Suresha vs Kathib Ifthikar Ahammad
2022 Latest Caselaw 10312 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 5TH DAY OF JULY 2022

                        BEFORE

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

              MFA No.2391 OF 2019(MV)

BETWEEN:

SURESHA
S/O MALLAPOOJARI
AGED ABOUT 44 YEARS
R/O SUNNADMANE
SETTYGOLKOOPA VILLAGE
UNTOORKATTE, KAIMARA (P)
THIRTHAHALLI TALUK
SHIVAMOGGA DISTRICT - 760 075.
                                          ...APPELLANT
(BY SRI.GURUDEV PRASAD K T., ADV.)

AND:

1.     KATHIB IFTHIKAR AHAMMAD
       S/O KAHIB AMEER SAB
       AGED ABOUT 54 YEARS
       R/O RAYANA, BAILAKERE MALPE POST
       UDUPI TALUK AND DISTRICT.

2.     H.A. DINESHA
       S/O ANNE POOJARI
       AGED ABOUT 33 YEARS
       R/O GOVATANI, YEDUR POST
       HOSANAGARA TALUK
       SHIVAMOGGA DISTRICT.
                          2



3.   ORIENTAL INSURANCE CO. LTD.,
     BY ITS DIVISIONAL MANAGER
     DIVISIONAL OFFICE
     VISHNUPRAKASH
     II & IIIRD FLOOR
     COURT ROAD, UDUPI - 660 075.

4.   M.M. TRADING COMPANY
     FIRST MERCHANTS AND
     COMMISSION AGENTS
     1ST FLOOR, FEDERATION BUILDING
     MALPE, MALPE (P)
     UDUPI DISTRICT - 660 075.
                                      ...RESPONDENTS
(BY SRI.C.SHANKAR REDDY, ADV. FOR R3:
    NOTICE TO R1 & R2 IS SERVED BUT UNREPRESENTED
    NOTICE TO R4 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
10/10/2018, PASSED IN MVC NO.122/2013, ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JMFC., AND MACT,
THIRTHAHALLI, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

    THIS MFA COMING ON FOR ORDERS, 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 10.10.2018 passed

by the Senior Civil Judge and JMFC, Thirthahalli in

MVC No.122/2013.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 04.04.2011 the claimant

went to Thirthahalli in his motorcycle bearing

Registration No.KA-05-W-9373 and he was the pillion

rider and the same was driven by H.N.Santhosh.

When they were proceeding towards Thirthahalli

slowly on the left side of the road near Ganapati

Dasaiah Garden land at Untoorkatte Kaimara road at

about 11.00 A.M., the driver of the lorry bearing

Registration No.KA-20-B-7574 drove the same in a

rash and negligent manner 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

to 4 have appeared through counsel and only

respondent No.3 has 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-1 and Dr. Monappa Naik A was

examined as CW-1 and got exhibited documents

namely Ex.P1 to Ex.P31 and Ex.C1 to Ex.C3. On behalf

of the respondents, neither any witness was examined

nor any document was produced. 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.2,33,000/- 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 a agriculturist and also doing coolie work and

earning Rs.20,000/- per month, but the Tribunal has

taken the notional income as merely as Rs.6,500/- per

month.

Secondly, CW-1, the doctor has stated in his

evidence that the claimant has suffered disability of

34% to right upper limb and 17% to right lower limb.

But the Tribunal has erred in taking the whole body

disability at only 6%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 22 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 'pain and sufferings' and other heads are on

the lower side. The Tribunal has failed to grant any

compensation toward 'loss of amenities'. 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.20,000/- per month, he has not

produced any documents to establish his income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally as per the guidelines

issued by the Karnataka State Legal Services

Authority.

Secondly, CW-1, the doctor has stated in his

evidence that the claimant has suffered disability of

34% to right upper limb and 17% to right lower limb.

The Tribunal considering the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 6%.

Thirdly, 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. 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.20,000/- per month. He has not produced any

documents to prove his income. Therefore, the

Tribunal has rightly assessed the notional income of

the claimant as Rs.6,500/- as per the guidelines

issued by the Karnataka State Legal Services

Authority.

As per Wound Certificate, the claimant has

sustained fracture of right femur bone. CW-1, the

doctor has stated in his evidence that the claimant has

suffered disability of 34% to right upper limb and 17%

to right lower limb. Therefore, taking into

consideration the deposition of the doctor, CW-1 and

injuries mentioned in the Wound Certificate, I am of

the opinion that the whole body disability can be

assessed at 17%. 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.2,12,160/-

(Rs.6,500*12*16*17%) on account of 'loss of future

income'.

The claimant was treated as inpatient for more

than 22 days in the hospital and thereafter, has

received further treatment. Hence, I am inclined to

enhance the compensation awarded under the head of

'conveyance, nourishment and attendance charges'

from Rs.10,000/- to Rs.20,000/-.

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.40,000/- to Rs.50,000/- and the claimant is

entitled for the compensation of Rs.40,000/- towards

'loss of amenities'.

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 40,000 50,000 Medical expenses 3,954 3,954 Food, nourishment, 10,000 20,000 conveyance and attendant charges Loss of income during 39,000 39,000 laid up period Loss of amenities 0 40,000 Loss of future income 1,04,832 2,12,160 Future medical expenses 35,000 35,000 Total 2,32,786 4,00,114 The Tribunal has rounded of the award amount from Rs.2,32,786/- to Rs.2,33,000/-

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.4,00,114/- against Rs.2,33,000/- awarded by

the Tribunal.

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.

Sd/-

JUDGE

HA/-