Karnataka High Court

Sri Sanjeeva Poojary vs Sri Vijaya Kharvi on 14 June, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 14TH DAY OF JUNE 2022

                        BEFORE

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

              MFA No.2086 OF 2019(MV)
BETWEEN:

SRI SANJEEVA POOJARY
S/O HARIYANNA POOJARY
AGED ABOUT 57 YEARS
R/O "LEELAVATHI NILAYA"
NAVUNDA VILLAGE
KUNDAPURA TALUK-576101.
                                          ...APPELLANT
(BY SRI.K PRASANNA SHETTY, ADV.)

AND:

1.     SRI VIJAYA KHARVI
       S/O KUPPA KHARVI
       MAJOR
       R/O GOYADIMANE, KODERI
       KIRIMANJESHWARA VILLAGE,
       KUNDAPURA TALUK-676101.

2.     UNITED INDIA INSURANCE COMPANY LTD
       BRANCH OFFICE, KUNDAPURA
       SRI LAXMI NARASIMHA COMPLEX
       OPP:KSRTC DEPTO
       N H 66, VODERHOBLI,
       KUNDAPURA-56101.
                                      ...RESPONDENTS
(BY SRI.S.KRISHNA KISHORE, ADV. FOR R1:
    NOTICE TO R2 IS DISPENSED WITH)
                           2




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT    AGAINST    THE   JUDGMENT    AND    AWARD
DATED:17.01.2018 PASSED IN MVC NO.687/2015 ON THE
FILE OF THE SENIOR CIVIL JUDGE, ADDITIONAL MACT,
MEMBER, KUNDAPURA, 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 17.01.2018 passed

by the Senior Civil Judge, Kundapura and Member,

Additional MACT, Kundapura in MVC No.687/2015.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 26.05.2015 at about 06.30

P.M., the claimant was walking on the mud road

portion near Navunda Bus Stand by the side of the Tar

road on NH-66. At that time, the rider of the

motorcycle bearing Registration No.KA-20-EB-0201

came from Byndoor side towards Kundapura side. 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 riding of the offending vehicle by

its rider.

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. 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.Ullas Shetty was examined

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

to Ex.P12. On behalf of the respondents, neither

examined any witness nor exhibited any document.

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.3,46,924/- 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 K. Prasanna Shetty, learned counsel for

the claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was doing agriculture and earning Rs.20,000/- per

month, but the Tribunal has taken the notional income

as merely as Rs.7,000/- per month.

Secondly, due to the accident, the claimant has

sustained grievous injuries. He has examined the

doctor as PW-2. The doctor has stated in his evidence

that the claimant has suffered 17% to the whole body.

He was treated as inpatient for a period of 19 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 S. Krishna Kishore,

learned counsel for the Insurance Company has raised

following counter contentions:

Firstly, even though the claimant claims that he

was earning Rs.20,000/- 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. 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 riding of the offending

vehicle by its rider.

The claimant claims that he was earning

Rs.20,000/- 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 2015, the notional income has to be taken

at Rs.9,000/- p.m.

Due to the accident, the claimant has sustained

reddish contusion of 7cm X 3cm on the back of the

head with CT Scan sowing, reddish abrasion of 3cm X

2cm on left big toe. He has examined the doctor as

PW-2. The doctor has stated in his evidence that the

claimant has suffered 17% to the whole body.

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 17%. The claimant is aged about

58 years at the time of the accident and multiplier

applicable to his age group is '9'. Thus, the claimant

is entitled for compensation of Rs.1,65,240/-

(Rs.9,000*12*9*17%) 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 4 months. Therefore, the claimant is entitled for

compensation of Rs.36,000/- (Rs.9,000*4 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 19 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.30,000/- to Rs.60,000/- and 'pain and suffering'

from Rs.30,000/- to Rs.50,000/-.

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 30,000 50,000 Medical expenses 1,15,164 1,15,164 Food, nourishment, 20,000 20,000 conveyance and attendant charges Loss of income during 23,240 36,000 laid up period Loss of amenities 30,000 60,000 Loss of future income 1,28,520 1,65,240 Total 3,46,924 4,46,404

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.4,46,404/- as against Rs.3,46,924/- 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.

This Court while condoning the delay, has denied

the interest for a period of 313 days. Hence, the