Karnataka High Court

Reliance Gic Ltd vs K T Manjegowda on 15 June, 2022

Bench: H T Prasad

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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.6567 OF 2018(MV)
                    C/W
          MFA No. 1736 OF 2019(MV)

IN MFA 6567/2018
BETWEEN

RELIANCE GIC LTD
REGISTERED OFFICE NO.19
RELIANCE CENTRE
WALCHAND HIRACHANDANI MARG
BALLAR ESTATE, MUMBAI
NOW REP BY MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
NO.28, SANITARY BUILDING
5TH FLOOR, M.G.ROAD
BANGALORE-560 001.
                                  ...APPELLANT

(BY SRI.PRADEEP B., ADV)

AND

1.    K T MANJEGOWDA
      S/O THIMMEGOWDA
      AGED ABOUT 43 YEARS
      R/O YEDIYUR HOBLI
      KUNIGAL TALUK-577 541.
                        2




2.   MAHESHGOWDA
     S/O SHIVEGOWDA
     R/AT BYLAPPANAPALYA
     NEAR TCI BUS STAND,
     M.H.4, TUMKUR BENGALURU ROAD
     MADAVARA, P.O. BANGALORE
     AND ALSO NATIVE OF SHARHALLI VILLAGE
     SANTHEBACHALLI HOBLI
     K.R.PET TALUK.-571426.
                               ...RESPONDENTS

(BY SRI. M V MAHESHWARAPPA, ADV. FOR C/R1:
NOTICE TO R2 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:27.03.2018 PASSED IN MVC NO.564/2013 ON
THE FILE OF THE SENIOR CIVIL JUDGE & MACT-15TH
KUNIGAL,      AWARDING     COMPENSATION      OF
RS.9,50,200/- WITH INTEREST AT 9% P.A. FROM THE
DATE OF PETITION TILL THE DATE OF DEPOSIT.

IN MFA 1736/2019
BETWEEN

SRI.K T MANJEGOWDA
S/O THIMMEGOWDA
AGED ABOUT 44 YEARS
R/O YEDIYUR HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT-577 541.
                                    ... APPELLANT

(BY SRI.M.V. MAHESHWARAPPA, ADV.)
                        3




AND

1.    MAHESHGOWDA
      S/O SHIVEGOWDA
      R/AT BYLAPPANAPALYA
      NEAR TCI BUS STAND,
      M.H.4, TUMKUR BENGALURU ROAD
      MADAVARA, P.O. BANGALORE
      AND ALSO NATIVE OF SHARHALLI VILLAGE
      SANTHEBACHALLI HOBLI
      K.R.PET TALUK.-571426.

2.    THE MANAGER
      RELIANCE GENERAL INS.
      CO. LTD.,
      REG., OFFICE NO.19
      RELIANCE CENTER
      WALCHAND HIRACHANDANI
                                    ...RESPONDENTS
(BY SRI. B. PRADEEP, ADV. FOR R2:
NTOICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JDUGMENT AND AWARD
DATED:27.03.2018 PASSED IN MVC NO.564/2013 ON
THE FILE OF THE SENIOR CIVIL JDUGE AND MACT-
XV, KUNIGAL PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCMENT OF COMPENSATION.

                      ***


      THESE MFAs COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                          JUDGMENT

MFA 6567/2018 is filed by the Insurance

Company and MFA 1736/2019 is filed by the claimant

under Section 173(1) of Motor Vehicles Act, 1988

(hereinafter referred to as 'the Act') being aggrieved

by the judgment and decree dated 27.3.2018 passed

by Senior Civil Judge and MACT-XV, Kunigal in MVC

564/2013.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 27.03.2013, when the

claimant was sitting in autorickshaw bearing

registration No.KA-09-B-256 at K.R.Pet and the driver

was alighting the passengers at KR Pet, at that time,

crane bearing registration No.KA-52-M-1039 being

driven by its driver at a high speed and in a rash and

negligent manner, dashed to the autorickshaw. 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 only

respondent No.2 filed written statement 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-1, Mr.Ashoka H.C., employer of the

claimant was examined as PW-2 and Dr.Santhosh

Kumar.S was examined as PW-3 and got exhibited

documents namely Ex.P1 to Ex.P15. On behalf of the

respondents, one witness was examined as RW-1 and

no documents were 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.950,200/- 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, these appeals have

been filed.

6. The learned counsel for the Insurance

Company has raised the following contentions:

Firstly, the claimant claims that he was earning

Rs.14,000 per month by working as mason and

examined his employer as PW-2. But he has not

produced any documents, much less the bank

statement to show that he was receiving Rs.14,000/-

p.m. as income. In the absence of proof of income,

the notional monthly income assessed by the Tribunal

at Rs.9,000/- is on the higher side.

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered physical

disability of 80% to lower limb, but he has not stated

the disability caused to the whole body. The whole

body disability assessed by the Tribunal at 40% is on

the higher side. Further, the disability suffered by the

claimant does not affect his earning capacity. Hence,

he is not entitled for future prospects.

Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the overall compensation awarded by the

Tribunal under different heads is on the higher side.

Fourthly, the interest awarded by the Tribunal at

9% p.a. on the compensation amount is on the higher

side. Hence, he sought for allowing the appeal filed by

the Insurance Company by reducing the

compensation.

7. On the other hand, the learned counsel for

the claimant has raised following counter contentions:

Firstly, even though the claimant claims that he

was doing mason work and earning Rs.14,000/- per

month and examined his employer as PW-2, but the

Tribunal has taken the notional income as merely as

Rs.9,000/- per month.

Secondly, the claimant has suffered Type II B

compound fracture both bone of left leg vascular and

anural limb, right leg punctured wound and

comminuted fracture distal radius left. PW-3, the

doctor has stated in his evidence that the claimant has

suffered physical disability of 80%. But the Tribunal

has erred in taking the whole body disability at only

40%. Due to the disability, the claimant is not in a

position to discharge his regular work and do his

mason work and there is loss of income. There is

functional disability of 100% and claimant is entitled

for future prospects. But the Tribunal has failed to

consider the future prospects. In support of his

contention, he has relied upon the decision of the

Apex Court in the case of ERUDHAYA PRIYA vs.

STATE EXPRESS TRANSPORT CORPORATION

LTD. 2020' SCC Online SC 601 and in the case of

'PAPPU DEO YADAV vs. NARESH KUMAR AND

OTHERS' AIR 2020 SC 4424.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 30 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. The Tribunal has failed to grant any

compensation for 'loss of amenities'. Further, the

compensation granted by the Tribunal under the head

of 'pain and sufferings' and other heads are on the

lower side. Hence, he sought for allowing the appeal

filed by the claimant by enhancing the compensation.

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.14,000/- per month and examined the employer as

PW-3. He has not produced any supporting 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 2013, the

notional income has to be taken at Rs.8,000/- p.m.

As per wound certificate, the claimant has

sustained Type II B compound fracture both bone of

left leg vascular and anural limb, right leg punctured

wound and comminuted fracture distal radius left. PW-

3, the doctor has stated in his evidence that the

claimant has suffered physical disability of 80%.

Therefore, taking into consideration the deposition

of the doctor, PW-3 and injuries mentioned in the

wound certificate, the Tribunal has rightly assessed

the whole body disability at 40%. The claimant has

sustained grievous injuries and he is a mason. The

said disability has affected his earning capacity and

there is loss of income and hence, he is entitled for

future prospects. Since there is functional disability,

in view of the law laid down by the Hon'ble Apex Court

in the case of ERUDAYA PRIYA (supra) and PAPPU

DEO YADAV (supra), the claimant is entitled for future

prospects. In view of the law laid down by the Hon'ble

Apex Court in the case of 'NATIONAL INSURANCE CO.

LTD. -v- PRANAY SETHI AND OTHERS' AIR 2017 SC

5157, addition of 40% of the income of the claimant

towards future prospects has to be considered.

Hence, the monthly income of the claimant is

assessed at Rs.11,200/- (Rs.8,000+40%). The

claimant is aged about 38 years at the time of the

accident and multiplier applicable to his age

group is '15'. Thus, the claimant is entitled

for compensation of Rs.8,06,400/-

(Rs.11,200*12*15*40%) 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.32,000/- (Rs.8,000*4

months) under the head 'loss of income during laid up

period'.

The claimant was treated as inpatient for more

than 30 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 award a sum of

Rs.40,000/- under the head of 'loss of amenities'.

Further, I am inclined to enhance the compensation

awarded by the Tribunal under the head of 'pain and

sufferings' from Rs.35,000/- 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 35,000 45,000 Medical expenses 210,000 210,000 Food, nourishment, 30,200 30,200 conveyance and attendant charges Loss of income during 27,000 32,000 laid up period Loss of amenities 0 40,000 Loss of future income 648,000 806,400 Total 950,200 11,63,600

11. In the result, both the appeals are

disposed of. The judgment of the Claims Tribunal is

modified.

The claimant is entitled to a total compensation

of Rs.11,63,600/-.

In view of the Division Bench decision of this in

the case of Ms.Joyeeta Bose and others -v-

Venkateshan.V and others (MFA 5896/2018 and

connected matters disposed of on 24.8.2020),

the interest granted by the Tribunal at the rate of 9%

p.a. on the compensation amount is reduced to 6%

p.a.