Karnataka High Court

Shri T.Jagadish vs Sri Dinesh Singh on 27 June, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 27TH DAY OF JUNE 2022

                        BEFORE

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

              MFA No.4679 OF 2020(MV)

BETWEEN:

SHRI T.JAGADISH
S/O. LATE. THIMMAPPA
AGED ABOUT 56 YEARS
R/AT BHOVI COLONY
1ST BLOCK EAST,JAYANAGAR
BENGALURU 560011.
ALSO R/AT NO. 409
D MAIN, SHINIVASNAGAR
BSK 2ND STAGE, BENGALURU-50.
                                         ...APPELLANT
(BY SRI. N. GOPALAKRISHNA, ADV.)

AND:

1.     SRI DINESH SINGH
       S/O. DIROPAL SINGH
       MAJOR BY AGE
       SIDDHI, NO. 5, 1ST CROSS
       ADARSHNAGAR, 1ST STAGE
       NAGARABHAVI, BENGALURU-560072.

2.     ICICI LOMBARD GENERAL
       INSURANCE COMPANY LTD
       NO. 121, THE ESTATE, 9TH FLOOR
       DICKENSON ROAD, MG ROAD
                            2



     BENGALURU-560001
     REP BY ITS MANAGER.

3.   BHAGYA REDDY
     R/AT NO. SIDDHI NO. 5
     1ST CROSS, ADARSHNAGAR
     1ST STAGE, AGARABHAVI
     ENGALURU-560072.

4.   BMR REDDY
     R/AT NO. SIDDHI NO. 5
     1ST CROSS, ADARSHNAGAR
     1ST STAGE, NAGARABHAVI
     BENGALURU-560072.
                                     ...RESPONDENTS
(BY SRI.B.PRADEEP, ADV. FOR R2:
    NOTICE TO R1, R3 & R4 ARE DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT    AGAINST    THE   JUDGMENT    AND    AWARD
DATED:07.12.2019, PASSED IN MVC NO.7418/2017, ON
THE FILE OF THE III-ADDITIONAL JUDGE AND MEMBER,
MACT, COURT OF SMALL CAUSES, BENGALURU (SCCH-
18), 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 07.12.2019 passed

by the III Additional Judge & Member, MACT, Court of

Small Causes, Bengaluru in MVC No.7418/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 19.11.2017 at about 03.45

P.M., the claimant was riding the Honda Activa

bearing Registration No.KA-05-HV-8463, slowly and

cautiously on the extreme left side from Vijayanagar

Water Tank towards Summanahalli, when he reached

in front of Acharya Medical, Govindarajanagar,

Bengaluru, the driver of the Swift D'Zire Car bearing

Registration No.KA-03-MK-2749 suddenly opened the

Car door without observing the side mirror or

vehicular movements in a rash and negligently. As a

result of the same, 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

to 4 have appeared through counsel and only

respondent Nos.1 and 2 have filed written statement

in which the averments made in the petition were

denied.

It was pleaded by respondent No.1 that the

petition itself is false and frivolous in the eye of law.

It was further pleaded that he is not the owner of the

offending vehicle at the time of the accident and he

sold to Mrs.Bhagya Reddy, so he has no connection or

nexus with the accident. It was further pleaded that

the policy was in force. Hence, he prays to dismiss

the claim petition.

It was pleaded by respondent No.2 that the

petition itself is false and frivolous in the eye of law.

It was further pleaded that accident was due to the

rash and negligent riding of the vehicle by the

claimant himself. Both claimant and 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.

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. Nagaraj B. N. was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P13. On behalf of the

respondents, two witnesses were examined as RW-1

and RW-2 and got exhibited documents namely Ex.R1

to Ex.R17. 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.2,25,024/- along with interest at the rate of 8%

p.a. and directed the Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. Sri N. Gopalakrishna, learned counsel for

the claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was doing real estate business-cum-vegetable vendor

and earning Rs.25,000/- per month, but the Tribunal

has taken the notional income as merely as

Rs.7,500/- per month.

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

evidence that the claimant has suffered disability of

39% to left hand and 13% to the whole body. 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 5 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. 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.25,000/- 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

39% to left hand and 13% to the whole body. The

Tribunal considering the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 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.

Lastly, in view of judgment of the 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 claimants are entitled for 6% interest

but the Tribunal has granted 8% interest is on the

higher side. 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.25,000/- 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 avulsed laceration present over the front of

left leg measuring 43 cms X 21 cms X exposing the

crushed muscles and fractured bone fragment and

laceration present over back mid of left middle finger

measuring 2 cms exposing the fractured bone

fragment bleeding noted. PW-2, the doctor has stated

in his evidence that the claimant has suffered

disability of 39% to left hand and 13% to the whole

body. Therefore, taking into consideration the

deposition of the doctor, PW-2 and injuries mentioned

in the wound certificate, I am of the opinion that the

whole body disability can be assessed at 13%. The

claimant is aged about 53 years at the time of the

accident and multiplier applicable to his age group is

'11'. Thus, the claimant is entitled for compensation

of Rs.1,88,760/- (Rs.11,000*12*11*13%) 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 05 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, I am

inclined to enhance the compensation awarded by the

Tribunal under the head of 'loss of amenities' from

Rs.10,000/- to Rs.30,000/- and 'pain and suffering'

from Rs.30,000/- 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 30,000 40,000 Medical expenses 61,024 61,024 Food, nourishment, 10,000 10,000 conveyance and attendant charges Loss of income during 15,000 33,000 laid up period Loss of amenities 10,000 30,000 Loss of future income 99,000 1,88,760 Total 2,25,024 3,62,784

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.3,62,784/- against Rs.2,25,024/- awarded by

the Tribunal.

In view of judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE', the

enhanced compensation shall carry interest at 6% per

annum.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 8%

p.a. (the enhanced compensation shall carry interest