Karnataka High Court

Smt Lakshmamma vs Shivarajkumar H B on 18 July, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 18TH DAY OF JULY 2022

                        BEFORE

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

              MFA No.1323 OF 2020(MV)
BETWEEN:

SMT LAKSHMAMMA
W/O HANUMANTHEGOWDA
NOW AGED ABOUT 56 YEARS
R/AT HONNEHALLI VILLAGE
GANDASI HOBLI
ARSIKERE TALUK
HASSAN DISTRICT - 577101.
                                         ...APPELLANT
(BY SMT. KAMALA D K., ADV.)

AND:

1.     SHIVARAJKUMAR H B
       S/O BASAVEGOWDA H S
       NOW R/AT 5/6 3RD MAIN ROAD
       NGOS COLONY
       KAMALANAGAR
       BASAVESWARANAGAR
       BANGALORE - 560079.

       ALSO AT:
       HONNENAHALLI VILLAGE
       LALANAKERE POST
       GANDASI HOBLI
       ARASIKERE TALUK
       HASSAN DISTRICT.
                          2



2.   M/S BAJAJ ALLIANZ GEN INS CO LTD
     REP BY ITS MANAGER
     GOLDEN HEIGHTS
     4TH FLOOR, NO. 1/2
     59TH C CROSS, 4TH M BLOCK
     RAJAJINAGAR
     BENGALURU - 560010.
                                      ...RESPONDENTS

(BY SRI. E.I.SANMATHI, ADV. FOR R2:
    NOTICE TO R1 IS DISPENSED WITH
    VIDE ORDER DATED: 18.07.2022)

     THIS MFA IS FILED UNDER SECTION.173(1) OF MV
ACT,   AGAINST    THE   JUDGMENT    AND    AWARD
DATED:01.03.2019 PASSED IN MVC NO.2088/2017 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND AMACT,
ARSIKERE, 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 dated 01.03.2019 passed by the

Senior Civil Judge and AMACT, Arsikere in MVC

No.2088/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 01.11.2017 at about 04.45

p.m., when the claimant was going with her cattle on

the left side of the road, the rider of the motorcycle

bearing Registration No.KA-02-HW-2222 rode the

same in a rash and negligent manner dashed against

the claimant from behind. 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 she 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 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 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 herself was

examined as PW-1 and Dr.Abdul Basheer was

examined as CW-1 and got exhibited documents

namely Ex.P1 to Ex.P12. and Ex.C1 to Ex.C5. 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 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.1,90,236/- 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, the

present appeal has been filed.

6. The learned counsel for the claimant has

raised the following contentions:

Firstly, at the time of the accident, the claimant

claims that she was aged about 54 years. Even as per

Ex.P1-FIR, Ex.P2-complaint, Ex.P3-spot mahazar and

Ex.P9-discharge summary show that the age of the

claimant as 54 years. By oversight, in the Wound

Certificate as per Ex.P6, it has been mentioned the

age of the claimant as 70 years. The Tribunal has

relied Ex.P6-Wound Certificate, has error in holding

that the claimant was age about 70 years.

Secondly, even though the claimant claims that

she was doing business and animal husbandry and

earning Rs.60,000/- per month, but the Tribunal has

taken the notional income as merely as Rs.8,500/- per

month.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 11 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

heads of 'loss of amenities', 'pain and sufferings' and

other incidental expenses 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, as per Ex.P6-Wound Certificate, the age

of the claimant has mentioned as 70 years.

Therefore, the Tribunal has rightly assessed the age of

the claimant as on the date of the accident as 70

years.

Secondly, even though the claimant claims that

he was earning Rs.60,000/- per month, he has not

produced any documents to establish his income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

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.

Fourthly, in view of the Division Bench decision

of this Court in the case of Ms.Joyeeta Bose and

others -v- Venkateshan.V and others (MFA

5896/2018 and connected matters disposed of on

24.8.2020), the rate of interest granted by the

Tribunal at 9% p.a. on the compensation amount is on

the higher side. Hence, she 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 specific contention of the claimant is that at

the time of the accident, her age was 54 years. In her

evidence, she has specifically stated that she was

aged about 54 years. Even as per Ex.P1-FIR, Ex.P2-

complaint, Ex.P3-spot mahazar and Ex.P9-discharge

summary show that the age of the claimant as 54

years. The Tribunal only on the basis of Ex.P6-Wound

Certificate, has erred in holding that the age of the

claimant as 70 years. Considering the above

documents, I am of the opinion that the claimant was

aged about 54 years.

The claimant claims that he was earning

Rs.60,000/- per month. She has not produced any

documents to prove her 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 2017, the notional

income has to be taken at Rs.11,000/- p.m.

As per wound certificate, the claimant has

sustained fracture of both bones forearm right side

and head injury. He has examined the doctor as CW-

1. 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 10%. The claimant is aged about 54

years at the time of the accident and multiplier

applicable to his age group is '11'. Thus, the claimant

is entitled for compensation of Rs.1,45,200/-

(Rs.11,000*12*11*10%) 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 02 months. Therefore, the claimant is entitled for

compensation of Rs.22,000/- (Rs.11,000*2 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 'loss of amenities' from

Rs.5,000/- to Rs.30,000/- and under the head of 'pain

and sufferings' from Rs.35,000/- 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 35,000 40,000 Medical expenses 61,236 61,236 Food, nourishment, 10,000 10,000 conveyance and attendant charges Loss of income during 8,000 22,000 laid up period

Loss of amenities 5,000 30,000 Loss of future income 51,000 1,45,200 Future medical expenses 20,000 20,000 Total 1,90,236 3,28,436

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.3,28,436/- as against Rs.1,90,236/-.

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