Karnataka High Court
Thabaraq Pasha vs Kumaraswamy T H on 2 June, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.4566 OF 2018(MV)
BETWEEN:
THABARAQ PASHA,
S/O ABDUL JAMSHEED,
AGED ABOUT 25 YEARS,
VISHWANATHA NAGARA,
HUNASINAKERE LAYOUT,
HASSAN.
...APPELLANT
(BY SMT. KAVITHA.H.C., ADVOCATE)
AND:
1. KUMARASWAMY T H,
S/O HANUMEGOWDA.P.T.,
#65/B, RAMESHWARA NAGARA,
DODDAPURA POST, KASABA HOBLI,
HASSAN TALUK - 573 201.
2. THE MANAGER,
SHRIRAMA GENERAL
INSURANCE COMPLANY LIMITED.,
NO.302, 3RD FLOOR,
S & S CORNER BUILDING,
FLAT NO.48, HOSPITAL ROAD,
OPPOSITE TO BORING & LADY
CURZON HOSPITAL,
SHIVAJINAGARA,
BANGALORE.
2
...RESPONDENTS
(BY SRI.B.PRADEEP, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, AGAINST JUDGMENT AND AWARD DATED
09.03.2018, PASSED IN MVC NO.1231/2016, ON THE FILE
OF THE II ADDL. DISTRICT & SESSIONS JUDGE &
ADDL.MACT, HASSAN, 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 and decree dated 09.03.2018 passed
by the II Additional District & Sessions Judge &
Additional MACT, Hassan in MVC No.1231/2016.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 03.04.2016 at about 07.15
P.M. the claimant along with his elder brother was
proceeding in a Bike bearing Registration No.KA-13-
ED-0345 as a pillion rider. When they reached infront
of Ramanjenaya Ceramics, near HP Petrol Bunk,
Arasikere Road, at that time, the driver of Tractor and
Trailer bearing Registration No.KA-34-T-8798-8799
drove the same in a rash and negligent manner and
dashed against the claimant's vehicle. 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 being the owner and the insurer of the
offending vehicle have appeared through counsel and
filed written statement in which the averments made
in the petition were denied.
It was pleaded by the owner It was pleaded by
the owner 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 the rider
of the motorbike and not on the part of the driver of
the offending vehicle. It was further pleaded that the
offending vehicle was insured with Insurance
Company and the policy was in force as on the date of
the accident . Hence, the Insurance Company is liable
to pay the compensation.
It was pleaded by the Insurance Company that
the petition itself is false and frivolous in the eye of
law. It was further pleaded that the accident was due
to the rash and negligent riding of the vehicle by its
rider. The driver of the offending vehicle and the
brother of the claimant also did not have valid driving
licence as on the date of the accident. 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.
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. Abdul Basheer was
examined as PW-2 and got exhibited documents
namely Ex.P1 to Ex.P19. On behalf of the
respondents, neither examined any witness nor
exhibited any document on their behalf. 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.2,42,200/- 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, this
appeal has been filed.
6. Smt. Kavitha H. C., learned counsel for the
claimant has raised the following contentions:
Firstly, even though the claimant claims that he
was doing coolie and carpentry work and earning
Rs.25,000/- per month, but the Tribunal has taken the
notional income as merely as Rs.7,000/- per month.
Secondly, PW-2, the doctor has stated in his
evidence that the claimant has suffered disability of
30% to particular limb. He further deposed that the
claimant requires Rs.30,000/- towards removal of
implants. But the Tribunal has failed to grant any
compensation towards 'future medical expenses'.
Thirdly, due to the accident, the claimant has
sustained grievous injuries. He was treated as
inpatient for a period of 7 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. The Tribunal has
failed to grant any compensation towards 'loss of
income during laid up period'. Hence, he sought for
enhancement of compensation.
7. Per contra, Sri B. Pradeep, 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, the injuries suffered by the claimant
are minor in nature. He was treated as inpatient only
for a period of 7 days. Considering the evidence of the
doctor, 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. Hence, he sought for
dismissal of the appeal.
8. Heard the learned counsel for the parties
and perused the original 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.25,000/- 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 tenderness over right leg, knee and ankle
and after taking X-ray, there was a fracture of right
tibia. PW-2, the doctor has stated in his evidence that
the claimant has suffered disability of 30% to
particular limb. Therefore, taking into consideration
the deposition of the doctor, PW-2 and injuries
mentioned in the wound certificate, the Tribunal has
rightly taken the whole body disability at 10%. The
claimant is aged about 25 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.2,05,200/- (Rs.9,500*12*18*10%) 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 7 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 comfort to future
life or loss of amenities' from Rs.10,000/- to
Rs.40,000/-.
The claimant has examined the doctor PW-2,
who in his testimony has stated that the claimant
requires about Rs.30,000/- for removal of implants.
Considering the same, I am of the opinion that the
clamant is entitled compensation of Rs.10,000/- under
the head of 'future medical expenses'.
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 32,000 32,000
Food, nourishment, 9,000 9,000
conveyance and
attendant charges
Loss of income during 0 28,500
laid up period
Loss of amenities 10,000 40,000
Loss of future income 1,51,200 2,05,200
Future medical expenses 0 10,000
Total 2,42,200 3,64,700
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.3,64,700/- as against Rs.2,42,200/- awarded
by the Tribunal.
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
HA/-
