Mohammed Javid vs Mallesh Shinde
2022 Latest Caselaw 9430 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 23RD DAY OF JUNE 2022

                        BEFORE

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

              MFA No.8956 OF 2019(MV)
BETWEEN:

MOHAMMED JAVID
AGED ABOUT 19 YEARS
S/O ABDUL RAZAK
RES / AT DOOR NO.6-7B
6TH BLOCK, KRISHNAPURA
KATIPALLA, SURATHKAL
MANGALURU TALUK
D.K.DISTRICT-575011.
                                          ...APPELLANT
(BY SRI.KRISHNAMOORTHY D., ADV.)

AND

1.     MALLESH SHINDE
       S/O SHETTAPPA
       AGED ABOUT 27 YEARS
       RES/AT SANGATIKOPPA
       KALGHATAGE, DHARWAD-581204
       AT PRESENT R/AT
       DOOR NO 161, NEAR AYYAPPA TEMPLE
       HOSALLI POST AND VILLAGE
       YELLAPURA TALUK
       UTTARA KANNADA DISTRICT-581412.

2.     RELIANCE GENERAL
       INSURANCE COMPANY LTD.,
       MAXIMUS COMMERCIAL COMPLEX
                           2



     4TH FLOOR, LIGHT HOUSE HILL ROAD
     HAMPANAKATTA
     MANGALURU-575001
     REP- BY ITS MANAGER
                                       ...RESPONDENTS
(BY SRI.B.PRADEEP, ADV. FOR R2:
    NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION.173(1) OF MV
ACT,   AGAINST    THE   JUDGMENT    AND    AWARD
DATED:27.04.2019 PASSED ON MVC NO.1096/2018 ON
THE FILE OF THE IV ADDITIONAL DISTRICT AND
SESSIONS    JUDGE,   MACT,   MANGALURU,    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 27.04.2019 passed

by the IV Additional District and Sessions Judge,

Mangaluru in MVC No.1096/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 06.03.2018 at about 10.00

A.M., the claimant as a pillion rider along with one

Mohammed Ghajal as a rider were proceeding on a

motorcycle bearing Registration No.KA-01-EM-2317

from Mangaluru towards B.C.Road slowly and

carefully. When they reached Ramalkatte of Thumbe

Village of Bantwal Taluk, the driver of the Lorry

bearing Registration No.KA-25-AA-0105 drove the

same with high speed, rash and negligent manner

from Thumbe side and suddenly took U-turn without

giving any signal and dashed to the motorcycle of the

clamant. 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. It was further pleaded

that the accident was due to the rash and negligent

riding of the vehicle by the rider himself. The driver

of the offending vehicle did not have valid driving

licence, no valid permit and did not have fitness

certificate 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 in support his

case examined 5 witnesses including doctors and

produced documents. On behalf of the respondents,

no witness was examined but exhibited a document.

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.9,36,800/- 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 Krishnamorrthy. D, learned counsel for

the claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was working as Salesman in a Chicken Store and

earning Rs.700/- per day, but the Tribunal has taken

the notional income as merely as 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 50 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 under the head of 'loss of amenities'.

Hence, he sought for enhancement of compensation.

7. On the other hand, Sri B. Pradeep, learned

counsel for the Insurance Company has raised

following counter contentions:

Firstly, even though the claimant claims that he

was earning Rs.700/- per day, he has not produced

any documents to establish his income. Therefore, the

Tribunal has rightly assessed the income of the

claimant notionally.

Secondly, the injuries suffered by the claimant

are minor in nature. 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.700/- per day by working as a Salesman in the

Chicken store. 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.

As per wound certificate, the claimant has

sustained bilateral superior and inferior public rami

fracture, left socro-iliac joint dislocation, right

proximal ulna fracture, styloid fracture of right radius

and etc. PW-4, the doctor has stated in his evidence

that the claimant has suffered disability of 22% to

back, 23% to hip joint and 18% to right upper lip.

Therefore, taking into consideration the deposition of

the doctor, PW-4 and injuries mentioned in the

wound certificate, the Tribunal has rightly taken the

whole body disability at 20%. The claimant is aged

about 19 years at the time of the accident and

multiplier applicable to his age group is '18'. Thus,

the claimant is entitled for compensation of

Rs.5,40,000/- (Rs.12,500*12*18*20%) 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.37,500/- (Rs.12,500*3 months)

under the head 'loss of income during laid up period'.

The claimant was treated as inpatient for more

than 50 days in the hospital and thereafter, has

received further treatment. Hence, I am inclined to

enhance the compensation awarded under the head of

'conveyance, nourishment and attendance charges'

from Rs.15,000/- to Rs.25,000/-.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. 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 of the

opinion that the claimant is entitled for the

compensation under the head of 'loss of amenities' for

Rs.40,000/-.

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 50,000 Medical expenses 4,16,000 4,16,000 Food, nourishment, 15,000 25,000 conveyance and attendant charges Loss of income during 27,000 37,500 laid up period Loss of amenities 0 40,000 Loss of future income 3,88,800 5,40,000 Future medical expenses 40,000 40,000 Total 9,36,800 11,48,500

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.11,48,000/- as against Rs.9,36,800/- 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/-