Karnataka High Court

C S Akash vs Tata Aig General Insurance Co Ltd on 14 July, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 14TH DAY OF JULY 2022

                        BEFORE

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

              MFA No.1123 OF 2021(MV)
BETWEEN:

C S AKASH
S/O C P SURYA PRAKASH
AGED ABOUT 33 YEAWRS
R/AT NO.17,1ST FLOOR
11TH MAIN, SBM COLONY
NEAR JP PARK,
CHOWDESHWARI BUS STOP
BRINDAVANANAGAR, MSRIT
BANGALORE 54.
                                         ...APPELLANT
(BY SRI.SHRIPAD V SHASTRI, ADV.)

AND:

1.     TATA AIG GENERAL INSURANCE
       COMPANY LTD.,
       NO.69,JP AND DEVI
       JAMBUKESHWAR ARCADE
       MILLERS ROAD
       BANGALORE 52
       BY ITS MANAGER.

2.     MR. GAJENDRA REDDY D
       S/O ETHURUJULA REDDY D
       R/AT NO.16, 17TH CROSS
       6TH MAIN ROAD
       VENKATESHWARA KALYANA MANTAPA
                          2



    MOHAN KUMAR NAGAR
    YESHWANTHPURA
    BENGALURU 560022.
                                     ...RESPONDENTS

(BY SRI. RAVI S SAMPRATHI, ADV. FOR R1:
    NOTICE TO R2 IS DISPENSED WITH
    VIDE ORDER DATED: 14.07.2022)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
17.12.2020 PASSED IN MVC NO.2522/2019 ON THE FILE
OF THE III ADDITIONAL JUDGE AND MEMBER, MACT,
COURT OF SMALL CAUSES, BENGALURU SCCH-18, 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 17.12.2020 passed

by the III Additional Judge & Member, MACT, Court of

Small Causes, Bengaluru in MVC No.2522/2019.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 27.04.2019 at about 07.35

p.m., the claimant was riding the motorcycle bearing

Registration No.KA-04-JF-9979, slowly and cautiously

by observing all the traffic rules and regulations, when

he reached near Kiran Dry Cleaner shop, JP Park,

Brundavana Nagar, Bengaluru, at that time, the driver

of the Luggage Autorickshaw bearing Registration

No.KA-04-AB-8221 drove the same in a rash and

negligent manner with high speed and dashed against

the claimant's 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 Nos.1

and 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 quantum of compensation claimed by the claimant

is exorbitant. Hence, he sought for dismissal of the

petition.

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. Nagaraj B. N. was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P20. 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.2,10,855/- along with interest @

8% 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 Web Designer and earning Rs.60,000/- per

month. Due to the accident, he has suffered grievous

injuries. He was inpatient in the hospital for a period

of 3 days. He was advised to take rest for three

months. Since he was not attended to his work for a

period of three months, the Tribunal has failed to

grant any compensation under the head of 'loss of

income during the laid up period'.

Secondly, due to the accident, the claimant has

sustained grievous injuries. 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.

Lastly, the claimant has examined the doctor as

PW-2. He has deposed that the claimant is required

Rs.40,000/- for future medical expense. But the

Tribunal has not granted any compensation under that

head. 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.60,000/- per month and he has

produced the document as per Ex.P11, he has not

examined the author of the document. He further

contended that it is not in dispute that even after the

accident, he was continued in his job and there was

no loss of future income. Therefore, the Tribunal has

rightly not granted any compensation under the head

of 'loss of future income'.

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, even though the doctor has deposed

that the claimant is required for a sum of Rs.40,000/-

towards future medical expenses, he has not produced

any document to show that he has undergone any

surgery. Therefore, the Tribunal has rightly not

granted any compensation under the head of 'future

medical expenses'.

Laslty, 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 8% 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 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.

Due to the accident, the claimant has sustained

right elbow contusion with selling. He has examined

the doctor as PW-2, who has stated in his evidence

that the claimant has suffered disability of 42% to

the right arm and 14% to whole body. Since the

claimant has continued in his job and there is no loss

of future income, the Tribunal has rightly not granted

any compensation under the head of 'loss of future

income'.

At the time of the accident, the claimant was

earning Rs.60,000/- per month as a Web Designer

and has produced document as per Ex.P11. But he

has not examined the author of the document. Due to

the accident, he has suffered injuries and he was

advised to take rest for a period of three months.

Therefore, considering the evidence of the doctor,

injuries suffered by the claimant, I am of the opinion

that the claimant is entitled for the compensation

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

period'.

In respect of income is concerned, even though

the claimant claims that he was earning Rs.60,000/-

per month as a Web Designer, he has not produced

any document to establish the same. 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 2019, the notional income has to be taken

at Rs.14,000/- p.m.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He was

treated as inpatient for more than 3 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.30,000/- to Rs.50,000/- and 'loss

of income during laid up period' for Rs.42,000/-

(Rs.14,000X3 months).

The claimant has examined the doctor PW-2,

who in his testimony stated that the claimant requires

about Rs.40,000/- towards 'future medical expenses'.

Hence, I am inclined to grant the compensation under

the head of 'future medical expenses' for 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 30,000 50,000 Medical expenses 55,855 55,855 Food, nourishment, 10,000 10,000 conveyance and attendant charges Loss of income during 0 42,000 laid up period Loss of amenities 30,000 30,000 Reduced eligibility of 85,000 85,000 employment or damages due to disability Future medical expenses 0 30,000 Total 2,10,855 3,02,855

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.3,02,855/- as against Rs.2,10,855/- 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 @ 8%

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

compensation) from the date of filing of the claim