Smt M L Geetha vs Sri Obalesh K
2021 Latest Caselaw 3791 Kant

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 10TH DAY OF NOVEMBER 2021

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

            MFA No.6977 OF 2016(MV)

BETWEEN:

SMT M L GEETHA
W/O. UMESH S
AGED ABOUT 35 YEARS
R/AT CHITGRAHALLI VILLAGE
HOLALKERE TALUK
CHITRADURGA DISTRICT.
                                       ...APPELLANT

(BY SRI. BASAVARAJ N PATIL, ADV. FOR
SRI.SIDDAPPA B M., ADV.)

AND

1.    SRI OBALESH K
      S/O. KRISHNAPPA
      AGED ABOUT 33 YEARS
      R/AT CHITRAHALLI VILLAGE
      HOLALKERE TALUK
      CHITRADURGA DISTRICT-577526.

2.    THE BRANCH MANAGER
      THE NEW INDIA ASSURANCE CO LTD,
      BRANCH OFFICE
      OPP: NANJUNDESHWARA PETROL BUNK
                            2



     P.B. ROAD
     CHITRADURGA.
                                       ...RESPONDENTS

(BY SRI.ASHOK N PATIL, ADV.FOR R2:
R1 SERVED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST    THE    JUDGMENT     AND     AWARD    DATED:
15.6.2016 PASSED IN MVC NO.316/2013 ON THE FILE
OF THE SENIOR CIVIL JUDE AND MACT, HOLALKERE,
PARTLY    ALLOWING      THE    CLAIM    PETITION    FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.


     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 15.6.2016 passed

by the Motor Accident Claims Tribunal, Holalkere in

MVC 316/2013.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 15.7.2013, the claimant was

proceeding on motorcycle bearing registration No.KA-

16-L-7244 as a pillion rider from Basaveshwara

Hospital, Chitradurga from their Village Chitrahalli, in

front of SJM College, Chitradurga, at that time,

another motorcycle bearing registration No.KA-16-U-

1406 being ridden by its rider at a high speed and in a

rash and negligent manner, dashed to the vehicle 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 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 driving of the offending vehicle by

its driver.

4. On service of notice, the respondent Nos.2

and 4 appeared through counsel and filed written

statement in which the averments made in the

petition were denied. The respondent Nos.1 and 3 did

not appear before the Tribunal inspite of service of

notice and were placed ex-parte.

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.B.S.Thippeswamy was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P14. On behalf of the

respondents, two witnesses were examined as RWs-1

and 2 got exhibited documents namely Ex.R1 to

Ex.R2. 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 vehicle 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.170,000/- 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. The learned counsel for the claimant has

raised the following contentions:

Firstly, even though the claimant claims that he

was doing agricultural work and earning Rs.100,000/-

per annum, but the Tribunal has taken the notional

income as merely as Rs.4,000/- per month.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

30% to 40%. But the Tribunal has erred in taking the

whole body disability at only 10%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 5 days. Even after discharge

from the hospital, he was not in a position to

discharge his regular work. He has suffered lot of pain

during treatment. Considering the same, the

compensation granted by the Tribunal under the

heads of 'loss of amenities', 'pain and sufferings' and

other heads are 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 following counter

contentions:

Firstly, even though the claimant claims that he

was earning Rs.100,000/- per annum, he has not

produced any documents to establish his income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

30% to 40%. The Tribunal considering the injuries

sustained by the claimant, has rightly assessed the

whole body disability at 10%.

Thirdly, considering the oral and documentary

evidence, the Tribunal has granted just and

reasonable compensation and it does not call for

interference. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent driving of the offending

vehicle by its driver.

The claimant claims that he was earning

Rs.100,000/- per annum. But he has not produced

any documents to prove his income. In the absence

of proof of income, the notional income has to be

assessed. As per the guidelines issued by the

Karnataka State Legal Services Authority, for the

accident taken place in the year 2013, the notional

income has to be taken at Rs.8,000/- p.m.

As per wound certificate, the claimant has

sustained lacerated wound over the right parietal,

abrasion over the right ear, abrasion over the right

upper ear lateral. PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

30% to 40%. Therefore, taking into consideration

the deposition of the doctor, PW-2 and injuries

mentioned in the wound certificate, the Tribunal has

rightly assessed the whole body disability at 10%.

The claimant is aged about 32 years at the

time of the accident and multiplier applicable to his

age group is '16'. Thus, the claimant is

entitled for compensation of Rs.153,600/-

(Rs.8,000*12*16*10%) on account of 'loss of future

income'.

The nature of injuries suggests that the claimant

must have been under rest and treatment for a period

of 2 months. Therefore, the claimant is entitled for

compensation of Rs.16,000/- (Rs.8,000*2 months)

under the head 'loss of income during laid up period'.

The claimant was treated as inpatient for more

than 5 days in the hospital and thereafter, has

received further treatment. Due to the accident, the

claimant has suffered grievous injuries and also

undergone surgery. He has suffered lot of pain during

treatment and he has to suffer with the disability

stated by the doctor throughout his life. Considering

the same, I am inclined to enhance the compensation

awarded by the Tribunal under the head of 'loss of

amenities' from Rs.15,000/- to Rs.20,000/-.

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 40,000 40,000 Food, nourishment, 5,000 5,000 conveyance and attendant charges Loss of income during 8,000 16,000 laid up period Loss of amenities 15,000 20,000 Loss of future income 76,800 153,600 Total 169,800 259,600 Rounded off 170,000 260,000

11. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.260,000/-.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 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 .

The Tribunal is directed to release the

compensation amount in favour of the claimant after

due verification.

Sd/-

JUDGE

DM