Vishwanath B vs Sunitha Diana Rodrigues
2022 Latest Caselaw 8275 Kant

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  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.6267 OF 2019(MV)

BETWEEN:

VISHWANATH B,
AGED ABOUT 37 YEARS,
S/O LATE KARUNAKARA BHAT,
R/AT USHA BHAT PANCHAYATH QUTRAESS,
POST INNANJE, INNANJE,
UDUPI TALUK AND DISTRICT - 576 122.
                                        ...APPELLANT
(BY SRI. PRATHEEP.K.C., ADVOCATE)

AND:

1. SUNITHA DIANA RODRIGUES,
   AGED ABOUT 46 YEARS,
   W/O RUDOLPH RODRIGUES,
   R/O B.M.6-202-3B, RICHSUN COTTAGE,
   OPP ANAND INDUSTRIES,
   JANTHRA, BELMAN, KARKALA TALUK,
   UDUPI DISTRICT - 576 111.

2. THE UNITED INDIA INS. CO. LTD.,
   DIVISIONAL MANAGER, DIVISIONAL OFFICE,
   JEWEL PLAZA, 1ST FLOOR,
   MARUTHI VEETHIKA, UDUPI - 576 101.
                                      ...RESPONDENTS
(BY SRI.P.B.RAJU, ADVOCATE FOR R2;
    NOTICE TO R1 IS DISPENSED WITH)
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     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, AGAINST JUDGMENT AND AWARD DATED 14.02.2019
PASSED IN MVC NO.49/2018 ON THE FILE OF II
ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT,
UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

    THIS MFA COMING ON FOR ORDERS 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 14.02.2019.

passed by II Additional Senior Civil Judge & Addl.

MACT, Udupi in MVC No.49/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 18.05.2017 at about 10.30

A.M., the claimant was proceeding towards Belman

side from Shirva side on a motorbike bearing

Registration No.KA-20-EL-3368 along with his brother.

When they reached near Lovely Star Residential

House, the driver of the Car bearing Registration

No.KA-20-MA-4188 drove the same from opposite

direction in a rash and negligent manner and due to

uncontrollable speed, the vehicle came to extreme

right side of the road and dashed the right side of the

motorbike. 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.2

appeared through counsel and filed written statement

in which the averments made in the petition were

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 rash and negligent

riding of the vehicle by the claimant himself. The

liability is subject to terms and conditions of the

policy. The age, avocation and income of the claimant

and the medical expenses are denied. It was further

pleaded that the quantum of compensation claimed by

the claimant is exorbitant. Hence, he sought for

dismissal of the petition.

The respondent No.1 did not appear before the

Tribunal inspite of service of notice 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 himself was

examined as PW-1 and Dr. K. Suresh Shenoy was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P12. On behalf of the

respondents, no witness was examined but got

exhibited documents namely Ex.R1 and Ex.R2. 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.2,38,753/- 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 Pratheep K. learned counsel for the

claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was working as a Data Entry Operator and earning

Rs.15,000/- per month, but the Tribunal has taken the

notional income as merely as Rs.9,000/- per month.

Secondly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 18 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 enhancement of compensation.

7. Per contra, Sri B. Pradeep, 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, the injuries suffered by the claimant

are minor in nature. He was treated as inpatient in the

hospital only for a period of 18 days. 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 crush injury to right foot with comminuted

fracture of 1st metatarsal and loss of lateral two toes

i.e. 4th and 5th toe, undergone fixation and skin

grafting along with soft tissue injury. He has examined

the doctor as PW-2. Considering the evidence of the

doctor and considering the Wound Certificate, the

Tribunal has rightly assessed the whole body disability

at 4%.

The claimant is aged about 36 years at the time

of the accident and multiplier applicable to his age

group is '15'. Thus, the claimant is entitled for

compensation of Rs.79,200/- (Rs.11,000*12*15*4%)

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 6 months. Therefore, the claimant is entitled for

compensation of Rs.66,000/- (Rs.11,000*6 months)

under the head 'loss of income during laid up period'.

The claimant was treated as inpatient for more

than 18 days in the hospital and thereafter, has

received further treatment. Hence, I am inclined to

enhance the compensation awarded under the head of

'conveyance, food, nourishment and attendance

charges' from Rs.6,500/- to Rs.15,000/-.

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.20,000/- to Rs.40,000/- and 'pain and suffering'

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 25,000 40,000 Medical expenses 66,453 66,453 Food, nourishment, 6,500 15,000 conveyance and attendant charges Loss of income during 36,000 66,000 laid up period

Loss of amenities 20,000 40,000 Loss of future income 64,800 79,200 Future medical expenses 20,000 20,000 Total 2,38,753 3,26,653

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.3,26,653/- as against Rs.2,38,753 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 excluding

interest for the compensation awarded under the head

of 'future medical expenses'.

Sd/-

JUDGE HA/-