Karnataka High Court

Sri. Chnadrakumar vs United India Insurance Company ... on 8 July, 2022

Bench: H T Prasad

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 8TH DAY OF JULY 2022

                        BEFORE

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

              MFA No.8053 OF 2019(MV)

BETWEEN:

SRI. CHNADRA KUMAR
S/O LATE LINGEGOWDA
AGED ABOUT 57 YEARS
RESIDING AT
INORA GOLLAHALLI VILLAGE
KANAKAPURA TOWN
RAMANAGAR DISTRICT.
                                         ...APPELLANT
(BY SRI.GIRIMALLAIAH, ADV.)

AND

1.     UNITED INDIA INSURANCE
       COMPANY LTD
       REGIONAL OFFICE, T P HUB
       KRISHI BHAVAN, 5TH & 6TH FLOOR
       HUDSON CIRCLE
       NRUPATHUNGA ROAD
       BENGALURU-560001
       BY ITS MANAGER.

2.     MR MAHADEV
       S/O CHIKKAMUDDU
       MAJOR
       KERE BEDI KRUPETE
                           2



     KANAKAPURA TALUK
     RAMANAGARA DISTRICT.
                                       ...RESPONDENTS

(BY SRI.K.NAGARAJAIAH, ADV. FOR R1:
NOTICE TO R2 IS DISPENSED WITH
V/O DATED: 08.07.2022)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
28.03.2019 PASSED IN MVC NO. 5397/2017 ON THE FILE
OF THE VII ADDITIONAL AND XXXII ACMM, MEMBER,
MACT-3, BENGALURU, 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 28.03.2019 passed

by Motor Accident Claims Tribunal in MVC

No.5397/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 26.06.2013 at about 08.00

P.M., the claimant was proceeding on his Motorcycle

bearing Registration No.KA-42-H-2747 along with his

friend Chikkiregowda, on the left side of the road

between Aralalu and T. Bekuppe, Kasaba Hobli,

Kanakapura Taluk, at that time, another Apache

Motorcycle Engine No.OE6 ED2213985 Chassis

No.MD634 KE67D2E79484 came at high speed from

opposite direction, in a rash and negligent manner and

dashed against the claimant's 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 riding of the offending vehicle by

its rider.

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. It was pleaded that the petition itself is false

and frivolous in the eye of law. 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.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, another witness was examined as

PW-2 and Dr.Prakashappa T.H. was examined as PW-

3 and got exhibited documents namely Ex.P1 to

Ex.P17. 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 riding of the

offending vehicle by its rider, as a result of which, the

claimant sustained injuries. The Tribunal further held

that the claimant is entitled to a compensation of

Rs.1,11,815/- 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 agriculture and sericulture and earning

Rs.12,000/- per month, but the Tribunal has taken the

notional income as merely as Rs.6,000/- per month.

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

evidence that the claimant has suffered disability of

10% to the whole body. But the Tribunal has erred in

taking the whole body disability at only 4%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 3 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.12,000/- 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 disability of

10% to the whole body but he has not a treated

doctor and he has examined the claimant after five

years from the date of the accident. Therefore, the

Tribunal considering the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 4%.

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 riding of the offending

vehicle by its rider.

The claimant claims that he was earning

Rs.12,000/- 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 2013, the notional income has to be

taken at Rs.8,000/- p.m.

As per wound certificate, the claimant has

sustained abrasion wound present over anterior

aspect of right leg and swelling present over distal

1/3rd of right leg. PW-3, the doctor has stated in his

evidence that the claimant has suffered disability of

10% to the whole body. 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 4%. The claimant is aged about 55 years at the

time of the accident and multiplier applicable to his

age group is '11'. Thus, the claimant is entitled for

compensation of Rs.42,240/- (Rs.8,000*12*11*4%)

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.24,000/- (Rs.8,000*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 3 days in the

hospital. Considering the same, I am inclined to

enhance the compensation awarded by the Tribunal

under the head of 'loss of amenities, conveyance,

nourishment and attendance charges' from

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

Rs.40,000/- 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 40,000 50,000 Medical expenses 8,135 8,135 Loss of Amenities, Food, 20,000 50,000 nourishment, conveyance and attendant charges Loss of income during 12,000 24,000 laid up period Loss of future income 31,680 42,240 Total 1,11,815 1,74,375

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.1,74,375/- against Rs.1,11,815/- 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