834 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 25TH DAY OF MARCH 2021

                        PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

         THE HON'BLE MR. JUSTICE M.G.S. KAMAL

             M.F.A. NO.4264 OF 2015 (MV-I)

BETWEEN:

L. ESHWAR
AGED ABOUT 38 YEARS
S/O LAKSHMINARAYANA SETTY
NO.367, 5TH CROSS, 2ND STAGE
7TH MAIN KUMARASWAMY LAYOUT
BANGALORE 560078.
                                            .... APPELLANT
(BY MR. PRABHUGOUD B. TUMBIGI, ADV., FOR
   SMT. RACHITA NANAIAH, ADV.,)

AND:

1.     ARIJITH MANDAL
       MAJOR IN AGE
       S/O HARADAN MANDAL
       NO.1184, 9TH A MAIN
       HBR LAYOUT, 4TH BLOCK
       BANGALORE-560043.

2.     HDFC ERGO GENERAL INSURANCE CO LTD
       NO.108/109/110/111
       NO.14, 1ST FLOOR, H M JEEVAN HOUSE
       CUNNINGHAM ROAD
       (INSURER OF CAR BEARING
       NO.KA 03 MP 7383)
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      REP BY REGIONAL MANAGER
      BANGALORE BRANCH.
                                              ... RESPONDENTS
(BY MR. H.S. LINGARAJ, ADV., FOR R2
R1 NOTICE D/W V/O DTD:27.8.2015)
                             ---

     THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 6.11.2014 PASSED
IN MVC NO.2892/2012 ON THE FILE OF THE XVI ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE 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) has

been filed by the claimant against the judgment dated

06.11.2014 passed by the Motor Accident Claims Tribunal

seeking enhancement of compensation.

2. Facts giving rise to the filing of the appeal briefly

stated are that on 10.01.2012 at about 9.45 p.m., the

injured claimant namely L.Eshwar was traveling on TVS bike

bearing registration No.KA-05 EX-9720 and when he reached

in front of Saravana Hotel on Hosur Lashkar road, a car

bearing registration No.KA-03 MP-7283 which was being

driven by its driver in a rash and negligent manner, dashed

against the vehicle of the claimant from behind. As a result

of the aforesaid accident, claimant fell down and sustained

acute traumatic brain injury.

3. The claimant thereupon filed a petition under

Section 166 of the Act claiming compensation on the ground

that the accident took place solely on account of rash and

negligent driving of the driver of the offending car. It was

further pleaded that on account of injuries, claimant was

hospitalized at the first instance for a period from 11.01.2012

to 30.01.2012 and later from 13.03.2012 to 26.03.2012 i.e.

for a period of 13 days. Thus, in all, claimant received

treatment for a period of 33 days. The claimant claimed

compensation to the extent of Rs.40,00,000/- along with

interest.

4. Respondent No.1 owner filed written statement in

which inter alia it was pleaded that the vehicle in question

was insured with the Insurance Company at the time of

accident and the driver had a valid driving licence. However,

it was pleaded that the accident took place on account of the

rash and negligent driving of the claimant. The respondent

No.2, in its statement of objection, inter alia admitted that

the vehicle in question namely car was insured. It was

further pleaded that the accident has taken place on account

of sole negligence of injured claimant and the compensation

granted by the Claims Tribunal is excessive and exorbitant.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant No.1 examined himself as PW-1,

Dr.Vineesh as PW-2 and Sharavana as PW-3 and got

exhibited documents namely Ex.P1 to Ex.P17. The

respondents neither examined any witness nor produced any

documentary evidence. 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 car by its driver. It was further held, that the

claimants are entitled to compensation to the tune of

Rs.4,39,000/- along with interest at the rate of 9% p.a. from

the date of petition till the date of realisation. In the

aforesaid factual background, this appeal has been filed.

6. Learned counsel for the claimant submitted that

there is evidence of PW-2 from which it is evident that the

claimant has sustained 40% of the neuro surgical disability.

However, the aforesaid disability was not considered by the

Tribunal. It is further submitted that the Claims Tribunal

ought to have awarded a sum of Rs.10,00,000/- on account

of loss of life expectancy and amount of compensation

awarded under the head of pain and suffering, nourishment,

conveyance and attendant charges and loss of amenities is

on the lower side.

7. On the other hand, learned counsel for the

Insurance Company submitted that there is no evidence on

record with regard to loss of income and the claimant has

continued in his employment. It is further submitted that

there is no medical evidence on record to show the loss of

life expectancy and the amount awarded under various heads

is just and proper and does not deserve any interference.

8. We have considered the submissions made by

learned counsel for the parties and have perused the record.

The claimant, at the time of accident, was aged 36 years and

was employed as Security Assistant in Foreigner Regional

Registration office, BU of Immigration, No.55, Indiranagar,

Bengaluru and was earning Rs.24,500/- p.m. It is not in

dispute that after the accident, the claimant has continued in

the employment and there is no evidence on record that on

account of injuries sustained by him in the accident, the

claimant has sustained any loss of income. The claimant has

sustained the following injuries in the accident:

1. Traumatic left hemispheric subdural hematoma with mass effect.

2. Post head injury behavioural changes

3. Left fronto temporo parietal craniectomy defect

4. Bipolar affective disorder.

9. PW-2 has stated in his evidence that the claimant

suffers mentally disability to the extent of 43%. It is

pertinent to mention that the claimant is employed as a

security guard and his work is of supervisory nature and

therefore, with the mental disability to the extent of 43%,

the claimant has continued in employment. Therefore, the

question of awarding any compensation under the head of

loss of future income does not arise. The claimant has been

awarded a sum of Rs.1,26,000/- on account of medical

expenses whereas he has been awarded a sum of

Rs.1,42,500/- on account of loss of income during the period

of treatment. However, taking into account the nature of

injuries, we find that the amount under the head of pain and

suffering is on the lower side and same is enhanced to

Rs.1,00,000/-. The claimant has remained inpatient for a

total period of 30 days. Therefore, the amount of

compensation awarded under the head of nourishment,

conveyance and attendant charges to the extent of

Rs.25,000/- each is on the lower side and the same is

enhanced to Rs.40,000/- each. Taking into account the fact

that the claimant has suffered mental disability to the extent

of 43%, the amount awarded under the head of loss of

amenities is on the lower side and same is enhanced to

Rs.1,00,000/-. PW-2 has not stated in his evidence that on

account of injuries sustained by the claimant in the accident,

there is any loss of life expectancy to the claimant. In the

absence of any evidence on record, the amount of

compensation under the aforesaid head cannot be enhanced.

Thus, in all, the claimant is held entitled to a further sum of

Rs.1,35,000/-. The aforesaid amount shall carry interest at

the rate of 6% from the date of filing of the petition till the

realization of the amount of compensation.

To the aforesaid extent, the judgment passed by the

Claims Tribunal is modified.

Accordingly, the appeal is partly allowed.

Sd/-

JUDGE

Sd/-

JUDGE

RV