Sri. Vasu vs Sri. Viraktha Vadeyar
2021 Latest Caselaw 2013 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 28TH DAY OF MAY 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                            AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

               M.F.A. NO.581 OF 2020 (MV-I)
BETWEEN:

SRI. VASU
S/O SOMEGOWDA
AGED ABOUT 43 YEARS
RESIDING AT HOSAKOTE VILLAGE
YELAWALA HOBLI
MYSURU TALUK AND DISTRICT-571105.

REPRESENTED BY GUARDIAN
SMT. PRAMILA
W/O VASU
AGED ABOUT 38 YEARS
RESIDING AT HOSAKOTE VILLAGE
YELAWALA HOBLI
MYSURU TALUK AND DISTRICT-571105.
                                              ... APPELLANT
(BY SRI. SRINIVASA D.C. ADV.,)

AND:

1.     SRI. VIRAKTHA VADEYAR
       S/O NANJEDEVARU
       AGED ABOUT 50 YEARS
       KADAGAPURA MATA VILLAGE
       GUNDALPETE TALUK
       CHAMARAJANAGAR DISTRICT-570
       (OWNER AND DRIVER OF BIKE NO.KA-09-EQ-5346).
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2.    UNITED INDIA INSURANCE CO. LTD
      BY ITS MANAGER
      DIVISIONAL OFFICE II, NO.2912
      SRI. VENKATESHWARA PLAZA
      I MAIN ROAD, SARASWATHIPURA
      MYSORE-577001
      (INSURER OF LORRY NO.KA-02-C-5088).
                                      ... RESPONDENTS
(R1 & R2 SERVED)
                             ---
      THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DT:26.11.2019 PASSED IN
MVC NO.1064/2016 ON THE FILE OF THE JUDGE, PRL. SMALL
CAUSES AND SENIOR CIVIL JUDGE, MACT, MYSURU, 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 seeking enhancement of the

amount of compensation, against the judgment dated

26.11.2019 passed by the Motor Accident Claims Tribunal

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

2. Facts leading to filing of this appeal briefly stated

are that on 08.07.2016, the claimant - Vasu was proceeding

as a pillion rider on motor cycle bearing registration No.KA-

09-HE-2174. When he reached near Malegalada Maramma

Temple, Srirampura Ring Road, another motorcycle bearing

registration No.KA-09-EQ-5346 which was being driven by its

rider in rash and negligent manner, dashed against the motor

cycle in which the claimant was traveling. As a result of the

aforesaid accident, the claimant sustained grievous injuries

and was immediately given first aid at KR Hospital and

thereafter was shifted to Brindavana Hospital, Mysore for

further treatment where the claimant was an inpatient from

08.07.2016 to 16.08.2016 and again from 17.09.2016 to

21.09.2016.

3. The claimant thereupon filed a petition under

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

claimant was admitted to Brindavana Hospital, Mysore where

he took treatment as inpatient for a period of 42 days. It is

also pleaded that the claimant has spent more than

Rs.15,00,000/- towards medical expenses. It was also

claimed that the claimant was earning a daily wage of

Rs.750/- from working as an agriculturist and coolie and 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 of the rider of the offending motor cycle. The claimant

claimed compensation to the tune of Rs.47,00,000/- along

with interest.

4. The respondent insurance company appeared

through their counsel and filed separate 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 was denied. 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

pleaded that the claim petition is bad for non joinder of

necessary parties. 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

Claims Tribunal framed the issues and thereafter recorded

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

examined Prameela as PW-1, Dr.Anil Sangli (PW2) and got

exhibited documents namely Ex.P1 to Ex.P28. The

respondent insurance company examined Shalini KC as RW1

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 riding of

the offending motor cycle 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.22,00,000/-

along with interest at the rate of 6% p.a. Being aggrieved,

this appeal has been filed by the claimant seeking

enhancement of the amount of compensation.

6. Learned counsel for the claimant submitted that

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 further

submitted that the Tribunal erred in assessing the permanent

disability of the claimant at 50% when Dr.Anil Sangli (PW2)

has clearly stated that the disability of the claimant is 90% to

the whole body. It is also submitted that the Tribunal erred in

not awarding compensation under the head 'Future Medical

Expenses'. It is also urged that the amount of compensation

awarded under all the other heads are on the lower side and

deserve to be enhanced suitably.

7. 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.

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 of the claimant is assessed at

Rs.9,500/- per month. Ex.P6 Wound Certificate discloses that

the claimant has sustained the following injuries:-

a. Bleeding lacerated injury measuring 5x2xbone depth to the right peuetoccipilial region of the head b. lacerated injury measuring 4x2x2 cms over right frontal region of the head with underlying swelling c. Lacerated injury measuring 3x2x2 cms with surrounding swelling over right forehead region d. Blood clots noted in both nostrils and right ear

All of the aforesaid injuries are grievous in nature. PW1

Pramila has stated in her evidence that the claimant has

undergone multiple surgeries on different occasions due to

the injuries the claimant has sustained in the accident and

that the claimant continues to take regular medical treatment

as an outpatient. The aforesaid witness further states that

the claimant is unable to speak and has become completely

disabled to perform any kind of day to day activities.

8. Dr.Anil Sangli (PW2) has stated in his evidence that

the claimant has sustained grievous head injuries and has

undergone multiple surgical procedures on different

occasions and continues to suffer from multiple recurrent

seizures. He has further stated that the claimant cannot

speak spontaneously and is completely dependant on the

support of family members for almost all activities of daily

life. The aforesaid witness has also stated that the claimant is

unable to walk without support and has assessed the

permanent physical and mental disability to the whole body

at 90%. Nothing to the contrary has been elicited in his

cross-examination. The Tribunal has assessed the disability

of the claimant at 50% to the whole body without assigning

reasons for discarding the evidence of Dr.Anil Sangli (PW2).

Therefore, we assess the disability of the claimant at 90% to

the whole body on the basis of the evidence of Dr.Anil Sangli

(PW2) as well as Pramila (PW1). Therefore, the claimant is

entitled to Rs.16,41,600/- (Rs.9,500 x 12x 16x 90%) under

the head 'loss of earning capacity'.

9. Considering the fact the claimant has suffered 4

injuries to the head which are grevious in nature and the fact

the claimant has remained an inpatient for a period of 42

days from 08.07.2016 to 16.08.2016 and again from

17.09.2016 to 21.09.2016, the claimant would have been

under treatment atleast for 4 months. Therefore, the

claimant is entitled to Rs.38,000/- (9,500x4) under the head

'loss of income during laid up period. Taking into account the

fact that the claimant has suffered 4 head injuries which are

grievous in nature and that the claimant was an inpatient for

42 days, we deem it appropriate to enhance the

compensation under the heads 'Pain and Suffering' and 'Loss

of amenities' by an additional sum of Rs.10,000/- each in

addition to the sum already awarded by the Tribunal.

10. The amount of compensation awarded under the

other heads is maintained as the same is just and

reasonable. As far as the contention of the learned counsel

that the Tribunal erred in not awarding compensation

towards future medical expenses, the same is liable to be

rejected as neither the claimant in the pleadings nor

Dr.Anil Sangli (PW2) in his evidence have stated about the

requirement of any future medical treatment or its expenses.

Therefore, the Tribunal has rightly not awarded

compensation under the head 'Future Medical Expenses'.

Thus, the claimant is held entitled to a total compensation of

Rs.31,52,600/-. Needless to state that the enhanced amount

of compensation viz., Rs.9,53,600/- shall carry interest at

the rate of 6% per annum 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 partly allowed.

Sd/-

JUDGE

Sd/-

JUDGE ss