Karnataka High Court

Mr. Shivakumar Shiva vs Mr. Kumar on 7 July, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 7TH DAY OF JULY 2022

                        BEFORE

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

              MFA No.6719 OF 2019(MV)
BETWEEN:

MR. SHIVAKUMAR SHIVA
S/O HALAPPA
AGED ABOUT 22 YEARS
R/A ICHAGATTA VILLAGE
HOLALKERE TALUK
CHITRADURGA DISTRICT-577526
                                          ...APPELLANT
(BY SRI.CHANDRASHEKARAIAH B., ADV.)

AND:

1.     MR. KUMAR
       S/O CHIKKEGOWDA
       MAJOR IN AGE
       (AGE NOT KNOWN TO THE APPELLANT)
       R/A NO.286, IST CROSS
       MADAVARA, BENGALURU-650073.

2.     IFFCO-TOKIO GENERAL INSURANCE
       COMPANY LTD
       OFFICE AT NO.P-6(0)
       1ST MAIN, BRINDAVANA BUILDING
       GROUND FLOOR, PEENYA INDUSTRIAL AREA
       BENGALURU-560008.
                                      ...RESPONDENTS
(BY SRI.S.V. HEGDE MULKHAND, ADV. FOR R2:
    NOTICE TO R1 IS D/W V/O DTD: 09.03.2022)
                                2




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT    AGAINST    THE   JUDGMENT    AND    AWARD
DATED:01.04.2019 PASSED IN MVC NO. 1660/2018 ON
THE FILE OF THE JUDGE & XXIV ACMM & MACT,
BENGALURU [SCCH-9], 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 01.04.2019 passed

by the XXIV ACMM & MACT, Bengaluru in MVC

No.1660/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 20.10.2017 at about 00.30

A.M. midnight, when the claimant along with others

were traveling in an Auto Rickshaw bearing

Registration No.KA-05-AE-1743 from Begur to

Majestic near Mysuru Bank junction, the driver of the

said Auto Rickshaw drove the same in a rash an

negligent manner endangering to human life and

dashed against the Lorry bearing Registration No.KA-

01-AF-1295 when it crossing from the Avenue Road.

As a result of the aforesaid accident, the claimant

along with others including the driver of the Auto

Rickshaw 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.2

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.

The respondent No.1 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, another witness was examined as

PW-2 and Dr. Ramachandrappa was examined as PW-

3 and got exhibited documents namely Ex.P1 to

Ex.P22. 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 Auto 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.3,15,958/- 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 working as a Cook and Supplier and earning

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

notional income as merely as Rs.7,500/- per month.

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered permanent

residual physical disability of about 12.31% to whole

body. 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 19 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.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.

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered permanent

residual physical disability of about 12.31% to whole

body but he has not assessed any disability to the

limb. The Tribunal considering the evidence of the

doctor and the injuries sustained by the claimant, has

rightly assessed the whole body disability at 10%.

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.

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

Auto Rickshaw 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

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 compound fracture of cranial vault,

lacerated wound over scalp and fracture of ribs 3 to 8

left side, blunt injury. PW-3, the doctor has stated in

his evidence that the claimant has suffered permanent

residual physical disability of about 12.31% to whole

body. Therefore, taking into consideration the

deposition of the doctor, PW-3 and injuries mentioned

in the Wound Certificate, I am of the opinion that the

whole body disability can be assessed at 12.31%.

The claimant is aged about 25 years at the time

of the accident and multiplier applicable to

his age group is '18'. Thus, the claimant is entitled

for compensation of Rs.2,92,486/-

(Rs.11,000*12*18*12.31%) 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 was

treated as inpatient for more than 19 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.30,000/- to Rs.40,000/-.

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 50,000 50,000 Medical expenses 7,458 7,458 Food, nourishment, 19,000 19,000 conveyance and attendant charges Loss of income during 22,500 33,000 laid up period Loss of amenities 30,000 40,000 Loss of future income 1,62,000 2,92,486 Future medical expenses 25,000 25,000 Total 3,15,958 4,66,944

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.4,66,944/- against Rs.3,15,958/- 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