Sri Girishkumar G S vs Nagaraj Acharya @ Nagaraja
2022 Latest Caselaw 10613 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 11TH DAY OF JULY 2022

                     BEFORE

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

           MFA No.651 OF 2021(MV)

BETWEEN

SRI. GIRISHKUMAR G S
S/O G SHIVARUDRAPPA
AGED ABOUT 34 YEARS
R/O ECHAGATTA VILLAGE
HOLALKERE TALUK
NOW R/O C/O G S SANTHOSH
VEMANA NAGAR, 2ND CROSS
CHITRADURGA-577501
                                    ...APPELLANT

(BY SRI. AVINASH C., ADV. FOR
SRI.MARUTHI G B., ADV.)

AND

1.    NAGARAJ ACHARYA @ NAGARAJA
      S/O SHANKAR ACHARYA
      MAJOR,
      R/O H NO 1-24,
      HILIYANA VILLAGE AND POST
      UDUPI TALUK AND DISTRICT 574118.

2.    THE BRANCH MANAGER
      UNITED INDIA INSURANCE CO LTD.
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     BRANCH OFFICE
     MICRO OFFICE
     R M BUILDING,
     NEAR OLD POST OFFICE
     CHITRADURGA CITY- 577501.

                                    ...RESPONDENTS


(BY SRI.RAVISH BENNI, ADV. FOR R2:
NOTICE TO R1 IS SERVED AND UNREPRESENTED)

    THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:30.10.2019, PASSED IN MVC NO.146/2019,
ON THE FILE OF THE I-ADDITIONAL SENIOR CIVIL
JUDGE AND MEMBER, MACT-IV, CHITRADURGA,
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 dated 30.10.2019 passed by MACT,

Chitradurga in MVC 146/2019.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 15.5.2018 when the

claimant along with another was proceeding on

motorcycle bearing registration No.KA-16-K-7904 as

a pillion rider near Chitrahalli Gate on NH-13 Road,

near speed braker-humps, Holalkere, at that time, car

bearing registration No.KA-51-MC-5331 being driven

by its driver at a high speed and in a rash and

negligent manner, dashed to the vehicle of the

claimant. 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 No.2

appeared through counsel and filed written statement

in which the averments made in the petition were

denied.

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 and Dr.Gururaj Meravanigi was

examined as PW-3 and got exhibited documents

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

respondents, no witness was examined and got

exhibited documents 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.261,356/- along with interest

at the rate of 7% p.a. and directed the Insurance

Company to deposit the compensation amount along

with interest. Being aggrieved, the present appeal has

been filed.

6. The learned counsel for the claimant has

raised the following contentions:

Firstly, the claimant claims that he was doing

agricultural work. Even as per the guidelines issued by

the Karnataka State Legal Services Authority, for the

accident taken place in the year 2018, the notional

income has been taken at Rs.12,500/- p.m. But the

Tribunal has taken the notional income of the claimant

as merely as Rs.8,000/- per month.

Secondly, the claimant has examined the doctor

as PW-3. The doctor in his evidence has stated that

the claimant has suffered permanent disability of

25.5%. But the Tribunal has taken the whole body

disability at 8%, which is on the lower side.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 6 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 awarded by the Tribunal under the

heads of 'loss of amenities', 'pain and sufferings' and

other incidental expenses 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, considering the age and avocation of the

claimant, the Tribunal has rightly assessed the income

of the claimant notionally at Rs.8,000/- p.m.

Secondly, the doctor in his evidence has stated

that the claimant has suffered disability of 25.5%. The

Tribunal considering the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 8%.

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 and it does not call for

interference.

Fourthly, the interest awarded by the Tribunal at

7% p.a. on the compensation amount is on the higher

side. Hence, he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award of the Tribunal.

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 doing

agricultural work. He has not produced any documents

to prove his income. Therefore, in the absence of

proof of income, notional income has to be assessed.

As per the guidelines issued by the Karnataka State

Legal Services Authority, for the accident taken place

in the year 2018, the notional income has to be taken

at Rs.12,500/- p.m.

As per wound certificate, the claimant has

sustained left shoulder swelling and tenderness,

moments restriction, left ankle swelling and

tenderness, left medial malleoli fracture. The doctor in

his evidence has stated that the claimant has suffered

permanent disability of 25.5%. Therefore, taking into

consideration the deposition of the doctor and injuries

mentioned in the wound certificate, the Tribunal has

rightly taken the whole body disability at 8%. The

claimant is aged about 31 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.192,000/- (Rs.12,500*12*16*8%) 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 2 months. Therefore, the claimant is entitled for

compensation of Rs.25,000/- (Rs.12,000*2 months)

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

The claimant was treated as inpatient for more

than 6 days in the hospital and thereafter, has

received further treatment. 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 'loss of

amenities' from Rs.15,000/- to Rs.25,000/- and under

the head of 'pain and sufferings' from Rs.15,000/- to

Rs.30,000/-.

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 15,000 30,000 Medical expenses 52,476 52,476 Food, nourishment, 30,000 30,000 conveyance and attendant charges Loss of income during 16,000 25,000 laid up period Loss of amenities 15,000 25,000 Loss of future income 122,880 192,000 Future medical expenses 10,000 10,000 Total 261,356 364,476

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.364,476/-.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 7%

p.a. (enhanced amount shall carry interest at 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

DM