Karnataka High Court

Bheema Naik vs Lokesh S Honnappanaver on 29 June, 2022

Bench: H T Prasad

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 29TH DAY OF JUNE 2022

                         BEFORE

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

                MFA No.8963 OF 2019(MV)

BETWEEN:

Bheema Naik,
S/o Hala Naik,
Aged about 44 years,
Occ: Labour work
at present no work,
R/o Kanasu Nilaya,
Near HKR Circle,
Nittuvalli, Davanagere Taluk-577001.      ... Appellant

(By Smt. Saritha Kulkarni, Advocate)

AND:

1.     Lokesh S Honnappanaver,
       S/o Sri. Sidappa T.H.,
       Aged 23 years,
       R/o 792/13,
       Jayanagar A Block,
       Near Kalidas Circle,
       Davanagere Taluk
       and District-577001.

2.     Smt. G.R. Hemalatha,
       W/o T.H. Sidappa,
       Aged about 49 years,
       R/o # 792/13, Jayanagar A Block,
       Near Kalidas Circle,
       Davanagere City.
                             2




3.   The Manager,
     Sri. Ram General Insurance Co. Ltd.,
     Opp: Nandi Petrol Bunk,
     Near K.S.R.T.C. Bus Stand,
     P.B. Road, Davanagere-577001.        ... Respondents

(By Sri.B.C. Shivanne Gowda, Advocate 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:07.12.2018 passed
in MVC No.792/2017 on the file of the II Additional Senior
Civil Judge and JMFC, VI, MACT, Davanagere, 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 07.12.2018 passed

by MACT, Davanagere in MVC No.792/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 10.06.2017 at about 7.30

p.m., the claimant was proceeding by walk near

Bhoomika Nagara, Opposite Saibaba temple,

Davanagere. At that time, the motorcycle bearing

registration No.KA-17/NT-037173 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 driving of the offending vehicle by

its driver.

4. On service of notice, the respondent Nos.1

to 3 appeared through counsel and filed written

statements in which the averments made in the

petition were denied. The age, avocation and income

of the claimant and the medical expenses are 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.P12. On behalf of the

respondents, two witnesses were examined as RW-1

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

to Ex.R3. 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.2,33,950/- along with interest @ 8% p.a. and

directed the Insurance Company to deposit the

compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. Smt.Saritha Kulkarni, the learned counsel

for the claimant has raised the following contentions:

Firstly, even though the claimant claims that he

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

has taken the notional income as only Rs.8,000/- per

month.

Secondly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 12 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. Hence, she sought for enhancement of

compensation.

7. On the other hand, Sri B.C.Shivanne

Gowda, 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, 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.

     Thirdly,    in view of the law laid down by a

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 rate of interest awarded by the

Tribunal at 8% p.a. 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.

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 fracture of left leg.

Considering 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 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.1,84,800/-

(Rs.11,000*12*14* 10%) 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 12 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.35,000/- to Rs.45,000/-, 'loss of

amenities' from Rs.5,000/- to Rs.35,000/-, 'food,

conveyance and nourishment' from Rs.5,000/- to

Rs.8,000/-, 'loss of income during laid-up period' for a

period of three months, i.e., Rs.33,000/-

(Rs.11,000*3).

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 56,547 56,547 Food, nourishment, 5,000 8,000 conveyance and attendant charges

Loss of income during 8,000 33,000 laid up period Loss of amenities 5,000 35,000 Loss of future income 1,34,400 1,84,800 Total 2,43,947 3,62,347

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.3,62,347/- as against Rs.2,43,947/- awarded by

the Tribunal.

In view of the law laid down by a Division Bench

of this Court in JOYEETA BOSE (supra) the

enhanced compensation carries interest @ 6% p.a.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 8%

p.a. (interest @ 6% p.a. on the enhanced