Sri Shivanna vs The Managing Director
2022 Latest Caselaw 10886 Kant

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  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.4152 OF 2019(MV)
BETWEEN:

SRI SHIVANNA
S/O SHANKARAPPA
NOW AGED ABOUT 52 YEARS
R/AT DHANALAKSHMI NILAYA
SUBHASHNAGAR, DODDABALLAPUR TOWN
BANGALORE RURAL DISTRICT.
                                         ...APPELLANT
(BY SRI. GOPAL KRISHNA N., ADV.)

AND:

THE MANAGING DIRECTOR
K.S.R.T.C., K H ROAD
SHANTHINAGAR
BANGALORE-560027.
                                       ...RESPONDENT
(BY SRI.ASHOK N NAYAK, ADV.)

       THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT     AGAINST    THE     JUDGMENT    AND      AWARD
DATED:13.07.2018 PASSED IN MVC NO.1734/2016 ON
THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE
AND XXVII ACMM, MOTOR ACCIDENT CLAIMS TRIBUNAL,
BENGALURU (SCCH-11), PARTLY ALLOWING THE CLAIM
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PETITION    FOR     COMPENSATION       AND     SEEKING
ENHANCEMENT OF COMPENSATION.


     THIS MFA COMING ON FOR ADMISSION 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 13.07.2018 passed by the

I Additional Small Causes Judge and XXVII ACMM,

Bengaluru in MVC No.1734/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 02.02.2016 at about 09.30

a.m., the claimant was returning after completing his

office work at Gowribidanur town was returning back

to Doddaballapura town as a passenger in KSRTC Bus

bearing Registration No.KA-40-F-1036 by sitting in the

back row seat. At that time, the driver of the said Bus

drove the same in a rash and negligent manner with

high speed and driven over a road hump at

Palanajogihalli church on Gowribidanur-

Doddaballapura road, Doddaballapura Taluk,

Bengaluru rural district. Due to impact, the back

portion of the Bus jumped to height and the claimant's

head was dashed against the roof top of the Bus. 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

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.

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.Nagaraj B.N., was examined as PW-3

and got exhibited documents namely Ex.P1 to Ex.P17.

On behalf of the respondents, one witness was

examined as RW-1 but no documents were marked.

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.1,63,150/- along with

interest at the rate of 6% p.a. and directed the

Corporation 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, even though the claimant claims that he

was working as a Marketing Officer and earning

Rs.2,65,800/- per annum. To prove the same, he has

produced Salary Certificate as per Ex.P12, but the

Tribunal has disbelieved the same and has taken the

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

Even as per the Lok-Adalath chart, the notional

income has been fixed for the accident year 2016 as

Rs.9,500/-.

Secondly, the claimant has examined the doctor

as PW-3. The doctor in his evidence has stated that

the claimant has suffered disability of 25% to whole

body. But the Tribunal has taken the whole body

disability at 9%, which is on the lower side.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 04 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 Corporation has raised following counter

contentions:

Firstly, Since the claimant has failed to

established his income, the Tribunal has rightly

assessed the income of the claimant notionally.

Secondly, even though the doctor in his evidence

has stated that the claimant has suffered disability of

25% to whole body, he has not a treated doctor and

has not assessed the limb disability. The Tribunal

considering the injuries sustained by the claimant, has

rightly assessed the whole body disability at 9%.

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. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award of the Tribunal

and original 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.

Even though the claimant claims that he was

earning Rs.2,65,800/- per annum, except producing

the Salary Certificate, he has not produced any Bank

Statement or any other documents to establish his

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 2016, the notional income has to be taken at

Rs.9,500/- p.m.

As per wound certificate, the claimant has

sustained L2 vertebral burst fracture with paraparesis.

The doctor in his evidence has stated that the

claimant has suffered compression of more than 50%

involving single vertebra or more with involvement of

posterior elements, healed, no neurological

manifestations persistent pain at 25%. Therefore,

taking into consideration the deposition of the doctor

and injuries mentioned in the wound certificate and

since the claimant has suffered injuries to vertebra,

I am of the opinion that the whole body disability can

be assessed at 18%. The claimant is aged about 49

years at the time of the accident and multiplier

applicable to his age group is '13'. Thus, the claimant

is entitled for compensation of Rs.2,66,760/-

(Rs.9,500*12*13*18%) 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.19,000/- (Rs.9,500*02 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 was

treated as inpatient for more than 04 days in the

hospital. 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.20,000/- to Rs.30,000/- and under the head of

'pain and sufferings' from Rs.15,000/- to 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 15,000 30,000 Medical expenses 2,830 2,830 Food, nourishment, 5,000 5,000 conveyance and attendant charges Loss of income during 8,000 19,000 laid up period Loss of amenities 20,000 30,000 Loss of future income 1,12,320 2,66,760 Total 1,63,150 3,53,590

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.3,53,590/- as against Rs.1,63,150/-.

The Corporation 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.

In view of the order dated 23.03.2022 passed by

this Court, the claimant is not entitled for interest for

the delayed period of 173 days in filing the appeal.

Sd/-

JUDGE

HA/-