Anusha vs H S Surendra
2022 Latest Caselaw 8082 Kant

                           1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 3RD DAY OF JUNE 2022

                        BEFORE

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

              MFA No.8727 OF 2018 (MV)

BETWEEN:

Anusha,
D/o Shankaregowda,
Aged about 19 years,
R/at No.293, 1st Main,
Datta Nagara, Mysuru - 570 025.
                                             ... Appellant
(By Sri.Mahadeva Swamy.P., Advocate)

AND:

1. H.S.Surendra,
   S/o Suryanarayana,
   Aged about 36 years,
   Door No.WA-132,
   Sewage Farm road, Kankagiri,
   Mysuru City - 570 015.

2. The Divisional Controller,
   KSRTC, Chamarajanagara Division,
   Chamarajanagar - 14.
                                         ... Respondents
(By Smt.S.Nirmala, Advocate 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 04.07.2018 passed
in MVC No.1097/2015 on the file of the Judge, Additional
                             2



Court of Small Causes, Mysuru, as a Presiding Officer,
Motor Accidents claims Tribunal, Senior Civil Judge,
Mysuru, partly allowing the claim petition for compensation
and seeking enhancement of compensation.

      This MFA, coming on for Hearing, this day, this
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 04.07.2018 passed

by MACT, Mysuru in MVC No.1097/2015.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 21.01.2015 at about 6.00

a.m. the claimant was proceeding on her bicycle on

Nanjangud road to attend SSLC tuition classes. When

she reached near GAnapathi Sachidananda Ashrama,

at that time, a bus bearing registration No.KA-57/F-

878 being driven by its driver at a high speed and in a

rash and negligent manner, dashed to the bicycle 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 she 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 appeared through counsel and filed separate

written statements 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 petition itself is false

and frivolous in the eye of law. It was further pleaded

that the accident was due to the negligence of the

claimant herself. It was further pleaded that the

driver of the offending vehicle was holding a valid

driving licence as on the date of the accident. 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 guardian of the claimant

was examined as PW-1, Dr.Vinayak I Kadlimatti was

examined as PW-2 and the claimant herself was

examined as PW-3 and got exhibited documents

namely Ex.P1 to Ex.P26. On behalf of the

respondents, one witness was examined as RW-1 and

no documents were marked. 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.5,68,400/- along with interest at

the rate of 6% p.a. and directed the Corporation 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, at the time of the accident the claimant

was aged about 16 years, she was studying in SSLC .

Due to the accident she has suffered grievous injuries.

She has examined the doctor who has assessed the

disability of 29%. Since the injury suffered by the

claimant is head injury, the neurological surgeon has

rightly assessed the disability suffered by the claimant

as 29%. The Tribunal has erred in considering the

whole body disability as 10%.

Secondly, the claimant is a very bright student

and had a very good future. The loss of future income

has to be assessed considering the notional income.

In support of his contention he has relied on the

judgment of the Hon'ble Apex Court in the case of

KAJAL vs. JAGDISH CHAND AND OTHERS reported

in AIR 2020 SC 776.

Thirdly, due to the accident the claimant has

suffered grievous injuries, she was unable to continue

her studies, she has lost one academic year and she

has suffered lot of pain during treatment and she has

to suffer the disability and unhappiness throughout

her life. She was inpatient for a period of 40 days.

Considering the same, the compensation granted by

the Tribunal under the heads of 'pain and sufferings',

'loss of amenities' and other heads are on the lower

side.

Fourthly, since the claimant has suffered head

injury, she has been taken care of by an attender.

The Tribunal has not awarded any compensation

under the head 'attendant charges'.

Lastly, due to the injuries suffered in the

accident there is disfigurement. The Tribunal has not

awarded any compensation under the head 'loss of

marriage prospects'. Hence, he sought for allowing

the appeal.

7. On the other hand, the learned counsel for

the Corporation has raised the following counter

contentions:

Firstly, even though the claimant contends that

the doctor has assessed the disability as 29%,

considering the injuries suffered by the claimant and

considering the age, the Tribunal has rightly assessed

the whole body disability as 10%.

Secondly, there is no loss of academic year since

the claimant has appeared for the examination in the

year 2016 and she has passed SSLC and she has

continued her studies. Therefore, the Tribunal has

rightly not granted any compensation for 'future loss

of earnings'.

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 compensation. 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.

Due to the accident the claimant has suffered

severe head injury with diffuses axonal injury. She

has examined the doctor Vinayak I.Kadlimatti. In his

evidence he has deposed that the claimant has

suffered 29% disability. Since the injury suffered by

the claimant is head injury, considering the evidence

of the doctor and considering the wound certificate, I

am of the opinion that the whole body disability has to

be assessed at 15%. The Hon'ble Apex Court in the

case of KAJAL (supra) has held that in case of

minors, who are students, their notional income has to

be assessed as per the salary of the skilled workman.

Hence, 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 2015, the notional income has to be

taken at Rs.9,000/- p.m. The claimant was aged

about 16 years at the time of the accident and

multiplier applicable to her age group is '18'. Thus,

the claimant is entitled for compensation of

Rs.2,91,600/- (Rs.9,000*12*18*15%) on account of

'loss of future income'.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. She

was treated as inpatient for more than 40 days in the

hospital and thereafter, has received further

treatment. She has suffered lot of pain during

treatment and she has to suffer with the disability and

unhappiness throughout her life. Considering the

same, I am inclined to enhance the compensation

awarded by the Tribunal under the head the 'loss of

amenities' from Rs.40,000/- to Rs.50,000/-. The

claimant is entitled for Rs.15,000/- towards 'Food and

attendant charges' and Rs.50,000/- towards 'loss of

marriage prospects'.

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 3,42,000 3,42,000 Food and attendant 0 15,000 charges Loss of income during 50,000 50,000 laid up period Loss of amenities 40,000 50,000 Loss of future income 86,400 2,91,600 Loss of marriage 0 50,000 prospects Total 5,68,400 8,48,600

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.8,48,600/- as against Rs.5,68,400/- 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

Cm/-