Karnataka High Court
Dinakara R vs Dileep S on 3 June, 2022
Bench: H T Prasad
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.9610 OF 2018(MV)
BETWEEN:
DINAKARA R,
S/O RANGA NAYAKA,
AGED ABOUT 20 YEARS,
R/AT KUNGATANAHALLI VILLAGE,
VADDANAHALLI POST,
SIRA TALUK,
NOW RESIDING AT 1ST CROSS,
SIRA GATE, TUMAKURU - 572 106.
...APPELLANT
(BY SRI.SHANTHARAJ.K., ADVOCATE)
AND:
1. DILEEP S,
S/O SIDDALINGAMURTHY,
AGED ABOUT 37 YEARS,
R/AT SALAKATTE VILLAGE,
MUDDENAHALLI POST,
C.N.HALLI TALUK,
TUMAKURU DISTRICT - 572 214.
2. UNITED INDIA INSURANCE CO., LTD.,
BY ITS BRANCH MANAGER,
BRANCH OFFICE,
JAYADEVA COMPLEX,
B.H.ROAD, TUMAKURU - 572 101.
...RESPONDENTS
2
(BY SRI.C.SHANKARA REDDY, 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.13.08.2018
PASSED IN MVC NO.961/2017, ON THE FILE OF I
ADDITIONAL DISTRICT JUDGE AND MACT, TUMAKURU,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA COMING ON FOR ADMISSION 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 13.08.2018 passed
by I Additional District Judge and MACT, Tumakuru in
MVC No.961/2017.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 30.07.2017 at about 07.00
P.M. the claimant and his friend was proceeding in a
Hero Honda Splendor Plus motor bike bearing
Registration No.KA-64-L-3115 which was being ridden
by the claimant from Kunagatanahalli Village towards
Turuvekere Town. When they reached near Salakatte
Cross, at that time, the driver of the Maruthi Zen Car
bearing Registration No.KA-17-MB-0006 drove the
same in high speed, rash and negligent manner
dashed against the motorbike 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 Nos.1
and 2 being the owner and 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 that the petition
itself is false and frivolous in the eye of law. 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 and the driver of the
offending vehicle had valid driving licence. Hence, the
Insurance Company is liable to pay the compensation.
It was pleaded by the Insurance Company that It
was further pleaded that the accident was due to the
sole negligence on the part of the rider of the
motorcycle and not on the part of the driver of the
offending vehicle. It was further pleaded that the
driver of the offending vehicle did not possess valid
driving licence as on the date of the accident. The
liability is subject to terms and conditions of the
policy. The age, occupation and income of the
deceased are denied. It was further pleaded that the
quantum of compensation claimed by the claimants 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-1 and Dr. Prasad was examined as
PW-2 and got exhibited documents namely Ex.P1 to
Ex.P13. 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.3,76,112/- 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. Sri Shantharaj. K, learned counsel for the
claimant has raised the following contentions:
Firstly, even though the claimant claims that he
was doing coolie work and earning Rs.15,000/- per
month, but the Tribunal has taken the notional income
as merely as Rs.8,000/- per month.
Secondly, PW-2, the doctor has stated in his
evidence that the claimant has suffered physical
disability of 35% to right upper limb and 12% to
whole body. But the Tribunal has erred in taking the
whole body disability at only 10%.
Thirdly, due to the accident, the claimant has
sustained grievous injuries. He was treated as
inpatient for a period of 11 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. Per contra, Sri C. Shankar Reddy, 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-2, the doctor has stated in his
evidence that the claimant has suffered physical
disability of 35% to right upper limb and 12% to
whole body. The Tribunal considering the injuries
sustained by the claimant, has rightly assessed the
whole body disability at 10%.
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.
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 2017, the notional income has to be taken
at Rs.11,000/- p.m.
As per wound certificate, the claimant has
sustained (Rt) knee is crushed and Multiple abrasion
(Rt) hand forearm. PW-2, the doctor has stated in his
evidence that claimant has suffered physical disability
of 35% to right upper limb and 12% to whole body.
Therefore, taking into consideration the deposition of
the doctor, PW-2 and injuries mentioned in the wound
certificate, I am of the opinion that the whole body
disability can be assessed at 12%. The claimant is
aged about 18 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.2,85,120/- (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 03 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 11 days in the hospital and thereafter, has
received further treatment. Hence, I am inclined to
enhance the compensation awarded under the head of
'attendance charges' from Rs.5,000/- to Rs.12,000/-.
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.25,000/- to Rs.40,000/-.
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 74,312 74,312
Food, nourishment, 25,000 32,000
conveyance and
attendant charges
Loss of income during 24,000 33,000
laid up period
Loss of amenities 25,000 40,000
Loss of future income 1,72,800 2,85,120
Future medical expenses 15,000 15,000
Total 3,76,112 5,19,432
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.5,19,432/- as against Rs.3,76,112/- 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/-
