Karnataka High Court

Nagarajappa vs Fathima B on 1 July, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 1ST DAY OF JULY 2022

                        BEFORE

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

               MFA No.754 OF 2019(MV)

BETWEEN:

NAGARAJAPPA
S/O SANNA THIMMA BHOVI
AGED ABOUT 61 YEARS
R/O KALLIHATTI KUBUBARAHALLI
CHITRADURGA TALUK
AND DISTRICT-577 001
                                         ...APPELLANT
(BY SMT : SARITHA KULKARNI, ADV.)

AND:

1.     FATHIMA B
       W/O BABU G
       R/O 345 9TH CROSS
       DODDA KENCHAPPA LAYOUT
       YELUMANDYAMMA BLOCK
       SSSS ROAD,C N HALLI R T NAGAR
       BANGALORE-560032.

2.     THE MANAGER
       BHARATHI AXA GENERAL
       INSURANCE CO LTD.,
       1ST FLOOR FERNS LEON SURVEY
       NO.86 DODDANEKUNDI VILLAGE
       K R PURAM HOBLI
       BANGALORE-560037.
                           2



                                       ...RESPONDENTS
(BY SRI.B.PRADEEP, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED:28.06.2022)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT    AGAINST    THE   JUDGMENT     AND   AWARD
DATED:24.11.2018 PASSED IN MVC NO.313/2018 ON THE
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MEMBER,
MACT-IV, DAVANGERE, PARTLY ALLOWING THE CLAIM
PETITION   FOR     COMPENSATION    AND    SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSIONS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                    JUDGMENT

This appeal under Section 173(1) of Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act') has been filed by the claimant being aggrieved

by the judgment and decree dated 24.11.2018 passed

by the Principal Senior Civil Judge, Member, MACT-IV,

Davangere in MVC No.313/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 27.12.2017, the claimant as

a pillion rider was proceeding on the Hero Honda

Passion Motor Cycle bearing Registration No.KA-17/V-

8251 from Davanagere to Chitradurga, the said

vehicle was driven by the rider in a moderate speed

on left side of NH4 road, when it reached near

Anagodu NH4 road, at about 11.30 A.M., the driver of

the Maruthi Alto Car bearing Registration No.KA-

01/MG-8678 drove the same in a rash and negligent

manner endangering the human life with great speed

and dashed against the motorcycle. 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.1

and 2 being the owner and the insurer of the

offending vehicle have 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 further pleaded that the quantum of

compensation claimed by the claimant is exorbitant.

Hence, he sought for dismissal of the 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-2 and Dr. D. Maheshwarappa was

examined as PW-3 and got exhibited documents

namely Ex.P1 to Ex.P16. On behalf of the

respondents, no witness was examined but 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 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.1,65,280/- 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, even though the claimant claims that he

was doing mason work and earning Rs.15,000/- per

month, but the Tribunal has taken the notional income

as merely as Rs.9,000/- per month.

Secondly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 13 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, she 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.15,000/- per month, he has not

produced any documents to establish his income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Secondly, the injuries suffered by the claimant

are minor in nature. Considering the injuries sustained

by the claimant and considering the age and avocation

of the claimant, the overall compensation awarded by

the Tribunal is just and reasonable compensation.

Lastly, in view of judgment of the Division Bench

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 claimants are entitled for 6% interest

but the Tribunal has granted 8% interest is on the

higher side. 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.15,000/- per month. He has not produced any

documents to prove his income. Therefore, the

notional income has to be assessed as per the

guidelines issued by the Karnataka State Legal

Services Authority. Since the accident has taken

place in the year 2017, the notional income has to be

taken at Rs.11,000/- p.m.

As per wound certificate, the claimant has

sustained abrasion of 2 cms. on right hand, lacerated

wound of 6X6 cms. present on right leg below knee.

PW-3, the doctor has stated in his evidence that the

claimant has suffered disability of 40% to particular

limb. Therefore, taking into consideration the

deposition of the doctor, PW-3 and injuries mentioned

in the wound certificate, the Tribunal has rightly taken

the whole body disability at 13%. The claimant is

aged about 63 years at the time of the accident and

multiplier applicable to his age group is '7'. Thus,

the claimant is entitled for compensation of

Rs.1,20,120/- (Rs.11,000*12*7*13%) 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 03 months. Therefore, the claimant is entitled for

compensation of Rs.33,000/- (Rs.11,000*3 months)

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

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He

claimant was treated as inpatient for more than 13

days in the hospital. 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.10,000/- to Rs.40,000/- and 'pain

and sufferings' from Rs.20,000/- to Rs.50,000/-.

Considering the nature of injuries, 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 20,000 50,000 Food, nourishment, 10,000 10,000 conveyance and attendant charges Loss of income during 27,000 33,000 laid up period Loss of amenities 10,000 40,000 Loss of future income 98,280 1,20,120 Total 1,65,280 2,53,120

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.2,53,120/- as against Rs.1,65,280/- awarded

by the Tribunal.

In view of judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE', the

enhanced compensation shall carry interest at 6% per

annum.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 8%

p.a. (the enhanced compensation shall carry interest