Sri Thimmappa Dore H N vs Sri B H Kantharaju
2022 Latest Caselaw 9690 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.6802 OF 2019(MV)

BETWEEN

SRI THIMMAPPA DORE H N
S/O T NANJAPPA
AGED ABOUT 42 YEARS
OLD R/O HEGGANAHLLI
TURUVEKERE TQ
NOW R/A NAGAVALLI
HEBBUR HOBLI
TUMKUR TALUK AND
TUMKUR DISTRICT-577101.

                                    ...APPELLANT

(BY SRI. M B RYAKHA, ADV.)

AND

1 . SRI B H KANTHARAJU
    S/O HONNEGOWDA
    AGED ABOUT 40 YEARS
    R/O BENAKERE
    NAGALAPURA POST
    TURUVEKERE TALUK
    TUMKUR DISTRICT-577101.
                          2




2 . THE MANAGER
    UNITED INDIA INSURANCE CO LTD
    ISSUED OFFICE AT TURUVEKERE
    SERVICE ADDRESS:
    THE MANAGER
    UNITED INDIA INSURANCE CO LTD
    B H ROAD,TUMKUR-577101.
                                ...RESPONDENTS

(BY SRI.Y.K.SHESHAGIRI RAO, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH)

    THIS MFA FILED U/S 173(1) OF MV ACT
AGAINST     THE    JUDGMENT     AND     AWARD
DATED:07.10.2018 PASSED IN MVC NO.1237/2017
ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE
AND MACT, TUMAKURU, 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 7.10.2018 passed by MACT,

Tumakuru in MVC 1237/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 23.3.2017 when the

claimant was proceeding on two wheeler bearing

registration No.KA-04-HG-0840 on Dabbeghatta in

front of Hemavathi Office, Turuvekere, at that time,

another two wheeler bearing registration No.KA-03-

EQ-2327 being ridden by its rider 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 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.Thyagaraju was examined

as PW-2 and got exhibited documents namely Ex.P1

to Ex.P13. On behalf of the respondents, one witness

was examined as RW-1 and got exhibited documents

namely Ex.R1 to Ex.R4. 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.266,062/- 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 Gunman at Belli Petrol Bunk and

earning Rs.20,000/- 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 disability of

30% to lower limb and 10% to whole body. But the

Tribunal has erred in taking the whole body disability

at only 7%.

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.

Fourthly, PW-2 the doctor has stated that the

claimant requires an amount of Rs.35,000/- to

Rs.40,000/- to undergo surgery for removal of

implants. But the Tribunal has granted meager

compensation under the head of 'future medical

expenses'. 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.20,000/- 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

30% to lower limb and 10% to whole body. The

Tribunal considering the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 7%.

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 earning

Rs.20,000/- 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 fracture both bones of right leg confited

with x-ray right leg. PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

30% to lower limb and 10% to whole body.

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 10%. The claimant is 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.198,000/-

(Rs.11,000*12*15*10%) 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.33,000/- (Rs.11,000*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.15,000/- to Rs.40,000/- and

under the head of 'pain and sufferings' from

Rs.35,000/- to Rs.45,000/-.

The claimant has examined the doctor PW-2,

who in his testimony has stated that the claimant

requires about Rs.35,000/- to Rs.40,000/- towards

'future medical expenses'. Hence, I am inclined to

enhance the compensation awarded by the Tribunal

under the head of 'future medical expenses' from

Rs.15000/- to Rs.30,000/-.

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 35,000 45,000 Medical expenses 52,762 52,762 Food, nourishment, 23,500 23,500 conveyance and attendant charges Loss of income during 24,000 33,000 laid up period Loss of amenities 15,000 40,000 Loss of future income 100,800 198,000 Future medical expenses 15,000 30,000 Total 266,062 422,262

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.422,262/-.

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.

In view of the order dated 8.3.2022 passed by

this Court, the claimant is not entitled for interest for

the delayed period of 224 days in filing the appeal.

Sd/-

JUDGE

DM