Karnataka High Court

Sri Chikkanna vs Tata Aig General Insurance ... on 8 June, 2022

Bench: H T Prasad

                          1



  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.1697 OF 2019(MV)

BETWEEN:

SRI.CHIKKANNA,
S/O SAMBEGOWDA,
AGED ABOUT 62 YEARS,
R/O MARALEBEKUPPE VILLAGE & POST,
HUYAMABLLI HOBLI,
KANAKAPURA TALUK - 562 117.
RAMANAGARA DISTRICT.
                                        ...APPELLANT
(BY SRI.GIRIMALLAIAH., ADVOCATE)

AND:

1. TATA AIG GENERAL INSURANCE
   COMPANY LTD.,
   NO.69, 3RD FLOOR, J.P.& DEVI,
   JAMBUKESHWARA ARCADE,
   MILLERS ROAD,
   BENGALURU - 560 052.

2. MR. MANJUNATHA.M.C.,
   S/O CHIKKA MARIGOWDA,
   MAJOR
   (AGE NOT KNOWN TO APPELLANT)
   B.K.G.LAYOUT,
   ADICHUNCHANAGIRI,
   OPP:KALLAHALLI POST,
   KASABA HOBLI,
                           2



  KANAKAPURA TALUK - 562 117
  RAMANAGARA DISTRICT.
                                       ...RESPONDENTS

(BY SRI.JANARDHAN REDDY, ADVOCATE FOR R1;
    NOTICE TO R2 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, AGAINST JUDGMENT AND AWARD DATED 29.09.2018
PASSED IN MVC NO.2744/2017, ON THE FILE OF XXII
ASCJ & XX ACMM, & MEMBER, MACT, BENGALURU (SCCH-
24), 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 29.09.2018 passed

by the XXII ASCJ & XX ACMM & Member MACT,

Bengaluru in MVC No.2744/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 30.03.2017 at about 12.30

P.M., the claimant along with another were going by

the side of the M.G.Road at Panduranga Temple, Near

S.B.M., ATM, Kanakapura Town, at that time, the rider

of the motor cycle bearing Registration No.KA-42-S-

3979 came at high speed, in rash and negligent

manner and dashed against 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 Nos.1

and 2 being the insurer and owner of the offending

vehicle have appeared through counsel and filed

written statement in which the averments made in the

petition were denied.

It was pleaded by the insurer that the petition

itself is false and frivolous in the eye of law. The rider

of the offending vehicle did not have valid driving

licence as on the date of the accident. 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.

It was pleaded by the owner that the petition

itself is false and frivolous in the eye of law. It was

further pleaded that the offending vehicle was insured

with Insurance Company and the policy was in force

as on the date of the accident. Hence, the Insurance

Company is liable to pay the compensation. 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 himself was

examined as PW-1 and Dr. Avinash Parthasarathy was

examined as PW-3/4 and examined another witness

as PW-5 and got exhibited documents namely Ex.P1

to Ex.P19. On behalf of the respondents, neither

examined any witness nor exhibited any document on

their behalf. 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.1,57,600/- along with interest at the rate of 8%

p.a. and directed the Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. Sri Girimallaiah, learned counsel for the

claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was doing agriculture and earning Rs.12,000/- per

month, but the Tribunal has taken the notional income

as merely as Rs.5,000/- per month.

Secondly, due to the accident, the claimant has

sustained grievous injuries. He has examined the

doctor. He has deposed that the claimant has suffered

18% disability to the whole body. But whole body

disability assessed by the Tribunal 10% is on lower

side. He was treated as inpatient for a period of 29

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 'pain and sufferings' and other

heads are on the lower side. The Tribunal has failed to

grant the compensation under the head of 'loss of

amenities'. Hence, he sought for allowing the appeal.

7. Per contra, Sri Janardhan Reddy, the

learned counsel for the Insurance Company has raised

following counter contentions:

Firstly, even though the claimant claims that he

was earning Rs.12,000/- 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 clamant

are minor in nature. Even though the doctor has

deposed that the claimant suffered 18% disability to

the whole body, but he has not assessed the limb

disability to assess the whole body. Therefore, the

Tribunal 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.

Lastly, in view of 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 claimants are entitled for 6% interest

but the Tribunal has granted 8% interest is on the

higher side. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the original records.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent riding of the offending

vehicle by its rider.

The claimant claims that he was earning

Rs.12,000/- 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 swelling, tenderness, deformity present left

thigh CLW 3X3cm and X-ray shows that segmental

fracture left femur. PW-3/4, the doctor has stated in

his evidence that the claimant has suffered 18% to

whole body but he has not assessed the limb

disability. Therefore, taking into consideration the

deposition of the doctor and injuries mentioned in the

wound certificate, I am of the opinion that that the

whole body disability can be assessed 12%. The

claimant is aged about 64 years at the time of the

accident and multiplier applicable to his age group is

'7'. Thus, the claimant is entitled for compensation

of Rs.1,10,880/- (Rs.11,000*12*7*12%) 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.33,000/- (Rs.11,000*3 months)

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

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He was

treated as inpatient for more than 29 days in the

hospital. 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

of the opinion that the claimant is entitled for 'loss of

amenities' 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 20,590 20,590 Food, nourishment, 20,000 20,000 conveyance and attendant charges Loss of income during 15,000 33,000 laid up period Loss of amenities 0 40,000 Loss of future income 42,000 1,10,880 Future medical expenses 10,000 10,000 Total 1,57,590 2,84,470

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.2,84,470/- as against Rs.1,57,590/- awarded

by the Tribunal.

In view of judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE', the

enhanced compensation shall carry interest at 6% per

annum.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 8%

p.a. (enhanced compensation shall carry interest at