Mahadevu @ Mahadeva vs Sajina M
2022 Latest Caselaw 10685 Kant

                          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.4138 OF 2020(MV)

BETWEEN:

MAHADEVU @ MAHADEVA
S/O LATE RAMAIAH
AGED ABOUT 41 YEARS
R/O KOLAGATTA VILLAGE
BOLANAHALLI POST
BILIKERE HOBLI, HUNSUR TALUK
MYSURU DISTRICT
                                         ...APPELLANT
(BY SRI.SYED ABDUL SABOOR, ADV.)

AND:

1.     SAJINA M
       D/O LATE PRADEEPKUMAR K P
       AGED ABOUT 43 YEARS
       R/AT 294 5TH BLOCK
       VENKATAPPA LAYOUT
       BYPASS ROAD, GONIKOPPA
       KODAGU-571213.

2.     THE MANAGER
       BAJAJ ALLIANCE GENERAL
       INSURANCE COMPANY LTD.,
       DEEWAN'S ROAD
       RAMASWAMY CIRCLE
       MYSURU-570009.
                           2



                                       ...RESPONDENTS

(BY SRI. E.I.SANMATHI, ADV. FOR R2:
NTOCE TO R1 IS DISPENSED WITH
V/O DATED: 12.07.2022)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED.
06.03.2020, PASSED IN MVC NO.798/2017, ON THE FILE
OF THE JUDGE, ADDITIONAL COURT OF SMALL CAUSES,
AS A PRESIDING OFFICER, MACT, MYSURU, 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 06.03.2020 passed

by Motor Accident Claims Tribunal, Mysuru in MVC

No.798/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 30.05.2017 at about 02.30

P.M., when the claimant was proceeding on Hunsur in

his Motorcycle bearing Registration No.KA-55-Q-4581

on the left side of the road by following the traffic

rules, at that time, the driver of the Car bearing

Registration No.KA-12-Z-4875 drove the same in a

rash and negligent manner and hit the motorcycle 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. 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 vehicle by the claimant himself. The

driver of the offending vehicle did not have valid

driving licence as on the date of the accident. The

liability is subject to terms and conditions of the

policy. 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.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.Harshan A.H., was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P13. On behalf of the

respondents, one witness was examined as RW-1 and

got exhibited documents namely Ex.R1 to Ex.R7. 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.4,44,500/- 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 mason work and earning

Rs.15,000/- per month, but the Tribunal has taken the

notional income as merely as Rs.7,000/- per month.

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

evidence that the claimant is suffering from moderate

socio adoptive disfunction (SQ-53) at 75%. But the

Tribunal has erred in taking the whole body disability

at only 25%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 44 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.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, even though the doctor has deposed

that the clamant is suffering from moderate socio

adoptive disfunction (SQ-53) at 75%, in his cross-

examination, he has admitted that the claimant has

not undergone any surgery. Therefore, the Tribunal

considering the injuries sustained by the claimant, has

rightly assessed the whole body disability at 25%.

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.15,000/- 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 2017, the notional income has to be taken

at Rs.11,000/- p.m.

As per wound certificate, the claimant has

sustained a sutured wound over right temporal

parietal region of scalp head with surrounding swelling

and underlying tenderness and the injuries are

grievous in nature. PW-2, the doctor has stated in his

evidence that clamant is suffering from moderate

socio adoptive disfunction (SQ-53) at 75%. In his

cross-examination, he has admitted that the claimant

has not undergone any surgery and even the claimant

himself has appeared before the Tribunal and has

given an evidence as PW-1. 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 25%. The claimant is aged about 42 years at the

time of the accident and multiplier applicable

to his age group is '14'. Thus, the claimant is

entitled for compensation of Rs.4,62,000/-

(Rs.11,000*12*14*25%) 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.33,000/- (Rs.11,000*3 months)

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

The claimant was treated as inpatient for more

than 49 days in the hospital and thereafter, has

received further treatment. Hence, I am inclined to

enhance the compensation awarded under the head of

'conveyance, nourishment and attendance charges'

from Rs.4,500/- to Rs.10,000/-.

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.5,000/- to Rs.30,000/- and 'pain and sufferings'

from Rs.15,000/- 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 15,000 40,000 Medical expenses 1,12,000 1,12,000 Food, nourishment, 4,500 10,000 conveyance and attendant charges Loss of income during 14,000 33,000 laid up period

Loss of amenities 5,000 30,000 Loss of future income 2,94,000 4,62,000 Total 4,44,500 6,87,000

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.6,87,000/- against Rs.4,44,500/- 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/-