Prakasha vs Prakash H R
2022 Latest Caselaw 8247 Kant

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 07TH DAY OF JUNE 2022

                     BEFORE

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

          MFA No.3653 OF 2018 (MV)

BETWEEN:

PRAKASHA
S/O CHANNEGOWDA
AGED 47 YEARS
GAVENAHALLI VILLAGE
KASABA HOBLI
HASSAN DISTRICT-573201.

                                    ...APPELLANT
(By SMT. KAVITHA H C, ADV.)

AND:

1.   PRAKASH H R
     S/O LATE RAMACHANDRA
     ADIYLU VILLAGE
     BARTHUR POST
     ALUR TALUK

     (OWNER OF BIKE BEARING
     NO.KA 46 H 6508)

2.   THE MANAGER
     HDFC ERGO GENERAL
                               2



     INSURANCE COMPANY LIMITED,
     REGIONAL OFFICE, 5TH FLOOR
     SHANKARANARAYANA BUILDING
     M G ROAD
     BANGALORE.
                                ..RESPONDENTS

(BY SRI PRADEEP.B, ADV., FOR R-2,
 NOTICE TO R-1 IS DISPENSED WITH)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
03.11.2017 PASSED IN MVC NO.993/2015 ON THE
FILE OF THE 2ND ADDITIONAL DISTRICT & SESSIONS
JUDGE & ADDITIONAL MACT, HASSAN, 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 03.11.2017 passed

by the Court of II Additional District and Sessions

Judge & Additional M.A.C.T., at Hassan (hereinafter

referred to as 'Tribunal') in MVC No.993/2015,

whereby the Tribunal has granted compensation of

Rs.4,66,600/- along with interest at the rate of 6%

p.a.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 21.07.2014 at about 5.30

p.m. on Magge-Rayarakoppalu Road in front of St.

Mary's School, he was attending to change the

punctured wheel. At that time, the rider of bike

bearing No.KA-46-H-6508 came in high speed in a

rash and negligent manner, dashed to the petitioner.

Due to the impact, the petitioner had sustained

grievous injuries to his back bone and also left leg.

Immediately, he was shifted to the hospital.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he had spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent riding of the offending vehicle by

its rider.

4. On service of notice, the respondent No.1

did not appear before the Tribunal inspite of service of

notice and was placed ex-parte.

Respondent No.2 appeared through counsel and

filed objections denying the entire petition averments

regarding age, occupation and income of the

petitioner as well as occurrence of accident. 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 examined

himself as PW-1 and Dr.Ravi was examined as PW-2

and got exhibited documents, namely, Exs.P1 to

Ex.P.14 and Exs.C1 to C3. On behalf of the

respondents, two witness were examined as RW-1 and

RW-2 and got exhibited documents namely Ex.R1 to

Ex.R8. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place

on account of rash and negligent riding of the

offending vehicle by its rider, as a result of which, the

claimant sustained injuries. The Tribunal further held

that the claimant is entitled to a compensation of

Rs.4,66,600/- along with interest at the rate of 6%

p.a. and directed respondent No.2 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 earning Rs.15,000/- per month, the Tribunal

while assessing the monthly income of the claimant

has assessed the income of the claimant at Rs.6,000/-

per month, which is on the lower side.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

32% to the left leg and 30% to the vertebra.

Considering the injuries suffered by the claimant, the

Tribunal has rightly assessed the whole body disability

at 20%, which is on the lower side.

Lastly, due to the accident, the claimant has

sustained grievous injuries. He was treated as an

inpatient for a period of 60 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 awarded by the Tribunal under the

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

on the lower side. He further submits that the Tribunal

has failed to award compensation under the head 'loss

of income during the 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.15,000/- per annum, he has not

produced any documents to establish the same.

Therefore, the Tribunal has rightly assessed the

notional income of the claimant at Rs.6,000/- p.m.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability at

32% to the left leg and 30% to the vertebra.

Considering the injuries suffered by the claimant, the

Tribunal has rightly assessed the whole body disability

at 20%.

Lastly, considering the documentary evidence

and the injuries suffered by the claimant, the overall

compensation awarded by the Tribunal is just and

reasonable. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident which

occurred due to rash and negligent riding of the

offending vehicle by its rider.

Due to that accident, the claimant has suffered

the following injuries:

"1. Swelling and deformity of leg.

2. Swelling and pain of back."

The claimant claims that he was earning

Rs.15,000/- per month but he has not produced any

documents to prove her 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 2014, the notional income has to be

taken at Rs.8,500/- p.m.

They have examined the doctor as PW.2. In his

evidence, he has deposed that the claimant suffered

the disability at 32% to the left leg and 30% to the

vertebra. Considering the evidence of doctor and

avocation of the claimant, I am of the considered

opinion that the whole body disability can be assessed

at 22%. The claimant was aged about 45 years at the

time of the accident and multiplier applicable to his

age group is '14'. Thus, the claimant is entitled for

compensation of Rs.3,14,160/- (Rs.8,500/- X 12 X 14

X 22%) on account of 'loss of future income'.

Due to the accident, the claimant has suffered

the above said injuries. He has suffered lot of pain

during treatment and has to suffer disability and

unhappiness through out his life. Considering the

evidence of doctor and the wound certificate, I am

inclined to enhance the compensation under the head

'loss of comfort' from Rs.20,000/- to Rs.40,000/- and

'loss of income during laid up period' for a period of

four months at the rate of Rs.8,500/- per month.

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.) Loss of income due to 2,01,600/- 3,14,160/- disability Medical expenses 1,40,000/- 1,40,000/- Pain and sufferings 60,000/- 60,000/- Conveyance charges 5,000/- 5,000/- Attendant charges 5,000/- 5,000/- Food and nourishment 5,000/- 5,000/-

charges




Loss of comfort                  20,000/-        40,000/-
Loss of income during             -              34,000/-
laid up period
Future medical expenses         30,000/-         30,000/-
               Total         3,07,960/-       6,33,160/-

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 6,33,160/-.

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

ssb