Karnataka High Court

Shiva Kumar vs Mahesh Reddy Y J on 22 June, 2022

Bench: H T Prasad

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     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.5523 OF 2019(MV)

BETWEEN:

Shiva Kumar,
S/o Late. Honnegowda,
Now aged about 48 years,
R/at Yannagere, Solur Hobli,
Magadi Taluk,
Ramanagara District.                        ... Appellant

(By Sri.Rangegowda N.R., Advocate)

AND:

1.     Mahesh Reddy, Y.J.,
       S/o Jayaram Reddy, Y.N.,
       Aged major,R/at No.4/1,
       Kamala Nilaya, Y.V. Annaiah Road,
       Kanakapura Road,
       Yalachenahalli, Bangalore-560 078.

2.     The Manager,
       Bajaj Allianz Gen.
       Insurance Co. Ltd.,
       Golden Heights, 4th Floor,
       NO.1/2, 59th Cross,
       4th M Block, Rajajinagar,
       Bangalore-560 010.                    ... Respondents

(By Sri.H.N.Keshava Prashanth, Advocate for R2:
Notice to R1 is dispensed with)
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      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:27.02.2019 passed
in MVC No.806/2018 on the file of the I Additional Small
Causes    Judge,   Motor    Accident    Claims   Tribunal,
Bengaluru(Scch-11) , partly allowing the claim petition for
compensation and seeking enhancement of compensation.

      This MFA, coming on for admission, this day, this
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 27.02.2019 passed

by MACT, Bangalore (SCCH-11) in MVC No.806/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 25.09.2017 at about 6.45

p.m., the claimant was proceeding on motorcycle

bearing registration No.KA-41/V-9154 on the left side

of the road on NH-48, Lakkenahalli Hand Post, Solur

Hobli, Magadi Taluk. At that time, a car bearing

registration No.KA-51/MH-3666 being driven by its

driver at a high speed and in a rash and negligent

manner, dashed to the vehicle of the claimant. 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 appeared through counsel and respondent no.2

filed written statement in which the averments made

in the petition were denied. The age, avocation and

income of the claimant and the medical expenses are

denied. It was pleaded 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 claimant himself. It was

further pleaded that 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 liability is

subject to terms and conditions of the policy. 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, other two witnesses as PW-2 and

PW-3 and got exhibited documents namely Ex.P1 to

Ex.P22. On behalf of the respondents, neither any

witness was examined nor got exhibited the

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.4,65,042/- along with interest @ 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 Rangegowda, the 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.20,000/-

per month, but the Tribunal has taken the notional

income as only Rs.8,500/- per month.

Secondly, due to the accident the claimant

suffered previous injuries, he has examined the doctor

as PW-3. In his evidence he has deposed that

claimant has suffered 35% disability to left lower limb

and 21% to right lower limb and 28% whole body

disability. But the Tribunal has erred in taking the

whole body disability at only 10%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 11 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 and he has to suffer the disability

and unhappiness throughout his life. Considering the

same, the compensation granted by the Tribunal

under the heads of 'pain and sufferings', 'loss of

amenities' and other incidental heads are on the lower

side.

Fourthly, the doctor has deposed that the

claimant requires another Rs.60,000/- for further

surgery. The Tribunal has granted only Rs.20,000/-

for 'future medical expenses'. Hence, he sought for

enhancement of compensation.

7. On the other hand, Sri H.N.Keshava

Prashanth, the learned counsel for the Insurance

Company has raised following counter contentions:

Firstly, even though the claimant claims that he

was earning Rs.20,000/- 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, the doctor has assessed the whole

body disability as 28% he is not the treated doctor.

The Tribunal after considering the injuries suffered by

the claimant, has rightly assessed the whole body

disability as 10%.

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.

Fourthly, at the time of the accident the claimant

was aged about 47 years but the Tribunal has wrongly

considered the age of the claimant as 25 years and

wrongly applied the multiplier as 18 instead of 13.

Fifthly, in view of the law laid down by a

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 rate of interest awarded by the

Tribunal at 9% p.a. is on the higher side. Hence, he

sought for dismissal of the appeal.

8. Heard the learned counsel for the parties.

Perused the judgment and award and the original

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.20,000/- 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. Due to the accident, the

claimant has sustained fracture of proximal right

femur and fracture of both bones of left leg. PW-3, the

doctor has stated in his evidence that the claimant has

suffered disability of 35% to left lower limb and

51% to right lower limb, assessed the whole body

disability as 28%. Considering the evidence of the

doctor and considering the wound certificate Ex.P3

and discharge summary Ex.P8, I am of the opinion

that the whole body disability can be assessed as

20%. The claimant was aged about 47 years at the

time of the accident and multiplier applicable to his

age group is '13'. Thus, the claimant is entitled for

compensation of Rs.3,43,200/- (Rs.11,000*12*13*

20%) on account of 'loss of future income'.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He was

treated as inpatient for more than 11 days in the

hospital and thereafter, has received further

treatment. He has suffered lot of pain during

treatment and he has to suffer with the disability and

unhappiness throughout his life. Considering the

same, I am inclined to enhance the compensation

awarded by the Tribunal under the head of 'pain and

sufferings' from Rs.30,000/- to Rs.40,000/-, 'loss of

amenities' from Rs.20,000/- to Rs.40,000/-, 'food,

conveyance and nourishment' from Rs.3,300/- to

Rs.10,000/-, 'loss of income during laid-up period' for

a period of 3 months, i.e., Rs.33,000/-

(Rs.11,000*3).

In respect of 'future medical expenses' is

concerned, the Tribunal after considering the evidence

of the doctor has granted just and reasonable

compensation under the said head.

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 30,000 40,000 Medical expenses 2,05,022 2,05,022 Food, nourishment, 3,300 10,000 conveyance and attendant charges Loss of income during 3,120 33,000 laid up period Loss of amenities 20,000 40,000 Loss of future income 1,83,600 3,43,200 Future medical expenses 20,000 20,000 Total 4,65,042 6,91,222

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.6,91,222/- as against Rs.4,65,042/- awarded by

the Tribunal.

In view of the law laid down by a Division Bench

of this Court in JOYEETA BOSE (supra) the

enhanced compensation carries interest @ 6% p.a.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 9%

p.a. (interest @ 6% p.a. on the enhanced

compensation) from the date of filing of the claim