Karnataka High Court

Sri. C. Umapathi @ Umesh vs New India Assurance Co. Ltd on 8 June, 2022

Bench: H T Prasad

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 8TH DAY OF JUNE 2022

                         BEFORE

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

               MFA No.7189 OF 2018 (MV)

BETWEEN:

Sri.C.Umapathi @Umesh,
S/o Late Channabasaiah,
Aged about 41 years,
R/o Doddalagatta Alagatta Village,
Hireguntanuru Hobali,
Chitradurga Tq and District - 577 001.
                                             ... Appellant
(By Sri.Sreeharsha.A.K., Advocate for
    Sri. Spoorthy Hegde, Advocate)

AND:

1. New India Assurance Co. Ltd.,
   By its Branch Manager,
   Branch Office, Vijaya Shree,
   B.D.Road, Chitradurga - 577 501.

2. S.A.Mallikarjuna,
   S/o Late S.R.Ankalaiah,
   Aged about 41 years,
   RC Owner of tractor and trailer
   Bearing Reg No.KA-16-T-5323-5724,
   R/o Siddapura Village, Bharamasagara Hobali,
   Chitradurga Tq & District - 577 001.
                                         ... Respondents
(By Sri.Anoop.S., Advocate for
   Sri.B.C.Seetharam Rao, Advocate for R1;
   Notice to R2 is dispensed with)
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       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 18.07.2018 passed
in MVC No.219/2017 on the file of the Prl. Senior Civil
Judge & CJM, Chitradurga, partly allowing the claim
petition for compensation and seeking enhancement of
compensation.

      This MFA, coming on for Hearing, this day, this
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 18.07.2018 passed

by MACT, Chitradurga in MVC No.219/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 10.10.2016 at about 2.30

p.m. the claimant was proceeding in a tractor engine

bearing registration No.KA-16/TB-4301 from

Chowdeshwari temple to his native place. When the

said tractor came near Kerekodi, at that time, the

driver of another tractor and trailer bearing

registration No.KA-16/T-5723/5724 being driven by

its driver at a high speed and in a rash and negligent

manner, dashed to the hind portion of the tractor

engine. 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 appeared through counsel and filed separate

written statements in which the averments made in

the petition were denied. The age, avocation and

income of the claimant and the medical expenses are

denied. It was pleaded that the petition itself is false

and frivolous in the eye of law. It was further pleaded

by respondent No.1 that the offending vehicle was

insured with respondent No.2 and the policy was in

force as on the date of the accident.

It was pleaded by respondent No.2 that the

accident was due to the rash and negligent driving of

the vehicle in which the claimant was proceeding. It

was further pleaded that the driver of the offending

vehicle did not have valid driving licence as on the

date of the accident. It was further pleaded that the

liability is subject to terms and conditions of the

policy. It was further pleaded that the quantum of

compensation claimed by the claimant 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.Ambarish was examined as

PW-2 and got exhibited documents namely Ex.P1 to

Ex.P63. On behalf of the respondents, no witness was

examined but got exhibited documents namely Ex.R1

to Ex.R3. 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.10,39,300/- along with interest at the rate of 9%

p.a. 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 agriculture work and earning

Rs.10,00,000/- per annum, but the Tribunal has taken

the notional income as only Rs.8,000/- per month.

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

evidence that the claimant has suffered disability of

29% to lower limb and 6% permanent disability to

chest. The Tribunal has assessed whole body

disability as 10% which is on the lower side.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 30 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 and he has to suffer the disability

and unhappiness throughout his life. Considering the

same, the compensation granted by the Tribunal

under the heads of 'pain and sufferings', 'loss of

amenities' and other heads are on the lower side.

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.10,00,000/- per annum, 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 disability of

29% to lower limb and 6% disability to chest. 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.

      Fourthly,    in view of the law laid down by a

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 rate of interest awarded by the

Tribunal at 9% p.a. is on the higher side. 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.10,00,000/- per annum. 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 2016, the notional income has to be

taken at Rs.9,500/- p.m. As per wound certificate,

the claimant has sustained chest left side 3, 4 and 5th

ribs fractures, chest right side, 2, 3, 4 and 5th ribs

fractures, right forearm distal radius fracture and DRIJ

injury, left sacral ala fracture and SI joint disruption

public diastatsis and other injuries. PW-2, the doctor

has stated in his evidence that the claimant has

suffered disability of 29% to lower limb and 6%

disability to chest. Therefore, taking into consideration

the deposition of the doctor, PW-2 and injuries

mentioned in the wound certificate, the disability

assessed by the Tribunal is on the lower side and the

same has to be taken at 15%. The claimant was

aged about 43 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.2,39,400/- (Rs.9,500*12*14*15%) on account of

'loss of future income'.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He was

treated as inpatient for more than 30 days in the

hospital and thereafter, has received further

treatment. He has suffered lot of pain during

treatment and he has to suffer with the disability and

unhappiness 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.40,000/- to Rs.50,000/-, 'food,

nourishment and attendant charges' from Rs.13,000/-

to Rs.25,000/-, 'loss of income during laid-up period'

for a period of 4 months, i.e., Rs.38,000/-

(Rs.9,500*4).

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 7,54,896 7,54,896 Food, nourishment, 13,000 25,000 conveyance and attendant charges Loss of income during 32,000 38,000 laid up period Loss of amenities 40,000 50,000 Loss of future income 1,34,400 2,39,400 Future medical expenses 15,000 15,000 Total 10,39,296 11,72,296

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.11,72,296/- as against Rs.10,39,296/- awarded

by the Tribunal.

In view of the law laid down by a Division Bench

of this Court in JOYEETA BOSE (supra) the

enhanced compensation carries interest @ 6% p.a.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 9%

p.a. (interest @ 6% p.a. on the enhanced

compensation) from the date of filing of the claim