Karnataka High Court

Abhishaik vs Rajendran on 20 June, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 20TH DAY OF JUNE 2022

                        BEFORE

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

              MFA No.3830 OF 2020(MV)

BETWEEN:

ABHISHAIK
S/O KUMAR
AGED 25 YEARS
R/AT YARAGANAHALLI
MYSORE

NOW R/AT C/O VEERUPAKSHA
NERALAKERE VILLAGE
S.R.PATNA TALUK
MANDYA DISTRICT PIN-571445
                                         ...APPELLANT
(BY SRI. SANATH KUMARA K M., ADV.)

AND:

1.     RAJENDRAN
       S/O LATE RAGHUVAN
       MAJOR
       R/AT NO.1026, RING ROAD
       BHOGADI
       MYSURU CITY PIN-570017.

2.     THE DIVISIONAL MANAGER
       HDFC-ERGO GENERAL INSURANCE CO. LTD
       2ND FLOOR, MYSORE TRADE CENTER
                           2



    OPP KSRTC BUS STOP, B.N.ROAD
    MYSURU PIN-570001.
                                       ...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.
04.07.2019, PASSED IN MVC NO.1623/2016, ON THE FILE
OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER,
MACT, SRIRANGAPATANA, 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 04.07.2019 passed

by the Principal Senior Civil Judge & Member, MACT,

Srirangapatana in MVC No.1623/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 14.11.2016 at about 05.45

P.M., the claimant was proceeding in the motorbike

bearing Registration No.KA-13-EF-5520 as a pillion

rider and the said motor bike was ridden by his friend

Balaraju in a slow and cautious manner and when

they reached near German Press Gate, on

Malemahadeshwara main road, Mysore, at that time,

the driver of the Car bearing Registration No.KA-01-

MG-9672 drove the same in a rash and negligent

manner and dashed to the claimant's motorbike. 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 insurer of the offending

vehicle have appeared through counsel and filed

written statement in which the averments made in the

petition were denied.

It was pleaded by the owner that the petition

itself is false and frivolous in the eye of law. It was

further pleaded that the accident was due to the rash

and negligent riding of the vehicle by the rider of the

motorbike and not due to the negligence of the driver

of the offending vehicle. 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.

It was pleaded by the insurer 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. It was

further pleaded that the accident was due to the rash

and negligent riding of the vehicle by the rider of the

motorbike and he did not have valid driving licence as

on the date of the accident. The alleged Car was not

holding registration certificate, fitness certificate and

permit to ply on the road as on the date of the

accident and as such, the owner of the vehicle has

violated the policy conditions. 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. Prakash was examined as

CW-1 and got exhibited documents namely Ex.P1 to

Ex.P39 and Ex.C1 to Ex.C7. On behalf of the

respondents, neither examined any witness nor

exhibited any documents. 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.8,05,000/- 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 Sanath Kumara K.M., learned counsel

for the claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was working as a driver and earning Rs.15,000/- per

month, but the Tribunal has taken the notional income

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

Secondly, CW-1, the doctor has stated in his

evidence that the claimant has suffered disability of

39.2% to the left leg and 52.8% to the right leg and

total disability to both lower limbs is at 92%. But the

Tribunal has erred in taking the whole body disability

at only 30%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. 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 B. Pradeep, learned

counsel for the Insurance Company has raised

following counter contentions:

Firstly, even though the claimant claims that he

was earning Rs.15,000/- per month, he has not

produced any other documents to establish his income

except producing driving licence as per Ex.P38.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Secondly, CW-1, the doctor has stated in his

evidence that the claimant has suffered disability of

39.2% to the left leg and 52.8% to the right leg and

total disability to both lower limbs is at 92%. The

Tribunal to assess the whole body disability, has

considered 1/3rd of the total limb disability suffered by

the claimant and has rightly assessed the whole body

disability at 30%.

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.

Even though the claimant claims that he was

earning Rs.15,000/- per month, except producing the

driving licence, 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 2016, the

notional income has to be taken at Rs.9,500/- p.m.

As per wound certificate, the claimant has

sustained fracture of shaft of right femur, fracture of

middle 1/3rd of left femur, fracture of shaft of right

tibia and sublaxation of IMTP joint. CW-1, the doctor

has stated in his evidence that the claimant has

suffered disability of 39.2% to the left leg and 52.8%

to the right leg and total disability to both lower limbs

is at 92%. Therefore, taking into consideration the

deposition of the doctor, CW-1 and injuries

mentioned in the wound certificate, I am of the

opinion that the whole body disability can be assessed

at 35%. The claimant is aged about 21 years at the

time of the accident and multiplier applicable

to his age group is '18'. Thus, the claimant is

entitled for compensation of Rs.7,18,200/-

(Rs.9,500*12*18*35%) 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 5 months. Therefore, the claimant is entitled for

compensation of Rs.47,500/- (Rs.9,500*5 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

claimant was treated as inpatient for more than 19

days. 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.25,000/- to Rs.40,000/-.

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 90,000 90,000 Medical expenses 1,50,000 1,50,000 Food, nourishment, 15,000 15,000 conveyance and attendant charges Loss of income during 31,000 47,500 laid up period Loss of amenities 25,000 40,000 Loss of future income 4,54,000 7,18,200 Future medical expenses 15,000 15,000 Future Marriage 25,000 25,000 Prospects Total 8,05,000 11,00,700

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.11,00,700/- as against Rs.8,05,000/- 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 shall carry interest at 6% per

annum.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 9%

p.a. (the enhanced compensation shall carry interest