Karnataka High Court
Sri K Vijay vs The Manager on 25 November, 2021
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.6419 OF 2019(MV)
BETWEEN:
Sri. K. Vijay,
S/o Kuppan,
Aged about 33 years,
No.40, 4th Cross, 'A' Block,
Krishna Garden,
Rajarajeshwarinagar,
Bangalore-560 098. ... Appellant
(By Sri. Mahadeva Swamy, Advocate)
AND:
1. The Manager,
The New India Assurance Co. Ltd.,
T.P. Hub, Mahalakshmi Chambers,
M.G.Road, Bangalore-560 001.
2. M/s. Lithium Urban Technologies Pvt. Ltd.,
No.158, 1st Floor,
Seetharamapalya Village,
Mahadevapura, K.R. Puram,
Bangalore-560 048. ... Respondents
(By Sri. C.R. Ravishankar, Advocate for R1:
Service of Notice to R2 is D/W
V/O 25.11.2021)
2
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:21.01.2019 passed
in MVC No.4652/2016 on the file of the VII Additional
Small Causes Judge & XXXII ACMM, Member, Mact-3,
Court of Small Causes, Member, MACT-5, Bangalore, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
This MFA, coming on for orders, this day, this 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 21.01.2019 passed
by the Motor Accident Claims Tribunal, Bengaluru in
MVC No.4652/2016.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 07.06.2016 at about 10.30
p.m., the claimant was proceeding on his motorcycle
bearing registration No.KA-41/EF-8404 on
Rajarajeshwarinagar road. When he reached near
Pattanagere circle, at that time, a car bearing
registration No.KA-03/AC-7857 being driven by its
driver 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 No.1
appeared through counsel and filed written statement
in which the averments made in the petition were
denied. The age, avocation and income of the
claimant and the medical expenses are denied. It was
pleaded that the petition itself is false and frivolous in
the eye of law. It was further pleaded that the
accident was due to the rash and negligent riding of
the vehicle by the claimant himself. The driver of the
offending vehicle did not have valid driving licence as
on the date of the accident. The liability is subject to
terms and conditions of the policy. It was further
pleaded that the quantum of compensation claimed by
the claimant is exorbitant. Hence, he sought for
dismissal of the petition.
The respondent No.2 did not appear before the
Tribunal inspite of service of notice and was 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.Ramesh was examined as
PW-2 and one more witness as PW-3 and got
exhibited documents namely Ex.P1 to Ex.P21. On
behalf of the respondents, one witness was examined
as RW-1 and got exhibited documents namely Ex.R1
to Ex.R9. 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.4,28,500/- along with interest at the rate of 8%
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, due to the accident the claimant has
suffered grievous injuries, he has examined the doctor
as PW-2, who has assessed the physical disability of
55% of right lower limb and 27.5% to whole body.
Even though he has continued in service, due to
disability he may lose his job. The Tribunal has failed
to grant any compensation for 'loss of future income
due to disability'.
Secondly, due to accident he suffered grievous
injuries, he was inpatient for a period of 28 days, he
has suffered lot of pain during treatment and he has
to suffer the disability and unhappiness throughout his
life. 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 the following
contentions:
Firstly, even though the doctor has assessed the
whole body disability at 27.5%, it is an admitted fact
that the claimant has continued in the job. Even
today he is working in the same company. Since
there is no loss of income due to disability the Tribunal
has rightly not granted any compensation under the
head 'loss of future income due to disability'.
Secondly, considering the injuries suffered by
the claimant the overall compensation awarded by the
Tribunal is just and reasonable.
Thirdly, in view of the Division Bench decision of
this Court in the case of MS.JOYEETA BOSE AND
OTHERS vs. VENKATESHAN.V AND OTHERS (MFA
5896/2018 and connected matters disposed of
on 24.8.2020), the interest granted by the Tribunal
at the rate of 8% p.a. is on the higher side. Hence, he
sought for dismissal of the appeal.
8. Heard the learned counsel for the parties.
Perused the judgment and award.
9. It is not in dispute that the claimant
suffered injuries in the accident occurred due to rash
and negligent driving of the offending vehicle by its
driver.
Due to the accident the claimant suffered
comminuted fracture lower shaft of femur right
involving articular surface with open reduction and
internal fixation right distal femur with implant failure
and fracture shaft of tibia and fibula with medial
malleous recurred. He has examined the doctor as
PW-2 who in his deposition has stated that the
claimant has suffered disability of 55% to right lower
limb and 27.5% whole body disability. In the
evidence, the claimant has admitted that he has
continued in the same job and till today he is working
in the same company. Since there is no loss of
income due to disability the Tribunal has rightly not
awarded any compensation under the said head.
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 'pain and sufferings' from
Rs.50,000/- to Rs.1,00,000/- and 'loss of amenities'
from Rs.50,000/- to Rs.1,00,000/-.
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 50,000 1,00,000
Medical expenses 2,62,900 2,62,900
Loss of income during 50,648 50,648
laid up period
Loss of amenities 50,000 1,00,000
Future medical expenses 15,000 15,000
Total 4,28,548 5,28,548
The claimant is entitled to a total compensation
of Rs.5,28,548/-.
The Insurance Company is directed to deposit
the compensation amount along with interest 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 excluding interest
for the compensation awarded under the head of
'future medical expenses'. The enhanced
compensation carries interest @ 6% p.a.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE
Cm/-
