Karnataka High Court

Vishwanatha C vs Iffco Tokio Gen Ins Co Ltd 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.1590 OF 2021(MV)

BETWEEN

VISHWANATHA C
S/O CHINNAPPAIAH
AGED ABOUT 27 YEARS
R/AT NO.113
AVALAHALLI
SINGHANAYAKANAHALLI POST
BENGALURU NORTH TALUK-560064

                                    ...APPELLANT

(BY SRI.SHANTHARAJ K., ADV.)

AND

1 . IFFCO TOKIO GEN. INS. CO. LTD
    BY ITS MANAGER
    NO.41, 2ND FLOOR
    VISHNU COMPLEX
    LAVELLE ROAD
    BENGALURU-560 001.

2 . ABDUL NAZEER A M
    S/O ABDUL KHADAR
    AGED MAJOR
                          2




   R/AT NO.1235
   GANDHINAGAR
   2ND CROSS, 1ST STREET
   YELAHANKA
   BENGALURU-560064.

                                    ...RESPONDENTS

(BY SRI. B C SHIVANNE GOWDA, ADV. FOR R1:
NOTICE TO R2 IS DISPENSED WITH
VIDE ORDE DATED: 21.07.2022)

    THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 16.03.2019 PASSED IN MVC NO.4705/2017
ON THE FILE OF THE VII ADDITIONAL SCJ AND XXXII
ACMM, MEMBER, MACT-3, BENGALURU, 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 16.3.2019 passed by MACT,

Bengaluru in MVC 4705/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 5.2.2017 when the claimant

was proceeding on motorcycle bearing registration

No.KA-50-V-2848 on DB Pura Main road, near

Kendriya Vidyalaya, at that time, Honda Activa

bearing registration No.KA-50-U-1501 being ridden by

its rider 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 riding of the offending vehicle by

its rider.

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.

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.S.A.Somashekar was examined as PW-3

and got exhibited documents namely Ex.P1 to Ex.P21.

On behalf of the respondents, two witnesses were

examined as RWs-1 and 2 and got exhibited

documents namely Ex.R1 to Ex.R2. The Claims

Tribunal, by the impugned judgment, inter alia, held

that the accident took place on account of rash and

negligent riding of the offending vehicle by its rider, as

a result of which, the claimant sustained injuries. The

Tribunal further held that the claimant is entitled to a

compensation of Rs.316,434/- 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 part time work and earning Rs.12,000/- per

month, but the Tribunal has taken the notional income

as merely as Rs.4,000/- per month.

Secondly, the claimant has examined the doctor

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

the claimant has suffered permanent disability of 32%

to particular limb and 16% to whole body. But the

Tribunal has taken the whole body disability at 12%,

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 5 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 permanent disability of

36% to particular limb and 16% to whole body. The

Tribunal considering the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 12%.

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 riding of the offending

vehicle by its rider.

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 fracture of distal radius ulna, abrasion over

face, abrasions all over body. The doctor in his

evidence has stated that the claimant has suffered

permanent disability of 36% to particular limb and

16% 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 12%. The

claimant is aged about 23 years at the time of the

accident and multiplier applicable to his age group is

'18'. Thus, the claimant is entitled for compensation of

Rs.285,120/- (Rs.11,000*12*18*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 3 months. Therefore, the claimant is entitled for

compensation of Rs.33,000/- (Rs.11,000*3 months)

under the head 'loss of income during laid up period'.

The claimant was treated as inpatient for more

than 5 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 'loss of

amenities' from Rs.20,000/- to Rs.60,000/-.

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 40,000 Medical expenses 129,754 129,754 Loss of amenities, food, 20,000 60,000 nourishment, conveyance and attendant charges Loss of income during 8,000 33,000 laid up period Loss of future income 103,680 285,120 Future medical expenses 15,000 15,000 Total 316,434 562,874

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.562,874/-.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 8%

p.a. (enhanced amount shall carry interest at 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 21.7.2022 passed by

this Court, the claimant is not entitled for interest for