B K Somanna vs Smt Syjivathi N T
2022 Latest Caselaw 10677 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 12TH DAY OF JULY 2022

                     BEFORE

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

          MFA No..3485 of 2020(MV)

BETWEEN

B K SOMANNA
S/O LATE KULLAIAH
AGED ABOUT 58 YEARS
R/AT BHEEMANAHALLI VILLAGE
HANNURU POST H D KOTE TALUK
MYSURU DISTRICT.
                                     ...APPELLANT

(BY SRI. SYED ABDUL SABOOR, ADV.)

AND

1.    SMT SYJIVATHI N T
      W/O PRASANNAKUMAR T R
      AGED ABOUT 42 YEARS
      R/AT 562/1 DOLAR COMPART
      3RD FLOOR, FLAT 306
      RMV 2ND STAGE, IST MAIN ROAD
      IST CROSS ROAD
      NAGASHETTAHALLI
      DOLLARS COLONY
      BENGALURU-560 0078.
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2.   THE MANAGER
     DIVISIONAL OFFICE
     UNITED INDIA INSURANCE CO LTD
     BALLAL CIRCLE
     NEW KANTHARAJA URS ROAD
     MYSURU-570 004

                                    ...RESPONDENTS

(BY SRI. LOKESH B N., ADV. FOR R1:
SRI. B.C. SHIVANNE GOWDA, ADV. FOR R2)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
30.11.2019 PASSED IN MVC NO.1137/2018 ON THE
FILE OF THE II ADDITIONAL DISTRICT JUDGE AND
MACT, MYSURU, ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION 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 30.11.2019 passed by MACT,

Mysuru in MVC 1137/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 17.8.2018 when the

claimant was proceeding on left side of road on

Hunsuru-H.D.Kote Main Road, near Bheemanhalli

village, at that time, motorcycle bearing registration

No.KA-09-ET-6996 being ridden by its rider at a high

speed and in a rash and negligent manner, dashed to

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 riding of the offending vehicle by

its rider.

4. On service of notice, the respondents

appeared through their counsel and filed written

statements in which the averments made in the

petition were denied.

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.Santhosh was examined as

PW-2 and got exhibited documents namely Ex.P1 to

Ex.P10. On behalf of the respondents, no witness was

examined and got exhibited documents namely Ex.R1

to Ex.R3. 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.241,812/- 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, the present 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 agricultural work and earning Rs.15,000/-

per month, but the Tribunal has taken the notional

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

Secondly, the claimant has examined the doctor

as PW-2. The doctor in his evidence has stated that

the claimant has suffered disability of 33% to

particular limb and there is deformity and skin

complication to the extent of 8%. But the Tribunal has

taken the whole body disability at 10%, 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 10 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 head

of 'pain and sufferings', 'future medical expenses' and

other incidental expenses are on the lower side.

Further, the Tribunal has not granted any

compensation for '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.15,000/- 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, the doctor in his evidence has stated

that the claimant has suffered disability of 3% to

particular limb. The Tribunal considering 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 and it does not call for

interference. 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 riding of the offending

vehicle by its rider.

The claimant claims that he was earning

Rs.15,000/- per month. 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 head injury with open type to left leg,

middle and distal 1/3rd junction bone fracture. The

doctor in his evidence has stated that the claimant has

suffered disability of 33% to particular limb and

deformity and skin complication to the extent of 8%.

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 13%. The claimant is aged about 58

years at the time of the accident and multiplier

applicable to his age group is '9'. Thus, the claimant is

entitled for compensation of Rs.175,500/-

(Rs.12,500*12*9*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 3 months. Therefore, the claimant is entitled for

compensation of Rs.37,500/- (Rs.12,500*3 months)

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

The claimant was treated as inpatient for more

than 10 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 award a sum of

Rs.30,000/- under the head of 'loss of amenities'.

Further, I am inclined to enhance the compensation

awarded by the Tribunal under the head of 'pain and

sufferings' 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 30,000 40,000 Medical expenses 59,412 59,412 Food, nourishment, 12,000 12,000 conveyance and attendant charges Loss of income during 24,000 37,500 laid up period Loss of amenities 0 30,000 Loss of future income 86,400 175,500 Future medical expenses 30,000 30,000 Total 241,812 384,412

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.384,412/-.

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

DM