Santhosh vs Vasudeva
2022 Latest Caselaw 9335 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.6965 OF 2019(MV)

BETWEEN:

Santhosh,
S/o Tangappan,
Aged about 43 years,
R/a Vategindi Village,
Madoor Post,
Kundapura Taluk.                              ... Appellant

(By Sri.Nagaraja Hegde, Advocate)

AND:

1.     Vasudeva,
       S/o Ganapa,
       Aged about 41 years,
       R/at Shedigundi Mane,
       Moodur Post,
       Kundapura Taluk.

2.     The New India assurance Co. Ltd.,
       1st Floor, Pushpa Building,
       Main road Kundapura,
       By its Divisional Manager.          ... Respondents

(By Sri.S.V.Hegde Mulkhand, Advocate for R2:
Notice to R1 is served and unrepresented)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:06.07.2019 passed
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in MVC No.669/2018 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 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 06.07.2019 passed

by the MACT, Udupi (sitting at Kundapura) in MVC

No.669/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 22.03.2018 at about 11.30

hours, the claimant was walking on the eastern side

mud portion of Shedigundi side towards Vategundi

side. When he reached near Vategundi Shedigundi

road, Mudoor village, Kundapur Taluk at that time, a

motorcycle bearing registration No.KA-20/EH-5109

came from Shedigundi side being ridden by its rider at

a high speed and in a rash and negligent manner,

dashed against 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 riding of the offending vehicle by

its rider.

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. 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 negligence of the claimant

himself. It was further pleaded that the rider 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.

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.Monappa Naik was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P15. On behalf of the

respondents, no witness was examined but got

exhibited 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 rider,

as a result of which, the claimant sustained injuries.

The Tribunal further held that the claimant is entitled

to a compensation of Rs.4,56,600/- along with

interest @ 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 Nagaraja Hegde, the learned counsel for

the claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was doing mason work and earning Rs.18,000/- per

month, but the Tribunal has taken the notional income

as only Rs.9,000/- per month.

Secondly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 13 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' and other

incidental expenses are on the lower side. The

Tribunal failed to award any compensation for 'loss of

amenities'. Hence, he sought for enhancement of

compensation.

7. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Firstly, even though the claimant claims that he

was earning Rs.18,000/- 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, 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 judgment and award.

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.18,000/- 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 laceration over the medial

aspect of the left leg, starting 2 cm below medial

melleolus extending upward with open fracture of the

bone and open left ankle pillion fracture dislocation.

Considering the injuries suffered and considering the

evidence of the doctor, the Tribunal has rightly taken

the whole body disability at 14.5%. The claimant

was aged about 40 years at the time of the accident

and multiplier applicable to his age group is '15'.

Thus, the claimant is entitled for compensation of

Rs.3,26,250/- (Rs.12,500*12*15*14.5%) 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 13 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 of the opinion that the claimant is entitled

to compensation of Rs.30,000/- under the head 'loss

of amenities'.

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 40,000 40,000 Medical expenses 80,000 80,000 Food, nourishment, 10,000 10,000 conveyance and attendant charges Loss of income during 56,700 56,700

laid up period Loss of amenities 0 30,000 Loss of future income 2,34,900 3,26,250 Future medical expenses 35,000 35,000 Total 4,56,600 5,77,950

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.5,77,950/- as against Rs.4,56,600/- 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 excluding

interest for the compensation awarded under the head

of 'future medical expenses'.

Sd/-

JUDGE Cm/-