Dasharathappa @ Dasharathakumar vs Nithin. K. B
2022 Latest Caselaw 9689 Kant

                              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.6643 OF 2019(MV)

BETWEEN:

Dasharathappa
@ Dasharathakumar,
S/o Lokeshappa,
Aged about 44 years,
Agriculturist,
R/o Hirekandavadi Village,
Holalkere Taluk-577526,
Chitradurga District.                    ... Appellant

(By Sri.Shashidhara R., Advocate)

AND:

1.     Nithin K.B.,
       S/o Basavaraj K.J.,
       Major, R/o #60,
       Kodagavalli Village,
       Holalkere Taluk-577526.

2.     The Divisional Manager,
       National Insurance Co. Ltd.,
       Opp. Dental College, 2nd Floor,
       Melagiri Plaza,
       Davanagere pin-577 001.             ... Respondents

(By Sri.H.S.Lingaraj, Advocate for R2:
Notice to R1 is dispensed with)
                             2



      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:04.06.2019 passed
in MVC No.714/2017 on the file of the Senior Civil Judge
and JMFC, Holalkere, 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 04.06.2019 passed

by MACT, Holalkere in MVC No.714/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 12.01.2017 at about 7.00

p.m., the claimant was proceeding on motorcycle

bearing registration No.KA-16/AB-4681 as a pillion

rider from Holalkere town to Davanagere. When they

reached near the bridge between Sasalu and Andanor

Village, at that time, a car bearing registration No.KA-

16/C-4836 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.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 rash and negligent riding of

the vehicle by the rider of the motorcycle. It was

further pleaded that the driver 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, Dr.Raju was examined as PW-2

and Dr.Madhusudan was examined as PW-3 and got

exhibited documents namely Ex.P1 to Ex.P14 and C1

to C2. On behalf of the respondents, one witness was

examined as RW-1 and got exhibited documents

namely Ex.R1 to Ex.R5. 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.5,91,105/- 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 R.Shashidhara, the learned counsel for

the claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was doing agricultural work and also doing business

and earning Rs.15,000/- per month, but the Tribunal

has taken the notional income as only Rs.6,000/- per

month.

Secondly, due to the accident the claimant has

suffered grievous injuries. He has examined the

Orthopedic Surgeon as PW-2. In his evidence, he has

deposed that the claimant has suffered 52.5%

permanent physical disability to right upper limb and

PW-3 Plastic Surgery Surgeon has deposed that the

claimant has suffered 10% disability to his face

compared to whole body. The Tribunal has assessed

the whole body disability at 20% which is on the lower

side.

Thirdly, due to the accident he has suffered

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 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', 'loss of

amenities' and other incidental expenses are on the

lower side.

Lastly, due to the accident he has undergone

surgery, the doctor has deposed that he requires

Rs.80,000/- for removal of implants. The Tribunal has

not granted any compensation for 'future medical

expenses'. Hence, he sought for enhancement of

compensation.

7. On the other hand, Sri H.S.Lingaraj, the

learned counsel for the Insurance Company has raised

following counter contentions:

Firstly, even though the claimant claims that he

was earning Rs.15,000/- 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 Orthopedic Surgeon and PW-3 -

Plastic Surgery Surgeon have opined that the claimant

has suffered 52.5% permanent physical disability.

Considering the same the Tribunal has rightly

assessed the whole body disability as 20%.

Thirdly, considering the evidence of the doctors

and considering the injuries sustained by the claimant

and 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 and the original

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.15,000/- 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. Due to the accident, the

claimant has sustained comminuted fracture of right

distal radius, head injury with fracture of temporal

bone, fracture of anterior and lateral wall maxillary

sinus, fracture of frontal sinus, fracture of frontal

sinus, fracture of right frontal bone with displaced

inner table and fracture of right lateral orbital wall.

PW-2, the Orthopedic Surgeon has stated in his

evidence that the claimant has suffered 52.5%

disability to right upper limb and 17.5% to whole

body. PW-3 - Plastic Surgery Surgeon has deposed

that the claimant has suffered 10% disability to his

face. Considering the evidence of PWs. 2 and 3 and

considering the injuries suffered by the claimant, I am

of the opinion that the whole body disability can be

assessed as 27.5%. The claimant was aged about 42

years at the time of the accident and multiplier

applicable to his age group is '14'. Thus, the claimant

is entitled for compensation of Rs.5,08,200/-

(Rs.11,000*12*14*27.5%) 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 7 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 inclined to enhance the compensation

awarded by the Tribunal under the head of 'pain and

sufferings' from Rs.25,000/- to Rs.40,000/-, 'loss of

amenities' from Rs.10,000/- to Rs.30,000/- and 'loss

of income during laid-up period' for a period of 3

months, i.e., Rs.33,000/- (Rs.11,000*3).

The claimant has examined the doctor PW-2 -

Orthopedic Surgeon, who in his testimony has stated

that the claimant requires about Rs.80,000/- towards

removal of implants. Considering the evidence of the

doctor and considering the injuries suffered by the

claimant, I am of the opinion that the claimant

requires Rs.35,000/- for 'future medical expenses'.

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 25,000 40,000 Medical expenses 3,29,505 3,29,505 Food, nourishment, 15,000 15,000 conveyance and attendant charges Loss of income during 10,000 33,000 laid up period Loss of amenities 10,000 30,000 Loss of future income 2,01,600 5,08,200 Future medical expenses 0 35,000 Total 591,105 9,90,705

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.9,90,705/- as against Rs.5,91,105/- 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

Cm/-