Karnataka High Court

Sri. Jogaiah vs United India Insurance Company ... on 20 July, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 20TH DAY OF JULY 2022

                        BEFORE

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

              MFA No.2730 OF 2019(MV)
BETWEEN

SRI. JOGAIAH
S/O SATHIGAIAH
AGED ABOUT 47 YEARS
RESIDING AT BETTAHALLI KAVAL
KAGGALAHALLI POST, HAROHALLI HOBLI
KANAKAPURA TALUK
RAMANAGARA DISTRICT-562117
                                         ...APPELLANT
(BY SRI.GIRIMALLAIAH, ADV.)

AND

1.     UNITED INDIA INSURANCE COMPANY LTD.,
       REGIONAL OFFICE T P HUB
       KRISHI BHAVAN 6TH FLOOR
       HUDSON CIRCLE, NRUPATHUNGA ROAD
       BENGALURU-560 001
       BY ITS MANAGER.

2.     KUMARASWAMY
       S/O SHIVAMADAIAH
       MAJOR
       R/O HAROHALLI KOTE
       HAROHALLI TOWN, KANAKAPURA TALUK
       RAMANAGARA DISTRICT-562117
                                      ...RESPONDENTS
(BY SRI. K.NAGARAJAIAH, ADV. FOR R1:
    NOTICE TO R2 IS D/W V/O DATED: 20.07.2022)
                           2




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT    AGAINST    THE   JUDGMENT    AND    AWARD
DATED:18.09.2018 PASSED IN MVC NO.5473/2017 ON
THE FILE OF THE XXI A.C.M.M. AND XXIII ADDITIONAL
SMALL CUASES JUDGE, MOTOR ACCIDENT CLAIMS
TRIBUNAL, COURT OF SMALL CAUSES, BENGALURU
(SCCH-25), PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

    THIS MFA COMING ON FOR ORDER 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 18.09.2018 passed by the XXI

ACMM & XXIII ASCJ, Bengaluru in MVC No.5473/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 30.08.2017 the claimant was

going by the side of the Harohalli, Bidadi Road. At

that time, at about 08.30 p.m., near K.N.N. Lodge,

Harohalli town, Kanakapura Taluk, the driver of the

Maruthi Swift Car bearing Registration No.KA-01-ME-

6956 came with high speed and in a rash and

negligent manner so as to endangering to human left

and 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 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. It was further pleaded

that the accident was due to negligence on the part of

claimant himself. The liability is subject to terms and

conditions of the policy. 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 and Dr.Prakashappa T. H. was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P16. 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.2,40,700/- along with interest at

the rate of 8% 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 doing coolie work and earning Rs.12,000/- per

month, but the Tribunal has taken the notional income

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

Secondly, the claimant has examined the doctor

as PW-2. The doctor in his evidence has stated that

the claimant has suffered total permanent physical

disability to the whole body from right lower limb at

21%. But the Tribunal has taken the whole body

disability at 8%, 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 23 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.12,000/- 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 total permanent

physical disability to the whole body from right lower

limb at 21%. The Tribunal considering the injuries

sustained by the claimant, has rightly assessed the

whole body disability at 8%.

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 8% 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.12,000/- 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 2017, the notional

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

As per wound certificate, the claimant has

sustained tenderness over right thigh region, abrasion

over face, painful restricted hip moments/super

candyler fracture of right femur. The doctor in his

evidence has stated that the claimant has suffered

total permanent physical disability to the whole body

from right lower limb at 21%. 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 12%. The claimant is aged about 45 years at the

time of the accident and multiplier applicable

to his age group is '14'. Thus, the claimant is

entitled for compensation of Rs.2,21,760/-

(Rs.11,000*12*14*12%) 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.33,000/- (Rs.11,000*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 23 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.40,000/- and under the head of

'pain and sufferings' from Rs.40,000/- to Rs.50,000/-.

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 40,000 50,000 Medical expenses 17,160 17,160 Food, nourishment, 20,000 20,000 conveyance and attendant charges Loss of income during 16,000 33,000 laid up period Loss of amenities 20,000 40,000 Loss of future income 1,07,520 2,21,760 Future medical expenses 20,000 20,000 Total 2,40,680 4,01,920 *The Tribunal has rounded of the award amount from Rs.2,40,680/- to Rs.2,40,700/-

11. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimants are entitled to a total

compensation of Rs.4,01,920/- as against

Rs.2,40,700/- 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 @ 8%

p.a. (the enhanced compensation shall carry interest