Karnataka High Court
Sri Sharanna Basawa vs Bajaj Allianz General on 7 June, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.6959 OF 2018 (MV-I)
BETWEEN:
SRI SHARANNA BASAWA @
SHARANA BASAWA,
S/O MOMAPPA NAIKAL,
AGED ABOUT 24 YEARS,
R/AT YADGIR, YADGIR TALUK
AND DISTRICT,
KARNATAKA.
...APPELLANT
(BY SRI. SHRIPAD V. SHASTRI, ADVOCATE)
AND:
1. BAJAJ ALLIANZ GENERAL
INSURANCE CO. LTD.,
GOLDEN HEIGHTS, 4TH FLOOR,
NO.1/2, 59TH C CROSS,
4TH MAIN, RAJAJINAGAR,
BENGALURU.
BY ITS MANAGER.
2. ANITA GEORGE
W/O SHAJI JOSEPH, MAJOR
R/AT NO.D4-304,
2
SHREE PRAKRUTHI APPTS,
THINDLU ROAD, KODIGEHALLI,
BENGALURU - 560 097.
...RESPONDENTS
(BY SRI. H.N.KESHAVA PRASHANTH, ADV. FOR R1;
NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
13.06.2018 PASSED IN MVC NO.138/2017 ON THE
FILE OF XVI ADDITIONAL JUDGE, MEMBER, MACT,
COURT OF SMALL CAUSES, (SCCH-14) 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 the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the
Act') has been filed by the claimant being aggrieved
by the judgment and decree dated 13.06.2018 passed
by XVI Additional Judge, Court of Small Causes and
M.A.C.T, Bengaluru (hereinafter referred to as
'Tribunal') in MVC No.138/2017, whereby the Tribunal
has granted compensation of Rs.4,40,500/- along
with interest at the rate of 9% p.a.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 26.11.2016 the claimant was
riding his motorcycle bearing registration No.KA-02-
HE-9862, at that time, a car bearing registration
No.KA-50-N-3425 came from opposite direction at a
high speed in a rash and negligent manner and
dashed to the vehicle 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 No.1
appeared through its counsel and filed objections
denying the entire petition averments regarding age,
occupation and income of the petitioner as well as
occurrence of accident. Hence, sought for dismissal of
the petition.
The respondent No.2 remained absent and was
placed ex parte.
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 two witnesses were examined as PW-2
and PW-3 and got exhibited documents, namely,
Exs.P.1 to Ex.P.18. The respondents have not led any
evidence on their behalf. The Tribunal further held
that the claimant is entitled to compensation of
Rs.4,40,440/- along with interest at the rate of 9%
p.a. and directed respondent Nos.1 and 2 to deposit
the compensation amount along with interest jointly
and severally. Being aggrieved, this appeal has been
filed.
6. Sri. Shripad V.Shastri, 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 at
42.58% to the right lower limb and 21.42% to the
whole body. Considering the injuries suffered by the
claimant, the Tribunal has assessed the whole body
disability at 14% 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 34 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', 'pain and sufferings' and
other incidental charges is on the lower side. Hence,
he sought for allowing the appeal.
7. On the other hand, Sri.H.N.Keshav
Prashanth, 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 month, he has not
produced any documents to establish the same.
Therefore, the notional income assessed by the
Tribunal is just and reasonable.
Secondly, even though the doctor has assessed
whole body disability at 21.42%, taking into
consideration of limb disability and considering the
injuries suffered by the claimant, the whole body
disability assessed by the Tribunal at 14% is just and
reasonable.
Thirdly, considering the injuries sustained by the
claimant and the evidence of doctor, the
compensation awarded by the Tribunal under the
heads 'pain and suffering', 'loss of amenities' and
other incidental charges are just and reasonable.
Lastly, he has contended that contrary to the
judgment of the Division Bench of this Court in the
case of MS.JOYEETA BOSE AND OTHERS vs.
VENKATESHAN.V AND OTHERS (MFA 5896/2018 and
connected matters disposed of on 24.8.2020), the
claimant is entitled for interest at the rate of 6% p.a.,
but the Tribunal has granted interest at the rate of 9%
p.a., which is on the higher side. 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
suffered injuries in a road traffic accident which
occurred on 26.11.2016 due to rash and negligent
driving of the driver of car bearing Registration No.KA-
50-N-3425. Due to the accident, the claimant has
suffered the following injuries:
"1. Fracture of right tibial plateau intra
articular.
2. Fracture of upper end of right tibia."
He has examined Dr.S.Ramachandra as PW.3. In
his evidence he has deposed that claimant has
suffered 42.58% disability of right lower limb which is
about 21.42% to the whole body. Particular limb
disability assessed by the doctor is at 42.58% and
1/3rd portion of the limb disability has to be taken for
assessing whole body disability. Therefore, the whole
body disability assessed by the Tribunal at 14% is just
and reasonable. Even though the claimant has claimed
that he was earning Rs.15,000/- p.m., but he has not
produced any documents to establish the same.
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. At the time of the accident,
the claimant was aged about 23 years and multiplier
applicable to his age group is '18'. Thus, the claimant
is entitled for compensation of Rs.2,87,280/-
(Rs.9,500/- X 12 X 18 X 14%) under the head 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 heads
'pain and suffering' from Rs.30,000/- to Rs.50,000/-,
'loss of amenities' Rs.30,000/- to Rs.40,000/- and
'loss of income during laid up period' for a period of
four months at the rate of Rs.9,500/- per month. The
compensation awarded under the head 'future medical
expenses' at Rs.20,000/- is just and reasonable and
enhanced compensation amount carries interest at the
rate of 6% p.a.
10. Thus, the claimant is entitled to the
following compensation:
As awarded As awarded
Compensation by the by this Court
under different Tribunal (Rs.)
Heads (Rs.)
Loss of future Rs.1,81,440/ Rs.2,87,280/-
income due to
permanent disability
Pain and sufferings Rs.30,000/- Rs.50,000/-
Nourishment, Rs.20,000/- Rs.20,000/-
conveyance and
attendant charges
Medical expenses Rs.1,35,000/- Rs.1,35,000/-
Loss of amenities Rs.30,000/- Rs.40,000/-
Loss of income Rs.24,000/- Rs.38,000/-
during the period of
treatment and bed
rest
Future medical Rs.20,000/- Rs.20,000/-
expenses
Total Rs.4,40,440/- Rs.5,90,280/-
11. In the result, the appeal is allowed in
part. The judgment of the Claims Tribunal is modified.
The claimant is entitled to total compensation of
Rs.5,90,280/-.
The Insurance Company is directed to deposit
the compensation amount along with interest @ 9%
p.a. within a period of six weeks from the date of
receipt of copy of this judgment.
The enhanced compensation amount carries
interest @ 6% from the date of filing of the claim
petition till the date of realization.
In view of disposal of the appeal, pending
applications are disposed of.
Sd/-
JUDGE
ssb
