Karnataka High Court
Mohammed Shakkel @ Shakeel vs Praveen Dema Shetty 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.2766 OF 2019(MV)
BETWEEN
MOHAMMED SHAKKEL @ SHAKEEL
S/O LATE MOHAMMED SHAFIULLA
BUSINESS AND FILM DISTRIBUTOR
NEW SANTHE MAIDANA
OPP TO VENKATESHWARA PICTURE TALKIES
ADJACENT TO MEDEHALLI ROAD
CHITRADURGA TOWN-577501.
...APPELLANT
(BY SRI. B PRAMOD., ADV.)
AND
1. PRAVEEN DEMA SHETTY
DEAD BY LRS SMT. ARUNDATHI
D/O MALLIKARJUNA @
MALLAPPA DEMASHETTY
R/O PLOT NO.14, D.S.MAX
SAMRAT APARTMENT, MUTHYALA NAGARA J.P.A.
PARK NEAR MATHIKERE
BENGALURU-560054.
2. BRANCH MANAGER
ICICI LOMBARD GENERAL INSURANCE
2
COM.LTD.,
2ND FLOOR, BELLAD AND CO.,BUILDING
ABOVE HERO HONDA SHOWROOM
BANNIGIDA STOP
GOKUL ROAD, HUBLI-580 030.
...RESPONDENTS
(BY SRI.B.PRADEEP, ADV. FOR R2:
NOTICE TO R1 IS SERVED BUT
UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:31.12.2018 PASSED IN MVC NO.478/2018 ON
THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE
AND ADDITIONAL MACT-IV, CHITRADURGA, 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 31.12.2018 passed by Senior
Civil Judge and Addl. MACT-IV, Chitradurga in MVC
478/2018.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 25.11.2017 when the
claimant along with others were proceeding in Scorpio
vehicle bearing registration No.KA-34-M-9935 near
Manjanna Dhaba, NH-4 road, Metikurke village,
Hiriyur, at that time, car bearing registration No.KA-
04-MQ-3711 being driven by its driver at a high speed
and in a rash and negligent manner, dashed to the
vehicle of 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 respondents
appeared through counsel and filed written statement
in which the averments made in the petition were
denied.
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-2 and Dr.Dinesh was examined as
PW-6 and got exhibited documents namely Ex.P14 to
Ex.P21. On behalf of the respondents, no witness was
examined and got exhibited documents namely Ex.R1.
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.389,212/- along with
interest at the rate of 6% 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, the claimant has examined the doctor as
PW-6. The doctor in his evidence has stated that the
claimant has suffered disability of 57.17% to
particular limb. But the Tribunal has taken the whole
body disability at 15%, which is on the lower side.
Secondly, 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 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 doing business, lorry owner and film distributor
work and earning Rs.100,000/- per month, he has not
produced any documents to establish his income. In
the absence of proof of income, the Tribunal is not
justified in assessing the notional income at
Rs.8,000/- p.m. and adding 40% future prospects and
taking the monthly income of the claimant at
Rs.11,200/-, which is on the higher side. Even 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.
Secondly, CW-1, the doctor in his evidence has
stated that the claimant has suffered disability of
57.17% to particular limb. He is not a treated doctor.
The injuries sustained by the claimant are minor in
nature. The Tribunal considering the injuries sustained
by the claimant, has rightly assessed the whole body
disability at 15%.
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.
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.100,000/- per month. He has not produced any
documents to prove his income. In the absence of
proof of income, the Tribunal is not justified in
considering addition of 40% of the income towards
future prospects and taking the monthly income of the
claimant at Rs.11,200/-. However, even as per the
guidelines issued by the Karnataka State Legal
Services Authority, for the accident taken place in the
year 2017, the notional income is taken at
Rs.11,000/- p.m. Therefore, the income assessed by
the Tribunal at Rs.11,200/- is retained.
As per wound certificate, the claimant has
sustained tenderness present over right hip, lacerated
wound present over right knee 2x2 cms. The doctor
in his evidence has stated that the claimant has
suffered disability of 57.17% to particular limb.
Therefore, taking into consideration the deposition of
the doctor and injuries mentioned in the wound
certificate, the whole body disability can be taken at
18%. The claimant is aged about 36 years at the
time of the accident and multiplier applicable to
his age group is '15'. Thus, the claimant is
entitled for compensation of Rs.362,880/-
(Rs.11,200*12*15*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 2 months. Therefore, the claimant is entitled for
compensation of Rs.22,400/- (Rs.11,200*2 months)
under the head 'loss of income during laid up period'.
The claimant was treated as inpatient for more
than 4 days in the hospital and thereafter, has
received further treatment. 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.25,000/- 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 25,000 45,000
Medical expenses 11,812 11,812
Food, nourishment, 10,000 10,000
conveyance and
attendant charges
Loss of income during 0 22,400
laid up period
Loss of amenities 40,000 40,000
Loss of future income 302,400 362,880
Total 389,212 492,092
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.492,092/-.
The Insurance Company 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.
Sd/-
JUDGE
DM
