Sri Shekhar Shetty vs Sri Santhosh Poojary
2022 Latest Caselaw 9315 Kant

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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.2089 OF 2019(MV)
BETWEEN:

SRI SHEKHAR SHETTY
S/O LATE JAGANNATH SHETTY
AGED ABOUT 71 YEARS
R/O HEDDARI GADDE MANE
AMASEBAILU
KUNDAPURA TALUK.
                                         ...APPELLANT
(BY SMT. MADHU R., ADV. FOR
    SRI.K PRASANNA SHETTY, ADV.)

AND:

1.     SRI SANTHOSH POOJARY
       S/O NAGU POOJARY
       AGED ABOUT 37 YEARS
       R/O THUMBELARU, AMASEBAILU POST
       KUNDAPURA TALUK-576101.

2.     UNIVERSAL SAMPO GENERAL
       INSURANCE COMPANY LTD
       BRANCH OFFICE: MANGALORE
       OPP: CITY HOSPITAL
       KADRI, MANGALORE-572102.
                                      ...RESPONDENTS
(BY SRI.B.C. SHIVANNA GOWDA, ADV. 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:03.10.2018 PASSED IN MVC NO.874/2017 ON THE
FILE OF THE ADDITIONAL DISTRICT JUDGE AND
ADDITIONAL MACT, UDUPI (SITTING AT KUNDAPURA),
KUNDAPURA, 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 03.10.2018 passed

by Additional District Judge and Additional MACT,

Udupi, (Sitting at Kundapura), Kundapura in MVC

No.874/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 15.02.2017 at about 03.00

P.M., the claimant was traveling in Mahindra Jito

Vehicle bearing Registration No.KA-20-D-6583, as a

owner of the Goods (loaded with cows) from

Amasebailu towards Hosanagara Gudigal side in a

rash and negligent manner. When he reached near

Hulikal Forest check post, Nidagodu Village, Nagara

Hobli, Shivamogga, due to high speed and rash and

negligent driving of the driver of the said vehicle lost

control over it and dashed against the lorry which was

coming from opposite direction. 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 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. Madhusoodhan Naik was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P10. 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.3,97,200/- 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 Madhu. R, learned counsel for

Sri K. Prasanna Shetty, learned counsel for the

claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was a agriculturist and also doing coolie and earning

Rs.20,000/- per month, but the Tribunal has taken the

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

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

evidence that the claimant has suffered disability of

90% in respect of whole body. But the Tribunal has

erred in taking the whole body disability at only 70%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 10 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 'pain and sufferings' and other heads are on

the lower side. The Tribunal has failed to grant any

compensation towards 'loss of amenities'. Hence, he

sought for allowing the appeal.

7. On the other hand, Sri B. C. Shivanna

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

evidence that the claimant has suffered disability of

90% to the whole body but he has not assessed the

limb disability. The Tribunal considering the injuries

sustained by the claimant, has rightly assessed the

whole body disability at 70%.

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.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.

As per wound certificate, the claimant has

sustained lacerated wound over right cheek, lacerated

wound over right arm, lacerated wound over left

shoulder, fracture of upper shaft of femur and fracture

of left humerous mid shaft. PW-2, the doctor has

stated in his evidence that the claimant has suffered

disability of 90% to the whole body but he has not

assessed the limb disability. At the time of the

accident, the claimant was aged about 72 years.

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 70%. Since claimant is aged

about 72 years at the time of the accident, the

multiplier applicable to his age group is '5'. Thus,

the claimant is entitled for compensation of

Rs.4,62,000/- (Rs.11,000*12*5*70%) 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 10 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, the

claimant is entitled for the compensation under the

head of 'loss of amenities' for Rs.30,000/-.

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 75,000 75,000 Medical expenses 10,856 10,856 Food, nourishment, 15,000 15,000 conveyance and attendant charges Loss of income during 2,330 33,000 laid up period Loss of amenities 0 30,000 Loss of future income 2,94,000 4,62,000 Total 3,97,186 6,25,856

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.6,25,856/- as against Rs.3,97,186/-.

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/-