Harish G vs K S Venkatesh
2022 Latest Caselaw 10556 Kant

                          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. 6955 OF 2019(MV)

BETWEEN:
HARISH G
S/O D GUDIYAIAH
AGED ABOUT 33 YEARS
T GUDDENHALLI VILLAGE
PALYA HOBLI, ALUR TALUK
HASSAN DISTRICT.
                                         ...APPELLANT
(BY SRI.BYRA REDDY, ADV. FOR
    SMT.KAVITHA H C., ADV.)

AND:

1.     K S VENKATESH
       S/O SANNYALLAIAH
       KOWSHIKA BARE VILLAGE
       SHANTHIGRAMA HOBLI
       HASSAN TALUK & DISTRICT.

2.     THE MANAGER
       RELIANCE GENERAL INSURANCE
       COMPANY LTD.,
       1ST FLOOR, KRUTIKA ARCADE
       N R CIRCLE, HOLENARASIPURA ROAD
       HASSAN-573201.
                                      ...RESPONDENTS
(BY SRI.ASHOK N PATIL, ADV. FOR R2:
    NOTICE TO R1 IS D/W V/O DTD: 04.07.2022)
                               2




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
03.04.2019 PASSED IN MVC NO.952/2017 ON THE FILE OF
THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
ADDITIONAL MACT, HASSAN, 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 03.04.2019 passed

by the Motor Accident Claims Tribunal in MVC

No.952/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 16.12.2016 at about 11.30

P.M., the claimant was proceeding on Bike bearing

Registration No.KA-13-L-8713 as a pillion rider along

with one Papaegowda. When they reached near

Kittanegadi, in front of Namratha Hitek Narsery, on

Hassan Holenarasipura Road, the driver of the Bolero

Pickup vehicle bearing Registration No.KA-13-B-4885

drove the same in a rash and negligent manner and

dashed against the Bike. 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 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-1 and Dr. K. T. Ramesh was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P13 and Ex.C-1 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.3,07,000/- 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 doing coolie work and agricultural work and

earning Rs.25,000/- per month, but the Tribunal has

taken the notional income as merely as Rs.9,000/- per

month.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered permanent

disability of 40% in respect of right leg and thigh. But

the Tribunal has erred in taking the whole body

disability at only 13%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 33 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 under the head of '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.25,000/- 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-2, the doctor has stated in his

evidence that the claimant has suffered permanent

disability of 40% to right leg and thigh. The Tribunal

considering the injuries sustained by the claimant, has

rightly assessed the whole body disability at 13%.

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.25,000/- 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 2016, the notional income has to be taken

at Rs.9,500/- p.m.

As per wound certificate, the claimant has

sustained two simple injuries. PW-2, the doctor has

stated in his evidence that the claimant has suffered

permanent disability of 40% to right leg and thigh.

The Tribunal while assessing the whole body, has

considered 1/3rd of the limb disability and has

assessed the disability of 13% to the whole body.

Therefore, the whole body disability assessed by the

Tribunal 13% is just and reasonable. The claimant is

aged about 35 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.2,37,120/- (Rs.9,500*12*16*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.28,500/- (Rs.9,500*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 33 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. Therefore, the claimant is

entitled for the compensation under the head of 'loss

of amenities' for 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 40,000 Medical expenses 5,848 5,848 Food, nourishment, 18,500 18,500 conveyance and attendant charges Loss of income during 18,000 28,500 laid up period Loss of amenities 0 50,000 Loss of future income 2,24,640 2,37,120 Total 3,06,988 3,79,968 * The Tribunal has rounded of the award amount from Rs.3,06,988/- to Rs.3,07,000/-

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.3,79,968/- against Rs.3,07,000/- 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/-