Karnataka High Court

Sri Lokesh D vs M/S Icici Lombard Gen Insurance ... on 19 July, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 19TH DAY OF JULY 2022

                        BEFORE

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

               MFA No.922 OF 2020(MV)

BETWEEN

SRI LOKESH D
S/O DORAI RAJ D
AGED ABOUT 34 YEARS
R/AT NO 26/83, 3RD CROSS
NANJAPPA LAYOUT
ADUGODI, BENGALURU 560030.
                                         ...APPELLANT
(BY SRI.GURUDEV PRASAD K T., ADV.)

AND

1.     M/S ICICI LOMBARD GEN INSURANCE CO. LTD.,
       BY ITS MANAGER
       THE ESTATE, NO 121
       DICKENSON ROAD
       M G ROAD, BENGALURU 560001.

2.     M/S FIRST STEPS BABY WEAR PVT. LTD.
       AT NO 235 D, 3RD PHASE
       BOMMASANDRA, INDUSTRIAL AREA
       HOSUR MAIN ROAD
       BENGALURU 560100.
                                      ...RESPONDENTS
(BY SRI. B. PRADEEP, ADV. FOR R1:
    NOTICE TO R2 IS SERVED BUT UNREPRESENTED)
                           2




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED.
21.02.2019, PASSED IN MVC NO.1248/2018, ON THE FILE
OF THE XIX ADDITIONAL SMALL CAUSES JUDGE AND
MACT, BENGALURU (SCCH-17), PARTLY ALLOWING THE
CLAIM 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 21.02.2019 passed by the XIX

Additional SCJ and MACT, Bengaluru (SCCH-17) in

MVC No.1248/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 12.02.2018 at about 07.30

p.m., the claimant was crossing the road on foot near

Bajaj Showroom, opposite to La-Classic Hotel on

Bengaluru-Hosur NH-7 road, at that time, the driver of

the Car bearing Registration No.KA-51/MK-4002 drove

the same in high speed, rash and negligent manner

and dashed to 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.1

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.2 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.Nagaraj B.N. was examined as PW-3 and

got exhibited documents namely Ex.P1 to Ex.P18. On

behalf of the respondents, one witness was examined

as RW-1 but no document 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.4,58,139/- along with

interest at the rate of 7.5% 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, even though the claimant claims that he

was working as worker at Silk farm and earning

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

notional income as merely as Rs.10,000/- per month.

Secondly, the claimant has examined the doctor

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

the claimant has suffered disability of 43% to lower

limb and 14% to whole body. But the Tribunal has

taken the whole body disability at 10%, 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 14 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, 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, the doctor in his evidence has stated

that the claimant has suffered disability of 43% to

lower limb and 14% to whole body. Since the

fractures are reunited and PW-3 is not a treated

doctor, the Tribunal considering the injuries sustained

by the claimant, has rightly assessed the whole body

disability at 10%.

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 7.5% p.a. on the compensation amount is

on the higher side. 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.

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, 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 2018, the notional

income has to be taken at Rs.12,500/- p.m.

As per Wound Certificate, the claimant has

sustained left tibia schatzker fracture type IV,

laceration over occipital protuberance of scalp 1X5 cm

and multiple abrasions over left foot and right foot.

The doctor in his evidence has stated that the

claimant has suffered disability of 43% to particular

limb and 14% to whole body and there is scar over

the right proximal left with wasting of the thigh and

calf muscles. Therefore, taking into consideration the

deposition of the doctor and injuries mentioned in the

Wound Certificate, I am of the opinion that the whole

body disability can be assessed at 14%. The claimant

is aged about 34 years at the time of the accident

and multiplier applicable to his age group is '16'.

Thus, the claimant is entitled for compensation of

Rs.3,36,000/- (Rs.12,500*12*16*14%) 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.37,500/- (Rs.12,500*03 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 14 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.30,000/- to Rs.45,000/-.

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 55,000 55,000 Medical expenses 1,31,139 1,31,139 Food, nourishment, 20,000 20,000 conveyance and attendant charges Loss of income during 30,000 37,500 laid up period Loss of amenities 30,000 45,000 Loss of future income 1,92,000 3,36,000 Total 4,58,139 6,24,639

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.6,24,639/- as against Rs.4,58,139/- 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 @ 7.5%

p.a. (the enhanced compensation shall carry interest