Karnataka High Court

Sri. Nagaraju.V vs Smt.Gowramma on 13 July, 2022

Bench: H T Prasad

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF JULY 2022

                        BEFORE

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

              MFA No.7853 OF 2019(MV)

BETWEEN:

SRI. NAGARAJU.V
S/O VENKATACHALACHARI
AGED ABOUT 45 YEARS
R/A GANJAM
SRIRANGAPATANA TOWN & TALUK
MANDYA DIST-571438
                                         ...APPELLANT
(BY SRI.MAHADEVA SWAMY P., adv.)

AND:

1.    SMT.GOWRAMMA
      W/O VENKATAIAH
      MAJOR
      R/O NO.65, 12TH CROSS
      KYATHAMARANAHALLI VILLAGE
      MYSORE CITY-570001.

2.    THE MANAGER
      TATA AIG GENERAL
      INSURANCE CO LTD
      NO.69, 3RD FLOOR, JP & DEVI
      JAMBUKESHWARI ARCADE
      MILLER ROAD
      BANGALORE-560023
                                      ...RESPONDENTS
                           2



(BY SRI.B.PRADEEP, ADV. FOR R2:
    NOTICE TO R1 IS DISPENSED WITH
    V/O DATED: 3.01.2022)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
30/04/2019, PASSED IN MVC NO.1642/2016, ON THE FILE
OF THE PRINCIPAL SENIOR CIVIL JUDGE & MEMBER,
MACT, SRIRANGAPATANA, 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 30.04.2019 passed

by the Principal Senior Civil Judge & Member, MACT,

Srirangapatana in MVC No.1642/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 29.11.2016 at about 03.30

P.M., the claimant was riding the motor cycle bearing

Registration No.KA-11-EE-6008 in a slow and cautious

manner and when he reached near Manasa School

Circle, Gayathripuram road, Mysuru, at that time, the

driver of the Auto bearing Registration No.KL-58-6149

drove the same in a rash and negligent manner and

dashed to the claimant's motor cycle. 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. 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, another witness was examined as

PW-2 and Dr.Karunakar was examined as PW-3 and

got exhibited documents namely Ex.P1 to Ex.P49. 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.2,28,000/- along with

interest at the rate of 9% 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, the claimant claims that he was working

as a Carpenter and earning Rs.25,000/- per month. To

prove the same, he has produced Certificate issued by

the Ministry of Textiles. But the Tribunal has taken the

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

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered disability of

37.98% to his left hand. Since the claimant was a

Carpenter, he was not able to do his day to day work.

But the Tribunal has failed to grant any compensation

toward 'loss of future earning'.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 4 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.25,000/- per month and he has

produced Certificates as per Ex.P43 and Ex.P44, he

has not examined any witness to prove that he was

getting salary of Rs.25,000/- per month. Therefore,

the Tribunal has rightly assessed the income of the

claimant notionally.

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered disability of

37.98% to his left hand. The Tribunal considering the

injuries sustained by the claimant, has rightly granted

compensation of Rs.1,00,000/- under the head of

'disablement'.

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.

Lastly, in view of judgment of the 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 claimants are entitled for 6% interest

but the Tribunal has granted 9% interest is on the

higher side. 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 and he has produced

Certificates issued by the Ministry of Textiles as per

Ex.P43 and Ex.P44. To prove the same, he has not

examined any witness. 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 simple as well as grievous injuries. PW-3,

the doctor has stated in his evidence that the claimant

has suffered 37.98% disability to his left hand.

Therefore, taking into consideration the deposition of

the doctor, PW-3 and injuries mentioned in the

wound certificate, I am of the opinion that the whole

body disability can be assessed as 12.66%. 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.2,02,054/- (Rs.9,500*12*14*12.66%) on

account of 'loss of future income'. Therefore, the

compensation awarded by the Tribunal under the head

of 'disablement' Rs.1,00,000/- is enhanced to

Rs.2,02,054/- and considered the same as '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 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 'pain and sufferings' from

Rs.40,000/- to 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 50,000 Medical expenses 30,000 30,000 Food, nourishment, 4,000 4,000 conveyance and attendant charges Loss of income during 24,000 28,500 laid up period Loss of amenities 30,000 30,000 Loss of future income 1,00,000 2,02,054 Total 2,28,000 3,44,554

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.3,44,554/- against Rs.2,28,000/- awarded by

the Tribunal.

In view of judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE', the

enhanced compensation shall carry interest at 6% per

annum.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 9%

p.a. (the enhanced compensation shall carry interest