Abdul Akram vs Haidar
2022 Latest Caselaw 8457 Kant

                         1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 9TH DAY OF JUNE 2022

                      BEFORE

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

            MFA No.4149 OF 2020 (MV)

BETWEEN:

ABDUL AKRAM
S/O HAIDAR,
AGED ABOUT 20 YEARS,
RESIDENT AT DOOR NO.2-97-1,
BATYADKA HOUSE, MANGALANTHI,
MANJANADY POST & VILLAGE,
MANGALURU TALUK, D.K.- 574 237.
                                        ...APPELLANT

(BY SRI.KRISHNAMOORTHY.D., ADVOCATE)

AND:

1. HAIDAR S/O LATE ABDULLA,
   AGED ABOUT 47 YEARS,
   RESIDENT AT DOOR NO. 2-97-1,
   BATYADKA HOUSE, MANGALANTHI,
   MANJANADY POST & VILLAGE,
   MANGALURU TALUK, D.K.- 574 237.

2. UNITED INDIA INSURANCE CO. LTD.,
   SALDANHA BUILDING,
   BRIGADE ROAD, BALMATTA,
   MANGALURU - 575 001.
   REP BY ITS MANAGER.
                                      ...RESPONDENTS
                           2



(BY SMT.MANJULA.N. TEJASWI, ADVOCATE FOR R2;
    NOTICE TO R1 IS HELD SUFFICIENT)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, AGAINST JUDGMENT AND AWARD DATED 29.02.2020
PASSED IN MVC NO.1791/2018 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND MACT, MANGALURU,
D.K., 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 29.02.2020 passed

by the Principal Senior Civil Judge & MACT, Mangaluru

in MVC No.1791/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 30.06.2018 at about 08.15

P.M., the claimant was proceeding as a pillion rider in

the motorcycle bearing Registration No.KA-19/EX-

1635 from Kutthar towards Manjanady and the said

motorcycle was ridden by its rider in a rash and

negligent manner with high speed without observing

the rules and regulations of the traffic. When they

reached at the place called Kinya, due to over speed,

the rider lost control over the motorcycle and the

same was fell capsized on the road. As a result of the

same, 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 rider himself. 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. 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. Vinay P. G. was examined

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

to Ex.P11. On behalf of the respondents, no witness

was examined but exhibited a document namely

Ex.R1. 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.2,88,422/- 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 D. Krishnamoorthy, learned counsel for

the claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was working as a painter and earning Rs.1,000/- per

day, but the Tribunal has taken the notional income as

merely as Rs.7,500/- per month.

Secondly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 9 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 allowing the appeal.

7. On the other hand, Smt. Manjula N.

Tejaswi, learned counsel for the Insurance Company

has raised following counter contentions:

Firstly, even though the claimant claims that he

was earning Rs.1,000/- per day, 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 only

for a period of 9 days. He has examined the Dr.Vinay

P.G. as PW-2. The doctor has assessed the disability

at 40%. Considering the evidence of the doctor,

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 riding of the offending

vehicle by its rider.

The claimant claims that he was earning

Rs.1,000/- per day. 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 2018, the notional income has to be taken

at Rs.12,500/- p.m.

As per wound certificate, the claimant has

sustained two grievous injuries and three simple

injuries. PW-2, the doctor has stated in his evidence

that the claimant has suffered disability of 40%.

Therefore, taking into consideration the deposition of

the doctor, PW-2 and injuries mentioned in the wound

certificate, the Tribunal has rightly taken the whole

body disability at 13%. The claimant is aged about

18 years at the time of the accident and multiplier

applicable to his age group is '18'. Thus, the claimant

is entitled for compensation of Rs.3,51,000/-

(Rs.12,500*12*18*13%) 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 01 month. Therefore, the claimant is entitled for

compensation of Rs.12,500/- (Rs.12,500*1 month)

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 9 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

inclined to enhance the compensation awarded by the

Tribunal under the head of 'loss of amenities' from

Rs.10,000/- to Rs.25,000/- and 'pain and suffering'

from Rs.10,000/- to Rs.25,000/-.

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 10,000 25,000 Medical expenses 47,922 47,922 Food, nourishment, 7,650 7,650 conveyance and attendant charges Loss of income during 2,250 12,500 laid up period

Loss of amenities 10,000 25,000 Loss of future income 2,10,600 3,51,000 Total 2,88,422 4,69,072

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.4,69,072/- as against Rs.2,88,422/- 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.

Sd/-

JUDGE

HA/-