Karnataka High Court

Ravi @ Ravikiran vs Mahesh R C on 28 June, 2022

Bench: H T Prasad

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 28TH DAY OF JUNE 2022

                    BEFORE

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

          MFA No.8413 OF 2019(MV)

BETWEEN

RAVI @ RAVIKIRAN
S/O. R. SHIVANNA NAIK
AGED ABOUT 23 YEARS
OCC NURSING HOMES
R/O. 4TH MAIN, 2ND CROSS
DURGAMBIKA BADAVANE
NITTUVALLI
DAVANGERE TQ-577001.
                                    ...APPELLANT

(BY SMT. SARITHA KULKARNI., ADV.)

AND

1.    MAHESH R C
      S/O. S.S.R. GNANESHWARA
      AGE 21 YEARS
      R/O. JAYANAGARA C BLOCK
      BHAVAJI BADAVANE
      BEHIND MOUNTEVEREST SCHOOL
      DAVANGERE TQ AND DIST-577001.
                          2




2.   SRI.S.R. GNANESHWARA
     S/O. S. RANGAPPA
     AGED ABOUT 53
     R/O. JAYANAGARA C BLOCK
     BHAVAJI BADAVANE
     BEHIND MOUNT EVEREST SCHOOL
     DAVANGERE-577001.

3.   THE MANAGER
     IFFCO TOKIO GENERAL
     INSURANCE CO. LTD.,
     4TH AND 5TH FLOOR
     IFFCO TOWER, PLOT NO.3
     SECTOR 29, GURGAON-122001.

                                    ...RESPONDENTS

(BY SRI.MURALIDHAR NEGAVAR, ADV. FOR R3:
NOTICE TO R1 & R2 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV   ACT   AGAINST    THE JUDGMENT   AND AWARD
DATED.13.06.2018 PASSED IN MVC NO. 438/2017 ON
THE FILE OF THE II ADDITIONAL SENIOR CIVIL
JUDGE   AND   JMFC,   DAVANAGERE,    PARTLY   ALLO
WING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.


     THIS MFA COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                          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 13.6.2018 passed by II Addl.

Senior Civil Judge & IV Addl. MACT, Davanagere in

MVC 438/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 21.2.2017 when the

claimant was proceeding towards bus stand near

Dhaba stop near Saraswathi nagar, SS Hospital Road,

at that time, motorcycle bearing registration No.KA-

17-EU-7210 being ridden by its rider at a high speed

and in a rash and negligent manner, dashed to 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 riding of the offending vehicle by

its rider.

4. On service of notice, the respondents

appeared through counsel and filed written statements

in which the averments made in the petition were

denied.

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.Prabhu Basavanagowda

was examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P14. On behalf of the

respondents, one witness was examined as RW-1 and

got exhibited documents namely Ex.R1 to Ex.R2. The

Claims Tribunal, by the impugned judgment, inter alia,

held that the accident took place on account of rash

and negligent riding of the offending vehicle by its

rider, as a result of which, the claimant sustained

injuries. The Tribunal further held that the claimant is

entitled to a compensation of Rs.321,723/- 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. The learned counsel for the claimant has

raised the following contentions:

Firstly, even though the claimant claims that he

was doing nursing work and earning Rs.15,000/- per

month and produced Ex.P-14 Educational documents,

but the Tribunal has taken the notional income as

merely as Rs.10,000/- per month.

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

evidence that the claimant has suffered disability of

35% to lower limb. 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 11 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 incidental expenses are on the lower side.

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.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, the doctor has stated in his

evidence that the claimant has suffered disability of

35% to lower limb. 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.

Fourthly, the interest awarded by the Tribunal at

8% p.a. on the compensation amount is on the higher

side. 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 riding of the offending

vehicle by its rider.

The claimant claims that he was earning

Rs.15,000/- per month and produced Ex.P-14

educational document to show that he has completed

Nursing course. 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 of middle shaft of left tibia and

fibula. He has underwent CRIF with IMIL nail

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

that the claimant has suffered disability of 35% to

lower limb. Therefore, taking into consideration the

deposition of the doctor, PW-2 and injuries mentioned

in the wound certificate, the Tribunal has rightly taken

the whole body disability at 10%. The claimant is

aged about 21 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.237,600/- (Rs.11,000*12*18*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 11 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.5,000/- to Rs.10,000/-.

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

inclined to enhance the compensation awarded by the

Tribunal under the head of 'loss of amenities' from

Rs.5,000/- to Rs.25,000/- and under the head of

'pain and sufferings' from Rs.40,000/- to Rs.50,000/-.

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 40,000 50,000 Medical expenses 35,723 35,723 Food, nourishment, 5,000 10,000 conveyance and attendant charges Loss of income during 20,000 33,000 laid up period Loss of amenities 5,000 25,000 Loss of future income 216,000 237,600 Total 321,723 391,323

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.391,323/-.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 8%

p.a. (enhanced amount shall carry interest at 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 28.6.2022 passed by

this Court, the claimant is not entitled for interest for