Karnataka High Court

Sri. Basavaraju K.B vs Sri. Gururaja on 30 June, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 30TH DAY OF JUNE 2022

                        BEFORE

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

              MFA No.1379 OF 2019(MV)

BETWEEN:

SRI. BASAVARAJU K.B.
S/O SRI LATE BEEMEGOWDA
AGED ABOUT 60 YEARS
R/O KANCHANAHALLI VILLAGE
KANAKAPURA TALUK
RAMANAGAR DISTRICT-571511.
                                         ...APPELLANT
(BY SRI.SATHISHA T., ADV. )

AND

1.     SRI. GURURAJA
       S/O LATE KRISHNAPPA MAJOR
       R/O NO.88
       HOSAKERE VILLAGE
       MADDUR TALUK
       MANDYA DISTRICT-571419.

2.     UNIVERSAL SOMPO GENERAL
       INSURANCE COMPANY LTD.,
       K.V.D. TOWERS
       NO.7/3, 2ND FLOOR
       OPP 100 FEET ROAD
       OLD MADRAS ROAD
       INDRANAGAR
       BENGALURU-560033.
                           2



                                       ...RESPONDENTS
(BY SRI.B.PRADEEP, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT   AGAINST     THE   JUDGMENT    AND    AWARD
DATED:06.9.2018 PASSED IN MVC NO.484/2017 ON THE
FILE OF THE VIII ADDITIONAL SCJ & XXXIII ACMM,
MEMBER,    MACT,   BENGALURU    [SCCH-5],  PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSIONS, 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 and decree dated 06.09.2018 passed

by VIII Additional SCJ & XXXIII ACMM Member-MACT,

Bengaluru in MVC No.484/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 28.11.2016 at about 12.00

P.M., the claimant was proceeding along with his wife

as a rider on motorcycle bearing Registration No.KA-

42-Q-3421 on Halagur-Maddur Main road from

Kanchanahalli Village towards Maddur, when they

reached near Arunahalli Gate, at that time, TATA Ace

bearing Registration No.KA-11-A-9482 which was

coming from Maddur i.e. opposite direction by its

driver in a rash and negligent manner and dashed

against the claimant's motorcycle. 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 Nos.1

and 2 have appeared through counsel and filed written

statement in which the averments made in the

petition were denied. The age, avocation and income

of the claimant and the medical expenses are denied.

It was pleaded that the quantum of compensation

claimed by the claimant is exorbitant. Hence, they

sought for dismissal of the petition.

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.S.A.Somashekara was

examined as PW-4 and got exhibited documents

namely Ex.P1 to Ex.P22. On behalf of the

respondents, neither any witness was examined nor

got exhibited documents. 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.4,01,000/- along with interest at

the rate of 9% p.a. and directed the Insurance

Company to deposit the compensation amount along

with interest. Being aggrieved, this 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 agriculture work and milk vending and

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

taken the notional income as merely as Rs.7,000/- per

month.

Secondly, PW-4, the doctor has stated in his

evidence that the claimant has suffered disability of

49% to right lower limb and 25% to whole body. But

the Tribunal has erred in taking the whole body

disability at only 12%. He further deposed that due to

the accident, he has undergone surgery and he

required Rs.35,000/- for removal of implants. But the

Tribunal has granted only Rs.10,000/- towards 'future

medical expenses' which is on lower side.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 31 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 granted by the Tribunal under the

heads of 'loss of amenities', 'pain and sufferings' and

other heads 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, PW-4 the doctor has stated in his

evidence that the claimant has suffered disability of

49% to right lower limb and 25% to whole body. The

Tribunal considering the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 12%.

Thirdly, even though the doctor has deposed

that the claimant requires Rs.35,000/- for removal of

implants, he has not produced any estimation in

respect of cost of removal of implants. Therefore, the

Tribunal has rightly granted Rs.10,000/- towards

'future medical expenses'.

Fourthly, 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 compensation.

Lastly, in view of judgment of the Division Bench

of this Court in the case of MS.JOYEETA BOSE AND

OTHERS vs. VENKATESHAN.V AND OTHERS (MFA

5896/2018 and connected matters disposed of on

24.8.2020), the claimants are entitled for 6% interest

but the Tribunal has granted 9% interest is on the

higher side. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the records.

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, the

notional income has to be assessed as per the

guidelines issued by the Karnataka State Legal

Services Authority. Since the accident has taken place

in the year 2016, the notional income has to be taken

at Rs.9,500/- p.m.

As per wound certificate, the claimant has

sustained post traumatic compound type III B fracture

of lateral femoral condyle, lateral tibial condyle of

patella right side with head injury, for which he had

undergone ORIF with distal femoral locking plate,

tibial condylar LCP and cannulated cancellus screw to

patella on right side. PW-4, the doctor has stated in

his evidence that the claimant has suffered disability

of 49% to right lower limb and 25% to whole body.

Therefore, taking into consideration the deposition of

the doctor, PW-4 and injuries mentioned in the

wound certificate, I am of the opinion that the whole

body disability can be assessed at 16%. The claimant

is aged about 58 years at the time of the accident and

multiplier applicable to his age group is '9'. Thus,

the claimant is entitled for compensation of

Rs.1,64,160/- (Rs.9,500*12*9*16%) 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.28,500/- (Rs.9,500*3 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 31 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.10,000/- to Rs.40,000/-.

The claimant has examined the doctor PW-4,

who in his testimony has stated that the claimant

required about Rs.35,000/- towards 'future medical

expenses'. Hence, I am inclined to enhance the

compensation awarded by the Tribunal under the head

of 'future medical expenses' from Rs.10,000/- to

Rs.15,000/-.

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 expenses 2,62,000 2,62,000 Food, nourishment, 15,000 15,000 conveyance and attendant charges Loss of income during 7,000 28,500 laid up period Loss of amenities 10,000 40,000 Loss of future income 91,000 164,160 Future medical expenses 10,000 15,000 Total 4,45,000 5,74,660 Total 90% 4,00,500 5,17,194 *The Tribunal has rounded of the award amount from Rs.4,00,500/- to Rs.4,01,000/-

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.5,17,194/- as against Rs.4,01,000/- 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

90% of the compensation amount i.e. Rs.5,17,194/-

along with interest @ 9% p.a. (the enhanced