Karnataka High Court
Abdul Rauf vs Sri Sandeep Kumar on 21 July, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JULY 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.901 OF 2022(MV)
BETWEEN
ABDUL RAUF
S/O. MEERA SAB
AGED ABOUT 58 YEARS
R/AT NO. 6TH CROSS RIGHT SIDE
TIPPUNAGAR
GOPALA EXTENSION
SHIVAMOGGA 577205.
...APPELLANT
(BY SRI.K.V. NAIK, ADV.)
AND
1. SRI SANDEEP KUMAR
S/O. KRISHNA K S
MAJOR
ADITYA PATTANA
AMMASANDRA
TURUVEKERE TALUK
TUMAKUR DISTRICT 572221.
2. THE MANAGER
UNITED INDIA INSURANCE CO LTD,
2
REGIONAL OFFICE
KRISHI BHAVAN
NEAR HUDSON CIRCLE
NRUPATHUNGA ROAD
BENGALURU 560027.
...RESPONDENTS
(BY SRI.B.C. SHIVANNE GOWDA, ADV, FOR R1:
NOTICE TO R1 IS DISPENSED WITH VIDE ORDER
DATED: 21.07.20220)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
05.10.2021 PASSED IN MVC NO. 4055/2019 ON THE
FILE OF THE XI ADDITIONAL SMALL CAUSES JUDGE
AND ACMM, COURT OF SMALL CAUSES, MEMBER,
MACT-12, BENGALURU (SCCH-12), 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 5.10.2021 passed by MACT,
Bangalore in MVC 4055/2019.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 13.3.2019 when the
claimant was proceeding in canter goods lorry bearing
registration No.KA-14-B-9828 on NH-209 road,
Kibbanahalli Hobli, Tumkur District, at that time,
goods lorry bearing registration No.KA-05-AB-0966
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 respondent No.2
appeared through counsel and filed written statement
in which the averments made in the petition were
denied.
The respondent No.1 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.Nagaraju was examined as
PW-2 and another witness was examined as PW-3 and
got exhibited documents namely Ex.P1 to Ex.P19. 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.318,600/- 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, even though the claimant claims that he
was working as driver and earning Rs.25,000/- 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-2. The doctor in his evidence has stated that
the claimant has suffered permanent disability of 38%
to particular limb and 13% to whole body. Due to the
accident, the claimant has sustained grievous injuries.
He was treated as inpatient for a period of 18 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.25,000/- 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, 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.25,000/- 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 2019 the notional
income has to be taken at Rs.14,000/- p.m.
As per wound certificate, the claimant has
sustained lateral condyle fracture of right tibia. The
doctor in his evidence has stated that the claimant has
suffered permanent disability of 38% to particular
limb and 13% to whole body. 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 13%. The
claimant is aged about 55 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.240,240/- (Rs.14,000*12*11*13%) 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 3 months. Therefore, the claimant is entitled for
compensation of Rs.42,000/- (Rs.14000*3 months)
under the head 'loss of income during laid up period'.
The claimant was treated as inpatient for more
than 18 days in the hospital and thereafter, has
received further treatment. Hence, I am inclined to
enhance the compensation awarded under the head of
'conveyance, nourishment and attendance charges'
from Rs.7,000/- to Rs.15,000/-.
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.30,000/- 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 50,000 50,000
Medical, conveyance and 7,000 15,000
attendant charges
Loss of income during 30,000 42,000
laid up period
Loss of amenities 30,000 50,000
Loss of future income 171,600 240,240
Future medical expenses 30,000 30,000
Total 318,600 427,240
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.427,240/-.
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
