Karnataka High Court
Sri Venkatesh K C vs Magma Hdi General Insurance Co. ... on 6 June, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No. 4405 OF 2018 (MV)
BETWEEN:
SRI. VENKATESH K.C.
S/O LATE CHELUVAIAH,
AGED ABOUT 33 YEARS,
R/AT MALEGOWDARA ROAD,
BESAGARAHALLI,
MANDAYA-571 419.
...APPELLANT
(BY SRI. GURUDEV PRASAD K.T., ADVOCATE)
AND:
1. MAGMA HDI GENERAL INSURANCE CO. LTD.,
T.P.CLAIMS HUB, NO.36,
HM ASTRID, 1ST FLOOR, J.C.ROAD,
NEAR MINERVA CIRCLE,
BENGALURU-560 002
BY ITS MANAGER
2. M/S. SHREE CHAKRA ENGINEERING
ENTERPRISES,
NO.23/242, THAMMANAYAKANAHALLI
ANEKAL, BENGALURU
2
RURAL DISTRICT-562 102
...RESPONDENTS
(BY SRI. B.PRADEEP ADVOCATE FOR R1
SRI. K.VISHWANATHA ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173 (1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
16.02.2018 PASSED IN MVC NO.6684/2016 ON THE
FILE OF THE 8TH ADDITIONAL SMALL CAUSE JUDGE &
33RD ACMM, MEMBER, MACT, (SCCH-5), BENGALURU,
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 16.02.2018 passed
by the Court of VIII Additional Small Causes Judge
and the Motor Accident Claims Tribunal, Bengaluru in
M.V.C. No. 6684/2016.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 11.03.2015, at about 1.30
a.m., the claimant was proceeding as a driver on Tata
Sumo bearing registration No.KA-53-B-3749 on NH-
7, Hosur main road, Singasandra, Bengaluru, at that
time, near Yashas Complex, Singasandra another Tata
Sumo of M.K. Travels bearing registration No.KA-08-
7920 was standing on the extreme left side of the said
road due to break down. The claimant stopped his
vehicle behind the said break down vehicle to enquire
about the incident, at that time, a tipper lorry bearing
registration No.KA-51-B-4215 being driven by its
driver at a high speed and in a rash and negligent
manner, dashed against the claimant and also dashed
against both Tata Sumo vehicles. 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 respondents
appeared through counsel and filed written statement
in which the averments made in the petition were
denied.
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, Dr. K.M. Kumaraswamy was
examined as PW-2 and Dr. H.B. Shivakumar as PW-3
and got exhibited documents namely Ex.P1 to Ex.P21.
On behalf of the respondents, neither any witness was
examined nor any document was produced. 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.3,18,000/- along with
interest at the rate of 9% p.a. (excluding future
medical expenses of Rs.25,000/-) 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 Driver work and earning Rs.40,000/- per
month, but the Tribunal has taken the notional income
as merely as Rs.6,000/- per month.
Secondly, PW-2-Dr. K.M. Kumaraswamy, Dental
Surgeon has stated in his evidence that the claimant
has suffered disability of 25% to whole body and PW-
3-Dr. H.B.Shivakumar, Orthopaedic Surgeon has
deposed the functional disability and assessed physical
disability to an extent of 14.26% to the whole body.
But the Tribunal has erred in taking the whole body
disability at only 15%.
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 granted by the Tribunal under the
heads of 'loss of amenities', 'pain and sufferings' and
other heads are on the lower side.
Fourthly, the tribunal has failed to grant
compensation under the head of 'loss of income
during laid up period'. 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.40,000/- 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-Dr. K.M. Kumaraswamy, Dental
Surgeon has stated in his evidence that the claimant
has suffered disability of 25% to whole body and
PW-3-Dr. H.B.Shivakumar, Orthopaedic Surgeon has
deposed the functional disability and assessed physical
disability to an extent of 14.26% to the whole body
and he has not assessed the limb disability.
Therefore, the Tribunal considering the injuries
sustained by the claimant, has rightly assessed the
whole body disability at 15%.
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.
Fourthly, he contended that the interest awarded
by the tribunal at 9% is on higher side, contrary to
the judgment of a Division Bench of this Court in the
case of JOYEETA BOSE -V- UNITED INSURANCE
CO. 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.40,000/- 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 2015, the notional income has to be
taken at Rs.9,000/- p.m.
As per wound certificate, the claimant has
sustained fracture right zygomatic arch, fracture lower
end of the right fibula, for which he undergone CRIF
with melleolar screw to right malleol. PW-2-Dr. K.M.
Kumaraswamy, Dental Surgeon has stated in his
evidence that the claimant has suffered disability of
25% to whole body and PW-3-Dr. H.B.Shivakumar,
Orthopaedic Surgeon has deposed the functional
disability and assessed physical disability to an extent
of 14.26% to the whole body. Therefore, taking into
consideration the deposition of the doctors, PW-2 and
PW-3 and injuries mentioned in the wound certificate,
I am of the opinion that the whole body disability can
be assessed at 20%. The claimant is aged about 31
years at the time of the accident and multiplier
applicable to his age group is '16'. Thus, the claimant
is entitled for compensation of Rs.3,45,600/-
(Rs.9,000/-*12*16*20%) 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.27,000/- (Rs.9,000/-*3 months)
under the head 'loss of income during laid up period'.
The claimant was treated as inpatient for 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.10,000/- 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 50,000 50,000
Medical expenses 45,000 45,000
Food, nourishment, 15,000 15,000
conveyance and
attendant charges
Loss of income during - 27,000
laid up period
Loss of amenities 10,000 40,000
Loss of future income 1,73,000 3,45,600
Future medical expenses 25,000 25,000
Total 3,18,000 5,47,600
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.5,47,600 /-. In view of the law laid down by a
Division Bench of this Court in the case of JOYEETA
BOSE (supra), the rate of interest awarded by the
Tribunal at 9% is reduced to 6% p.a.
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 excluding
interest for the compensation awarded under the head
of 'future medical expenses'.
Sd/-
JUDGE
JY
