Sri Nagaraju H S vs United India Insurance Company ...
2022 Latest Caselaw 9583 Kant

                        1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 24TH DAY OF JUNE 2022

                    BEFORE

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

          MFA No.7934 OF 2019(MV)

BETWEEN

SRI NAGARAJU H S
S/O SHIVAMADAPPA
AGED ABOUT 33 YEARS
RESIDING AT HOSAHALLI
C A KERE HOBLI
MADDUR TALUK
MANDYA DISTRICT.

                                    ...APPELLANT

(BY SRI.GIRIMALLAIAH, ADV.)

AND

1.    UNITED INDIA INSURANCE
      COMPANY LTD
      REGIONAL OFFICE T P HUB
      KRISHI BHAVAN
      6TH FLOOR
      HUDSON CIRCLE
      NRUPATHUNGA ROAD
      BENGALURU - 560001
      BY ITS MANAGER.
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2.   SRI DODDASWAM G N
     W/O LATE NANJEGOWDA
     NO 29, GORAVANAHALLI VILLAGE
     T NARASIPURA TALUK
     MYSORE DISTRICT.

                                    ...RESPONDENTS

(BY SRI. H.C. VRUSHABENDRAIAH, ADV.)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
19.03.2019 PASSED IN MVC NO. 7402/2016 ON THE
FILE OF THE II ADDITIONAL JUDGE AND XXVIII
ACMM, COURT OF SMALL CAUSES, MOTOR ACCIDENT
CLAIMS TRIBUNAL, COURT OF SMALL CAUSES,
BENGALURU (SCCH-13), PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION 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 dated 19.3.2019 passed by MACT,

Bengaluru in MVC 7402/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 9.8.2016 when the claimant

was proceeding on motorcycle bearing registration

No.KA-11-ED-5377 on the left of K.M.Doddi-Halaguru

Road, in front of Thirumala Bar at Thorebommanahalli

Village, Mandya, at that time, Tata Ace bearing

registration No.KA-55-0986 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 No.1

appeared through counsel and filed written statement

in which the averments made in the petition were

denied.

The respondent No.2 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.Naveen was examined as

PW-2 and two other witnesses as PW-3 and 4 and got

exhibited documents namely Ex.P1 to Ex.P22. On

behalf of the respondents, neither any witness was

examined nor any document was produced. 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.734,115/- 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. The learned counsel for the claimant has

raised the following contentions:

Firstly, even though the claimant claims that he

was working as ESP Operator and earning Rs.9,000/-

per month, but the Tribunal has taken the notional

income as merely as Rs.8,000/- per month.

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

evidence that the claimant has suffered permanent

disability of 79% to lower limb. Due to the said

disability, he is unable to do his day to day work. He

has resigned from his service. There is loss of income.

The Tribunal has failed to assess the functional

disability. The whole body disability assessed by the

Tribunal at only 25% is on the lower side.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 7 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. Further, the

Tribunal has failed to grant any compensation under

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

Hence, he sought for allowing the appeal.

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.9,000/- 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

79% to lower limb. The claimant has failed to prove

that due to the disability, he is unable to do his day to

day work and there is functional disability. Further, he

has failed to prove that he has been removed from the

service. The claimant himself has resigned from

service. The Tribunal considering the injuries

sustained by the claimant, has rightly assessed the

whole body disability at 25%.

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 judgment and award of the Tribunal.

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 working as ESP

Operator and earning Rs.9,000/- per month.

Therefore, the income of the claimant has to be taken

at Rs.9,000/- p.m.

As per wound certificate, the claimant has

sustained right distal femur fracture with broken

implant. PW-2, the doctor has stated in his evidence

that the claimant has suffered permanent disability of

79% to lower limb. The claimant has failed to prove

that due to the disability, he is unable to do his

regular and that he has been removed from service

and there is functional disability. Therefore, taking

into consideration the deposition of the doctor, PW-2

and injuries mentioned in the wound certificate, the

whole body disability can be taken at 28%. The

claimant is aged about 33 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.483,840/- (Rs.9,000*12*16*28%) 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 3 months. Therefore, the claimant is entitled for

compensation of Rs.27,000/- (Rs.9,000*3 months)

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

The claimant was treated as inpatient for more

than 7 days in the hospital and thereafter, has

received further treatment. 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 inclined to enhance the compensation

awarded by the Tribunal under the head of 'loss of

amenities' from Rs.20,000/- to 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 215,115 215,115 Food, nourishment, 40,000 40,000 conveyance and attendant charges

Loss of income during 0 27,000 laid up period Loss of amenities 20,000 40,000 Loss of future income 384,000 483,840 Future medical expenses 25,000 25,000 Total 734,115 880,955

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.880,955/-.

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

DM