Karnataka High Court
Channappa vs Somashekara H C on 21 June, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.2132 OF 2019(MV)
BETWEEN:
CHANNAPPA
S/O LATE CHIKKABOMMAIAH
AGED AOBUT 68 YEARS
R/AT BELUR AT POST
KOTHATHI HOBLI
MANDYA TALUK AND DISTRICT.
...APPELLANT
(BY SRI.SHRIPAD V SHASTRI, ADV. )
AND
1. SOMASHEKARA H C
S/O CHIKKAMARIYAIAH
SOMAYAJI DIAGNOSTICS
AND RESEARCH CENTRE
SOMAYAJI HOUSE, BUNTS HOSTEL
MANGALORE-575003.
2. TATA AIG GENERAL INSU., CO LTD
JP & DEVI JAMBUKESHWAR ARCADE
NO.69, MILLER ROAD
BENGALURU-560052.
...RESPONDENTS
(BY SRI.O.MAHESH, ADV. FOR R2:
NOTICE TO R1IS DISPENSED WITH)
2
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED28.11.2018 PASSED IN MVC NO.5915/2017 ON THE
FILE OF THE II ADDITIONAL JUDGE & XXVIII ACMM,
COURT OF SMALL CAUSES, MACT, BENGALURU (SCCH-
13), 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 28.11.2018 passed
by the II Additional Judge & XXVIII ACMM, Court of
Small Causes, Bengaluru in MVC No.5915/2017.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 10.09.2017 at about 06.30
A.M. the clamant was proceeding as a pillion rider in a
motorcycle bearing Registration No.KA-05-GB-6863
towards Mandya City on Bengaluru-Mysuru Road,
while the rider taking turn towards big bazaar in front
of East Police Station, Mandya City, at that time, the
driver of Car bearing Registration No.KA-19-AB-3600
drove the same at high speed in a rash and negligent
manner and dashed against the claimant's motor
cycle. 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
the offending vehicle had no valid permit 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, another witness as PW-2 and
Dr.Avinash Parthasarathy was examined as PW-3 and
got exhibited documents namely Ex.P1 to Ex.P16. On
behalf of the respondents, neither examined any
witness nor exhibited any documents on their behalf.
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.2,08,473/- 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. Sri Shripad V. Shastri, 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.25,000/-
per month, but the Tribunal has taken the notional
income as merely as Rs.9,000/- per month.
Secondly, PW-3, the doctor has stated in his
evidence that the claimant has suffered disability of
18% to left lower limb. But the Tribunal has erred in
taking the whole body disability at only 6%. He
further deposed that due to the accident, the claimant
has suffered grievous injuries, he undergone surgery
and he may be required Rs.30,000/- for future
medical expenses for removal of implants. But the
Tribunal has not granted any compensation for 'future
medical expenses'.
Thirdly, due to the accident, the claimant has
sustained grievous injuries. He was treated as
inpatient for a period of 6 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. The Tribunal has
failed to grant any compensation towards 'loss of
income during the laid up period. Hence, he sought for
allowing the appeal.
7. On the other hand, Sri O. Mahesh, learned
counsel for the Insurance Company has raised
following counter contentions:
Firstly, even though the claimant claims that he
was earning Rs.25,000/- 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-3, the doctor has stated in his
evidence that the claimant has suffered disability of
18% to left lower limb. The Tribunal considering the
injuries sustained by the claimant, has rightly
assessed the whole body disability at 6%. He further
contended that the injuries suffered by the claimant
are minor in nature. Even though the doctor has
deposed that the claimant is required Rs.30,000/- for
future medical expenses, the claimant has not
produced any document to show that he has
undergone surgery. Therefore, the Tribunal has rightly
not granted any compensation towards future medical
expenses.
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 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.25,000/- 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 open type I fracture left tibial plateau
(schatzker type VI) and he has also underwent wound
debridement, MIPPO with bicondylar plates and screws
to left tibia. PW-3, the doctor has stated in his
evidence that the claimant has suffered permanent
physical disability of 18% and he has also deposed
that fractures were reunited. Therefore, taking into
consideration the deposition of the doctor, PW-3 and
injuries mentioned in the wound certificate, the
Tribunal has rightly taken the whole body disability
at 6%. The claimant is aged about 67 years at the
time of the accident and multiplier applicable to his
age group is '5'. Thus, the claimant is entitled for
compensation of Rs.39,600/- (Rs.11,000*12*5*6%)
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 03 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'.
Due to the accident, the claimant has suffered
grievous injuries and also undergone surgery. He was
treated as inpatient for more than 6 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/-.
The claimant has examined the doctor PW-3,
who in his testimony has stated that the claimant
requires about Rs.30,000/- towards 'future medical
expenses' for removal of implants. Therefore,
considering the evidence of the doctor and the injuries
suffered by the claimant, I am of the opinion that the
claimant is entitled Rs.15,000/- under the head of
'future medical expenses'.
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 50,000 50,000
Medical expenses 76,073 76,073
Food, nourishment, 30,000 30,000
conveyance and
attendant charges
Loss of income during 0 33,000
laid up period
Loss of amenities 20,000 40,000
Loss of future income 32,400 39,600
Future medical expenses 0 15,000
Total 2,08,473 2,83,673
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.2,83,673/- as against Rs.2,08,473/- as
awarded by the Tribunal.
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.
Sd/-
JUDGE
HA/-
