Karnataka High Court
Sri Vijayakumar vs Sri Nagesha on 8 November, 2021
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
M.F.A No.1565 OF 2014(MV)
BETWEEN:
SRI. VIJAYAKUMAR
S/O SHIVALINGEGOWDA
AGED ABOUT 20 YEARS
R/AT G.B.S.
MUDDAIAHNAHUNDI VILLAGE
HAMPAPURA HOBLI
H.D. KOTE TALUK
MYSORE DISTRICT - 571 114.
...APPELLANT
(BY SRI. SRINIVASA D.C., ADVOCATE)
AND:
1. SRI. NAGESHA
S/O NARANAGOWDA
AGED ABOUT 39 YEARS
R/AT G.B. SARAGUR GATE
MUDDAIAHNAHUNDI VILLAGE
HAMPAPURA HOBLI
H.D. KOTE TALUK
MYSORE DISTRICT - 571 114
(OWNER OF BIKE NO.KA-45-K-1341)
2. UNIVERSAL SOMPO GENERAL INSURANCE CO.LTD.,
BY ITS MANAGER
UNIT 401, 4TH FLOOR
2
SANGAM COMPLEX
127, ANDHERI-KURLA ROAD
ANDHERI(EAST), MUMBAI
MAHARASTRA STATE - 400 059
(INSURER OF BIKE NO.KA-45-K-1341)
ALSO SERVED THROUGH
UNIVERSAL SOMPO GENERAL INSURANCE CO LTD.,
BRANCH OFFICE
REPRESENTED BY ITS MANAGER
NO.363, I FLOOR
GURUKAR DEVANNA STREET
FORT MOHALLA (NEAR NALPAK HOTEL)
AGRAHARA, MYSORE - 570 001.
... RESPONDENTS
(BY SRI. H.N. KESHVA PRASHANTH, ADVOCATE FOR R2
R1 -SERVED-UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.
ACT AGAINST THE JUDGMENT AND AWARD DATED
17.08.2013 PASSED IN MVC NO.985/2012 ON THE FILE OF
THE III ADDITIONAL DISTRICT JUDGE AND MACT,
MYSORE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR HEARING, 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 17/08/2013 passed
by the Motor Accident Claims Tribunal, Mysore.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 21/02/2012 at 2.30 p.m.,
the claimant was proceeding in a Motor Cycle bearing
registration No.KA-45/K-1341 as a pillion rider from
Muddaiahnahundi to Kendagannaswamy Gaddige side,
when the said vehicle reached near Kempegowda's
land on Gaddige - Mysore road, the rider of the said
vehicle rode the same in a rash and negligent manner
at high speed and dashed to another motorcycle
bearing Reg.No.KA-45/L-8606. 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, seeking compensation. It was pleaded
that he 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, respondent Nos.1 and
2 appeared through their respective counsel and filed
separate objections.
Respondent No.1, in his objection statement
denied the age, occupation and income of the
claimant, and occurrence of the alleged accident and
medical expenses and disability as claimed by the
claimant. It was further pleaded that the accident
was not occurred due to rash and negligent riding of
the motorcycle bearing Reg.No.KA-45/K-1341, but it
was due to actionable negligence on the part of rider
of motorcycle bearing Reg.No.KA-45/L-8606. The
rider of the offending vehicle was having valid and
effective driving licence as on the date of accident and
the vehicle was insured with respondent No.2. It was
further pleaded that the petition is bad for non-joinder
of necessary parties. Hence, he sought for dismissal
of the petition.
Respondent No.2, in its objection statement
denied the averments made in the claim petition. The
liability, if any, is subject to terms and conditions of
the policy. It was further pleaded that riders of both
the vehicles were not holding valid and effective
driving licence as on the date of accident to drive the
same. It was further pleaded that the accident was
occurred solely on account of actionable negligence on
the part of rider of motorcycle bearing Reg.No.KA-
45/K-8606. Further denied the occurrence of the
accident, nature of injuries and disability etc. The
petition is bad for non-joinder of necessary parties.
The compensation claimed by the claimant is
excessive and exorbitant. 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-1 and Dr.Nagabhushan was
examined as PW-2 and got exhibited 16 documents
namely Ex.P1 to Ex.P16. On the other hand,
respondent No.1 was examined as RW.1 and got
exhibited 3 documents namely Ex.R1 to Ex.R3. 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.90,000/- 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. Sri Srinivasa D.C., learned counsel for the
claimant has contended that at the time of accident,
the claimant was aged about 18 years and was a
student, studying in Diploma. Due to the accident the
claimant has suffered grievous injuries and he has
taken treatment as inpatient for a period of 8 days.
Secondly, PW-2, the doctor has stated in his
evidence that the claimant has suffered disability to
the extent of 20% to the whole body and 60% to the
limb. But the Tribunal has not granted any
compensation towards 'loss of income due to
disability'.
Thirdly, due to the accident, the claimant has
sustained grievous injuries and he has suffered lot of
pain during treatment and he has to suffer with
unhappiness and disability as stated by the Doctor.
Considering the same, the compensation granted by
the Tribunal under the heads of 'pain and sufferings',
'loss of amenities' and other incidental expenses are
on lower side. Hence, he sought for enhancement of
compensation.
7. On the other hand, Sri H.N.Keshava
Prashanth, learned counsel for the Insurance
Company has contended that even though the Doctor-
PW.2 has stated that the claimant has suffered
disability to the extent of 20% to whole body and 60%
to the limb, but there is no loss of income and he has
continued in his studies. Even in the cross-
examination, the Doctor has admitted that he is not a
competent person to issue disability certificate.
Therefore, the Tribunal considering the same has
rightly disbelieved the evidence of the Doctor and has
rightly not granted any compensation towards 'loss of
income due to disability'.
Secondly, he has contended that the injuries
suffered by the claimants are simple in nature and he
has taken treatment as inpatient only for a period of 8
days. Therefore, considering the oral and
documentary evidence, the Tribunal has granted just
and reasonable compensation and it does not call for
interference. Hence, he sought dismissal of the
appeal.
8. Heard the learned counsel for the parties
and perused the judgment and award of the Tribunal
and original records.
9. It is not in dispute that the claimant has
sustained injuries in the road traffic accident occurred
on 21/02/2012 due to rash and negligent riding of the
offending vehicle by its rider. As per Wound
Certificate-Ex.P4, the claimant has sustained fracture
of right tibia.
The claimant has examined Dr.Nagabhushan as
PW-2, who in his evidence has stated that the
claimant has suffered disability of 20% to whole body
and 60% to the limb and in his cross-examination he
has admitted that there is absolutely no medical
records to give disability to the whole body and he has
also admitted that he is not a competent person to
give disability certificate. Therefore, taking into
consideration the deposition of the doctor, PW-2 and
considering the medical records produced by the
claimant, I am of the opinion that the whole body
disability can be assessed at 10%.
Due to the disability, the claimant has not
suffered any loss of income and he has continued in
his studies. But the claimant has to suffer with the
disability and unhappiness throughout his life. The
compensation awarded by the Tribunal towards
'disablement and loss of future income has to be
enhanced from Rs.15,000/- to Rs.40,000/-.
Due to the accident the claimant has suffered
above said injury and he was treated as inpatient for a
period of 8 days and he has suffered lot of pain during
treatment and he has to suffer with the disability and
unhappiness throughout his life. Considering the
evidence of the Doctor and considering the Wound
Certificate-Ex.P4, I am inclined to enhance the sum
awarded by the Tribunal under the heads of 'pain and
suffering' from Rs.30,000/- to Rs.50,000/- and 'loss of
amenities' from Rs.10,000/- to Rs.30,000/-.
The compensation awarded by the Tribunal
under other heads are 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 30,000 50,000
Attendant charges, 5,000 5,000
nourishment and
conveyance
Loss of income during 5,000 5,000
laid up period
Loss of amenities in the 10,000 30,000
life and discomfort
Medical expenses 25,000 25,000
Disablement and future 15,000 40,000
Loss of income
Total 90,000 1,55,000
The claimant is entitled to a total compensation
of Rs.1,55,000/-.
The Insurance Company is directed to deposit
the compensation amount along with interest at 6%
p.a. from the date of filing of the claim petition till the
date of realization, within a period of six 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.
The Tribunal is directed to release entire
compensation amount in favour of the claimant, on
proper identification.
Sd/-
JUDGE
MKM
