Mahalingappa vs Shivakumar. H
2022 Latest Caselaw 8849 Kant

                         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.6176 OF 2019(MV)


BETWEEN

MAHALINGAPPA
SO PATEL APPEGOWDA
AGED ABOUT 61 YEARS
R/AT CHIKKAMALLIGERE VILLAGE
DODDAMALLIGERE POST
MAYASANDRA HOBLI
TURUVEKERE TALUK
TUMKURU DISTRICT-572 227.
                                        ...APPELLANT
(BY SRI. SHANTHARAJ K., ADV.)

AND

1.    SHIVAKUMAR H
      S/O HANUMANTHARAYAPPA
      AGED ABOUT 27 YEARS
      R/AT NEAR KANNADA SCHOOL
      UPPARAHALLI
      TUMAKURU CITY-572101.

2.    IFFCO TOKIO GEN. INS. CO. LTD.,
      BY ITS MANAGER
      BRANCH OFFICE
                          2




     NO. 28, 1ST FLOOR, CITY CENTRE
     CHURCH STREET
     BENGALURU-560 001.
                                  ...RESPONDENTS



(BY SRI. B.C. SHIVANNE GOWDA, ADV. 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: 08.03.2019 PASSED IN MVC NO. 172/2018
ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE
AND MACT TUMAKURU, 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 8.3.2019 passed

by I Addl. District Judge and MACT, Tumakuru in MVC

172/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 1.8.2017, the claimant was

standing on the extreme left side of Chelur-Tumakuru

road, at that time, Honda Shine motorcycle bearing

No.KA-06-EP-8674 being ridden by its rider at a high

speed and in a rash and negligent manner, dashed to

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 respondents

appeared through their respective counsel and filed

written statements in which the averments made in

the petition were denied.

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-2 and Dr.Prasad was examined as

PW-4 and got exhibited documents namely Ex.P1 to

Ex.P21. On behalf of the respondents, neither any

witness was examined nor any document was

produced. 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.265,116/- 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. The learned counsel for the claimant has

raised the following contentions:

Firstly, even though the claimant claims that he

was doing agricultural work and earning Rs.20,000/-

per month, but the Tribunal has taken the notional

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

Secondly, PW-4, the doctor has stated in his

evidence that the claimant has suffered disability of

36% to lower limb and 12% to whole body. But the

Tribunal has erred in taking the whole body disability

at only 10%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 5 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, the 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-4, the doctor has stated in his

evidence that the claimant has suffered disability of

36% to lower limb and 12% to whole body. The

Tribunal considering the injuries sustained by the

claimant, 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.

Hence, he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award of the Tribunal.

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 Type I fracture both Bone left leg. PW-4, the

doctor has stated in his evidence that the claimant has

suffered disability of 36% to lower limb and 12% to

whole body. Therefore, taking into consideration the

deposition of the doctor, PW-4 and injuries mentioned

in the wound certificate, the whole body disability can

be taken at 12%. The claimant is aged about 60

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.142,560/-

(Rs.11,000*12*9*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

of3 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'.

The claimant was treated as inpatient for more

than 5 days in the hospital and thereafter, has

received further treatment. Due to the accident, the

claimant has suffered grievous injuries and also

undergone surgery. 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

under the head of 'pain and sufferings' from

Rs.40,000/- 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 40,000 50,000 Medical expenses 52,716 52,716 Food, nourishment, 22,000 22,000 conveyance and attendant charges Loss of income during 24,000 33,000 laid up period Loss of amenities 20,000 40,000 Loss of future income 86,400 142,560 Future medical expenses 20,000 20,000 Total 265,116 360,276

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.360,276/-.

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 excluding

interest for the compensation awarded under the head

of 'future medical expenses'.

Sd/-

JUDGE

DM