Karnataka High Court

Hanumantharaya vs H M Shivakumaraswamy on 15 June, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 15TH DAY OF JUNE 2022

                        BEFORE

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

              MFA No.1163 OF 2019(MV)

BETWEEN:

HANUMANTHARAYA
S/O. PALANNA
AGED ABOUT 25 YEARS
R/O. JAJUR VILLAGE
CHALLAKERE TALUK
CHITRADURGA DISTRICT
R/O. C/O. SURESH
PILLEKARENAHALLI
CHITRADURGA TALUK 577 507
                                         ...APPELLANT
(BY SRI.RANGEGOWDA N R )

AND:

1.     H M SHIVAKUMARASWAMY
       S/O. MAHANTHAIAH
       AGED MAJOR
       R/O. CHIKKABALLEKERE VILLAGE
       KADUR TALUK
       CHIKKAMAGALUR DISTRICT.

2.     THE BRANCH MANAGER
       IFFCO TOKIO GENERAL
       INSURANCE CO LTD
       BRANCH OFFICE
       NEAR STATE BANK OF INDIA
                           2



     JCR EXTENSION MAIN ROAD
     CHITRADURGA-577 501.
                                       ...RESPONDENTS
(BY SRI.B.PRADEEP, ADV. FOR R2:
    NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
27.11.2018 PASSED IN MVC NO.512/2018 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE & MACT-V,
CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THIS MFA COMING ON FOR ADMISSIONS, 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 27.11.2018 passed

by the II Additional Senior Civil Judge and MACT-V,

Chitradurga in MVC No.512/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 01.11.2017 at about 02.45

P.M., the claimant was proceeding in his motorcycle

bearing Registration No.KA-64-E-8350 as a rider along

with pillion rider returning from Haravigonadanahalli

Village towards Jajur Village on the left side of the

road with observing all traffic rules and regulations,

when the said motorcycle came near the land of

Nagabhushana, in between Jajur-Haravigondanahalli

Village, Challakere Taluk, Chitradurga District, at that

time, the driver of the Maruthi Omni Van bearing

Registration No.KA-18-P-4459 coming from opposite

side in a rash and negligent manner with high speed

and dashed to his 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 insurer 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. 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. N. Venkatashiva Reddy

was examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P131. 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 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.4,31,040/- 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 Rangegowda N. R., 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, PW-2, the doctor has stated in his

evidence that the claimant has suffered permanent

physical disability at 54% to right leg and foot

components. But the Tribunal has erred in taking the

whole body disability at only 18%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 70 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 B. Pradeep, 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, PW-2, the doctor has stated in his

evidence that the claimant has suffered permanent

physical disability at 54% to right leg and foot

components. The Tribunal while assessing the whole

body disability has considered 1/3rd of the total body

disability and held that the entire body disability as

18%. Therefore, there is no error in the whole body

disability assessed by the Tribunal.

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 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.

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 2017, the notional income has to be

taken at Rs.11,000/- p.m.

As per wound certificate, the claimant has

sustained crush injury of right foot and heel, lisfranic

fracture with extensor tendon tear, comminuted

fracture of 1st, 2nd, 3rd, 4th, metatarsal bones of right

foot, fracture of naviculor cuneiform bone right. PW-2,

the doctor has stated in his evidence that the claimant

has suffered permanent physical disability at 54% to

right leg and foot components. The Tribunal

considering 1/3rd of the total body disability and

assessed whole body disability as 18% is just and

reasonable. The claimant is aged about 26 years at

the time of the accident and multiplier applicable to

his age group is '17'. Thus, the claimant is

entitled for compensation of Rs.4,03,920/-

(Rs.11,000*12*17*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 04 months. Therefore, the claimant is entitled for

compensation of Rs.44,000/- (Rs.11,000*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 70 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.40,000/- and 'pain and suffering'

from Rs.25,000/- to Rs.45,000/-.

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 45,000 Medical expenses 48,000 48,000 Food, nourishment, 30,000 30,000 conveyance and attendant charges Loss of income during 21,000 44,000 laid up period

Loss of amenities 20,000 40,000 Loss of future income 2,57,040 4,03,920 Future medical expenses 30,000 30,000 Total 4,31,040 6,40,920

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.6,40,920/- as against Rs.4,31,040/- 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 @ 9%