Karnataka High Court

Thippeswamy vs M/S United Insu. Co. Ltd on 22 June, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 22ND DAY OF JUNE 2022

                        BEFORE

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

               MFA No.218 OF 2021(MV)
BETWEEN:

THIPPESWAMY
S/O GOLLAPPA
AGE 32 YEARS
R/O NANDIPURA SONDEKOLA POST
CHITRADURGA TALUK
AND DISTRICT 577501
NOW R/O OPPOSITE FIRE STATION
MEDEHALLY ROAD
CHITRADURGA 577501.
                                         ...APPELLANT
(BY SRI.SPOORTHY HEGDE N., ADV.)

AND

1.     M/S UNITED INSU. CO. LTD
       BY ITS DIVISIONAL MANAGER
       NO 465/20, 6TH FLOOR
       8TH B MAIN, JAYANAGAR
       BANGALORE
       BRANCH OFFICE AT B D ROAD
       CHITRADURGA - 577501.

2.     SWAMY K
       S/O KADURAPPA
       AGED ABOUT 32 YEARS
       R/O NO 156/1E
       SOMESHWARA LAYOUT
                           2



     HULIMAVU B G ROAD
     BANGALORE 560076
                                       ...RESPONDENTS
(BY SRI. O MAHESH, ADV. FOR R1:)

      THIS MFA IS FILED UNDER SECTION.173(1) OF MV
ACT,    AGAINST    THE   JUDGMENT     AND    AWARD
DATED:07.02.2020 PASSED IN MVC NO.709/2018 ON THE
FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MACT-
V, CHITRADURGA, 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 07.02.2020 passed

by the II Additional Senior Civil Judge, Chitradurga in

MVC No.709/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 25.05.2018 at about 01.45

P.M., the claimant along with one Pratheeksha was

traveling in a Car bearing Registration No.KA-05-AG-

0715 from Godabanahal to Chitradurga. When they

reached near NH-13 near Erajjanahatty of Chitradurga

Taluk, the driver of the said Car drove the same in a

rash and negligent manner, so as to endanger to

human life and dashed against the bridge. 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 summons, the respondent

Nos.1 and 2 being 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 offending vehicle was insured

with Insurance Company and the policy was in force

as on the date of the accident and the driver of the

offending vehicle had valid driving licence. Hence, the

Insurance Company is liable to pay the compensation.

It was pleaded by the Insurance Company that

the driver of the offending vehicle did not possess

valid driving licence as on the date of the accident.

The liability is subject to terms and conditions of the

policy. The age, occupation and income of the

deceased are denied. It was further pleaded that the

quantum of compensation claimed by the claimants is

exorbitant. Hence, they 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-2 and Dr.Dinesh was examined as

PW-3 and got exhibited documents namely Ex.P8 to

Ex.P15. On behalf of the respondents, no witness was

examined but exhibited a document namely Ex.R1.

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.8,75,200/- 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 Spoorthy Hegde N., learned counsel for

the claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was doing Chapathi making business and earning

Rs.30,000/- 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 physical

disability of 75.22% to particular limb. But the

Tribunal has erred in taking the whole body disability

at only 15%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 37 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 O. Mahesh, learned

counsel for the Insurance Company has raised

following counter contentions:

Firstly, even though the claimant claims that he

was earning Rs.30,000/- 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 physical

disability of 75.22% to particular limb. The Tribunal

considering the evidence of the doctor and injuries

sustained by the claimant, has rightly assessed the

whole body disability at 15%.

Thirdly, the injuries suffered by the claimant are

minor in nature. He was treated as inpatient only for a

period of 37 days. 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.30,000/- 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 2018, the notional income has to be

taken at Rs.12,500/- p.m.

Due to the accident, the claimant has sustained

grievous injuries. PW-3, the doctor has stated in his

evidence that the claimant has suffered physical

disability of 75.22% to particular limb. Therefore,

taking into consideration the deposition of the doctor,

PW-3 and injuries mentioned in the wound certificate,

the whole body disability can be assessed at 16%.

The claimant is aged about 32 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.3,84,000/- (Rs.12,500*12*16*16%) 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 06 months. Therefore, the claimant is entitled for

compensation of Rs.75,000/- (Rs.12,500*6 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 37 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.25,000/- to Rs.40,000/- and 'pain and suffering'

from Rs.50,000/- to Rs.60,000/-.

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 50,000 60,000 Medical expenses 4,52,000 4,52,000 Food, nourishment, 35,000 35,000 conveyance and attendant charges Loss of income during 54,000 75,000 laid up period Loss of amenities 25,000 40,000 Loss of future income 2,59,200 3,84,000 Total 8,75,200 10,46,000

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.10,46,000/- as against Rs.8,75,200/-

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 @ 7%

p.a. (the enhanced compensation shall carry interest