Karnataka High Court

C Ajjappa vs Iffco Tokio Gen Ins Co.Ltd on 10 June, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 10TH DAY OF JUNE 2022

                        BEFORE

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

              MFA No.9718 OF 2018(MV)
BETWEEN:

C AJJAPPA
S/O CHANNABASAPPA
AGED ABOUT 46 YEARS
AGRICULTURIST
R/O JANUKONDA VILLAGE
CHITRADURGA TQ AND DIST-577001.
                                         ...APPELLANT
(BY SRI.A.K. SPOORTHY HEGDE NAGARAJA, ADV.)

AND

1.     IFFCO TOKIO GEN INS. CO.LTD
       REP BY ITS MANAGER
       LAWYERS ROAD, NO.7/432
       PCA & RD BANK BUILDING
       KUVEMPUNAGAR
       DAVANAGERE-577002.

2.     P B SWAMY
       S/O BASAVARAJAPPA P R
       AGED ABOUT 29 YEARS
       DRIVER CUM OWNER OF
       CAR NO.KA-16-C64033
       R/O TALYA VILLAGE, HOLALKERE TALUK
       CHITRADURGA DISTRICT.
                                      ...RESPONDENTS
(BY SRI. R.SRINIVASA GOWDA, FOR R1:
NOTICE TO R2 IS D/W )
                            2




      THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED:
05/11/2018, PASSED IN MVC NO.665/2017, ON THE FILE
OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF
JUDICIAL    MAGISTRATE,        CHITRADURGA,     PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND    SEEKING   ENHANCEMENT      OF   COMPENSATION.


      THIS MFA COMING ON FOR HEARING, 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 05.11.2018 passed

by the Principal Senior Civil Judge & CJM, Chitradurga

in MVC No.665/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 26.10.2016 at about 10.40

A.M., the claimant was riding his motorcycle bearing

Registration No.KA-16-Q-3935 in a moderate speed

by observing all the traffic rules and regulations from

his house towards his agricultural land, when he came

near Anjaneya and Akelaramma Temple cross,

Janukonda, Chitradruga Taluk, at that time, the driver

of the Car bearing Registration No.KA-16-C-4033

came in a rash and negligent manner with high speed

from Holalkere side towards Chitradurga and dashed

to hind portion of the motorcycle. 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 owner and the insurer of the

offending vehicle have appeared through counsel and

only respondent No.2 has 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

driver 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.

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. Sathyanarayana M. V. was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P19. On behalf of the

respondents, two witnesses were examined as RW-1

and RW-2 and got exhibited documents namely Ex.R1

to Ex.R6. 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.2,50,500/- 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. Sri A. K. Sreeharsha, learned counsel for

Sri Spoorthy Hegde Nagaraja, for the claimant has

raised the following contentions:

Firstly, even though the claimant claims that he

was doing agricultural work and earning Rs.6,00,000/-

per annum, but the Tribunal has taken the notional

income as merely as Rs.8,000/- per month.

Secondly, the claimant has suffered head injury.

Therefore, he has examined Neuro Surgeon

Dr.Sathyanarayna as PW-2. In his evidence, he has

deposed that the claimant has suffered disability at

35%. But the Tribunal has erred in taking the whole

body disability at only 12%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 10 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, Sri R. Srinivasa Gowda,

the learned counsel for the Insurance Company has

raised following counter contentions:

Firstly, even though the claimant claims that he

was earning Rs.6,00,000/- per annum from

agricultural income. Due to the injuries, there was no

loss of income. Therefore, the Tribunal has rightly

assessed the income of the claimant notionally.

Secondly, the injuries suffered by the claimant

are minor in nature. PW-2, the doctor has stated in his

evidence that the claimant has suffered disability at

35%. Since the doctor has not assessed the whole

body disability, the Tribunal considering the injuries

sustained by the claimant, has rightly assessed the

whole body disability at 12%.

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.

He has also relied upon the judgment of the Division

Bench of this Court in MFA No.9969/2013 disposed of

on 05.04.2022, the claimants are entitled only 6%

interest per annum but the Tribunal has granted 9%

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 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.

Even though the claimant claims that he was

earning Rs.6,00,000/- per annum by doing

agriculture. Due to the accident, he will not suffer any

loss in the agricultural income. Under this

circumstance, 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 fracture of lateral wall o sphenoid sinus with

hemosinus, undisplaced fracture occipital bone on left

side extending to bani occiput, nasal and ear injuries

and other bodily injuries. The claimant has examined

Neuro Surgeon Dr.Sathyanarayna as PW-2. In his

evidence, he has deposed that the claimant has

suffered 35% of psychological permanent disability.

The Tribunal has erred in considering the whole body

disability by taking 1/3rd. Since it is a neurological

disability, the method of whole body disability

assessed by the Tribunal is apparently error on the

face of the records. Therefore, taking into

consideration the deposition of the doctor, PW-2 and

injuries mentioned in the wound certificate, I am of

the opinion that the whole body disability can be

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.2,87,280/-

(Rs.9,500*12*14*18%) 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 2 months. Therefore, the claimant is entitled for

compensation of Rs.19,000/- (Rs.9,500*2 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 10 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.20,000/- to Rs.30,000/- 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 32,162 32,167 Food, nourishment, 4,000 4,000 conveyance and attendant charges Loss of income during 8,000 19,000 laid up period Loss of amenities 20,000 30,000 Loss of future income 1,61,280 2,87,280 Total 2,50,442 4,12,447

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.4,12,447/- as against Rs.2,50,442/-.

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%

interest per annum.

The Insurance Company is directed to deposit the

compensation amount along with interest @ 9% p.a.

(the enhanced compensation shall carry interest at

6% interest per annum) from the date of filing of the