Karnataka High Court

Sridhar R vs Afzal Sab D C on 12 July, 2022

Bench: H T Prasad

                             1



     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.410 OF 2020(MV)

BETWEEN:

Sridhar R.,
S/o Ravi Kumar,
Aged about 26 years,
R/at No.114,
Kasinayakanahalli,
Madhugiri Taluk,
Tumkur District-572 132.              ... Appellant

(By Sri.R.Lakshmana, Advocate)

AND:

1.     Afzal Sab D.C.,
       S/o D.C. Fakruddin,
       R/at No.3/2/104,
       Mukkadipet,
       Hindupur Town,
       Ananthpur District,
       Andra Pradesh-515201.

2.     National Insurance Co. Ltd.,
       By its Regional Manager,
       Regional Office,
       No.144, Subharam Complex,
       M.G.Road, Bangalore-1.

3.     Sri. V. Ashok,
       S/o S.Waleesh,
                            2



     R/at No.2019,
     HIG "B" Sector KHB,
     Yelahanka New Town,
     Bangalore-64.                     ... Respondents

(By Sri. S.V.Hegde Mulkhand., Advocate for R2:
Notice to R1 & R3 is dispensed with
Vide order dated: 24.03.2022)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:02.05.2019 passed
in MVC No.299/2017 on the file of the XVI Additional
Judge Court of Small Causes, Bengaluru, partly allowing
the claim petition for compensation and seeking
enhancement of compensation.

      This MFA, coming on for admission, this day, this
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 02.05.2019 passed

by the Motor Vehicles Accident Claims Tribunal,

Bengaluru City SCCH-14 in MVC No.299/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 16.10.2014 at about 11.45

p.m., the claimant was proceeding in a motorcycle

bearing registration No.KA-04/EC-8096 as a pillion

rider along with rider and another pillion rider on

Doddaballapura - Gowribidanur road. When they

were near Tapasihalli, Tubagere Hobli, Doddaballapura

Taluk, Bengaluru Rural District, at that time, a Tata

Indica car bearing registration No.AP-02/N-2511 being

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

negligent manner, dashed against the 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 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

pleaded that the petition itself is false and frivolous in

the eye of law. It was further pleaded that the

accident was due to the rash and negligent riding of

the rider of the motorcycle. It was further pleaded

that the driver of the offending vehicle did not have

valid driving licence as on the date of the accident. It

was further pleaded that there are two pillion riders

proceeding in the motorcycle which is in violation of

the policy conditions. It was further pleaded that the

liability is subject to terms and conditions of the

policy. 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 Nos.1 and 3 did not appear

before the Tribunal inspite of service of notice and

were 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.Avinash Parthasarathy was

examined as PW-3 and other two witnesses as PW-2

and PW-4 and got exhibited documents namely Ex.P1

to Ex.P16. On behalf of the respondents, one witness

was examined as RW-1 and got exhibited document

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.2,59,000/- along with interest @ 7% p.a. and

directed the Insurance Company to deposit the

compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. Sri R.Lakshmana, the learned counsel for

the claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was doing server work in a Bar and Restaurant and

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

taken the notional income as only Rs.6,000/- per

month.

Secondly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 26 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 and he has to suffer the disability

and unhappiness throughout his life. Considering the

same, the compensation granted by the Tribunal

under the heads of 'pain and sufferings', 'loss of

amenities' and other heads are on the lower side.

Hence, he sought for allowing the appeal.

7. On the other hand, Sri S.V.Hegde

Mulkhund, 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, 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.

Thirdly, in view of the law laid down by a

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 rate of interest awarded by the

Tribunal at 7% p.a. 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.

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.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 2014, the notional income has to be

taken at Rs.8,500/- p.m. Due to the accident, the

claimant has sustained fracture of left femur with fat

embolism syndrome, fracture of both bones of right

leg tibia and fibula and head injury and right frontal

parietal contusion. PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

23% to particular limb. Therefore, taking into

consideration the deposition of the doctor, PW-2 and

injuries mentioned in the wound certificate, the

Tribunal has rightly taken the whole body disability

at 10%. The claimant was aged about 24 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.1,83,600/-

(Rs.8,500*12*18*10%) on account of 'loss of future

income'.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He was

treated as inpatient for more than 26 days in the

hospital and thereafter, has received further

treatment. He has suffered lot of pain during

treatment and he has to suffer with the disability and

unhappiness throughout his life. Considering the

same, I am inclined to enhance the compensation

awarded by the Tribunal under the head of 'pain and

sufferings' from Rs.40,000/- to Rs.60,000/-, 'loss of

amenities' from Rs.30,000/- to Rs.40,000/- and 'loss

of income during laid-up period' for a period of four

months, i.e., Rs.34,000 (Rs.8,500*4)

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 60,000 Food, nourishment, 15,000 15,000 conveyance and attendant charges Loss of income during 24,000 34,000 laid up period Loss of amenities 30,000 40,000 Loss of future income 1,29,600 1,83,600 Future medical expenses 20,000 20,000 Total 2,58,600 3,52,600

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.3,52,600/- as against Rs.2,58,600/- awarded by

the Tribunal.

In view of the law laid down by a Division Bench

of this Court in JOYEETA BOSE (supra) the

enhanced compensation carries interest @ 6% p.a.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 7%

p.a. (interest @ 6% p.a. on the enhanced

compensation) from the date of filing of the claim