Karnataka High Court

Sri Chandan S S vs Sri M Ravikumar on 17 June, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 17TH DAY OF JUNE 2022

                        BEFORE

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

              MFA No.1977 OF 2020(MV)

BETWEEN:

SRI CHANDAN S S
S/O SRINIVAS
AGED ABOUT 38 YEARS
R/AT NO.117
HAROHALLI VILLAGE
KANAKAPURA TALUK
RAMANAGARA TALUK
AND DISTRICT.
                                         ...APPELLANT
(BY SRI.RAJU S.,ADV.)

AND

1.     SRI M RAVIKUMAR
       S/O MARIGOWDA
       R/AT NO.423/A
       NEW NO.16, AJAY NILAYA
       P P LAYOUT, 2ND MAIN ROAD
       BANASHANKARI
       BANGALORE-560062.

2.     THE BRANCH MANAGER
       ROYAL SUNDARAM GENERAL
       INSURANCE COMPANY LTD.,
       RAGHAVENDRA PLAJA
       BASEMENT NO.186/7
       HOSUR MAIN ROAD
                             2



     WILSON GARDEN
     BANGALORE-560027
     REP BY ITS BRANCH MANAGER.
                                          ...RESPONDENTS

(BY SRI.MAYANNA GOWDA N.R., ADV. FOR R1:
SRI. RAVI S. SAMPRATHI, ADV. FOR R2)

     THIS MFA IS FILED UNDER SECTION173(1) OF MV
ACT,   AGAINST    THE    JUDGMENT    AND    AWARD
DT.21.09.2019 PASSED IN MVC NO.509/2016 ON THE FILE
OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
MACT, RAMANAGARA, 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 21.09.2019 passed

by the Additional Senior Civil Judge & JMFC,

Ramanagara in MVC No.509/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 04.12.2015 at about 03.15

P.M. the claimant was going from Revanasiddeshwara

Hill towards Averahalli Gate in Auto rickshaw bearing

Registration No.KA-42-4136. When the said Auto

Rickshaw reached near Averahalli Gate, the driver of

the Lorry bearing Registration No.KA-05-AD-3752

drove the same in a rash and negligent manner and

dashed against the Auto Rickshaw. 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 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 driver of the

offending vehicle did not have valid driving licence and

was plying beyond the permitted limit and without

fitness certificate 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. Manjunatha H, was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P11. On behalf of the

respondents, one witness was examined as RW-1 and

got exhibited documents namely Ex.R1 to Ex.R2. 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.2,42,000/- along with

interest at the rate of 7% p.a. and directed the

Insurance Company to deposit the compensation

amount along with interest. Being aggrieved, this

appeal has been filed.

6. Sri Raju. S, learned counsel for the

claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was working as a mason and earning Rs.1,000/- per

day, but the Tribunal has taken the notional income as

merely as Rs.6,000/- per month.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered permanent

physical and functional disability of 8% to the left arm

and 18% to the left forearm and hand and 24% to the

whole body. But the Tribunal has erred in taking the

whole body disability at only 8.66%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 84 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 enhancement of compensation.

7. On the other hand, Sri Ravi S. Samprathi,

the learned counsel for the Insurance Company has

raised following counter contentions:

Firstly, even though the claimant claims that he

was earning Rs.1,000/- per day, 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 even though the claimant has suffered

permanent physical and functional disability of 8% to

the left arm and 18% to the left forearm and hand

and 24% to the whole body, the Tribunal has

considered 1/3rd of the total disability to assess whole

body disability. Therefore, the whole body disability

assessed by the Tribunal 8.66% is just and

reasonable.

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 7% 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.1,000/- per day. 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.

As per wound certificate, the claimant has

sustained mild degree tenderness over the left

shoulder joint and lower elbown and lower wrist etc.

PW-2, the doctor has stated in his evidence that the

claimant has suffered permanent physical and

functional disability of 8% to the left arm and 18% to

the left forearm and hand and 24% 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 8.66%. The claimant is

aged about 35 years at the time of the accident and

multiplier applicable to his age group is '16'. Thus,

the claimant is entitled for compensation of

Rs.1,49,645/- (Rs.9,000*12*16*8.66%) 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 08 months. Therefore, the claimant is entitled for

compensation of Rs.72,000/- (Rs.9,000*8 months)

under the head 'loss of income during laid up period'.

The claimant was treated as inpatient for more

than 84 days in the hospital and thereafter, has

received further treatment. Hence, I am inclined to

enhance the compensation awarded under the head of

'conveyance, nourishment and attendance charges'

from Rs.30,000/- to Rs.40,000/-.

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.10,000/- to Rs.40,000/- and 'pain and suffering'

from Rs.45,000/- to Rs.55,000/-.

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 45,000.00 55,000.00 Medical expenses 21,284.50 21,284.50 Food, nourishment, 30,000.00 40,000.00 conveyance and attendant charges Loss of income during 36,000.00 72,000.00 laid up period Loss of amenities 10,000.00 40,000.00 Loss of future income 99,736.00 1,49,645.00 Total 2,42,020.50 3,77,929.50 Rounded of 2,42,000 3,77,930

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.3,77,930/- as against Rs.2,42,000/- 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 amount shall carry interest at

6% per annum.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 7%

p.a. (the enhanced compensation amount shall carry