Mr Ashraf Muhammad @ Muhammad ... vs The National Insurance Co. Ltd
2022 Latest Caselaw 9913 Kant

                          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.7462 OF 2019(MV)

BETWEEN:

MR ASHRAF MUHAMMAD @
MUHAMMAD ASHRAF @ ASHRAF
S/O ABDUL LATHEEF @ LATHEEF
AGED ABOUT 24 YEARS
R/O BANGARU KODI HOUSE
BELATHOOR VILLAGE AND POST
BANTWAL TALUK
PRESENTLY RESIDING AT
ZUM ZUM MANZIL, THIRUVAILU
VAMANJOOR, MANGALURU TALUK.
                                         ...APPELLANT
(BY SRI.GURUPRASAD B R., ADV.)

AND:

1.    THE NATIONAL INSURANCE CO. LTD.,
      2ND FLOOR, RASIK CHAMBERS
      OPP. TO CENTRAL MARKET
      MANGALURU - 575 001
      REPRESENTED BY ITS MANAGER.

2.    A.M. D SOUZA
      S/O MARCEL D SOUZA
      AGED MAJOR
      RESDING AT SHOP NO.4
      GURUKRIPA COMPLEX
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    OPP. TO KARAVALI HOTEL
    N.H.17 UDUPI JUNCTION
    UDUPI - 576 101.
                                       ...RESPONDENTS
(BY SRI.ANUP SEETHA RAMA RAO, ADV. FOR R1:
NOTICE TO R2 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
09.08.2018 PASSED IN MVC NO. 546/2016 ON THE FILE
OF THE PRL. SENIOR CIVIL JUDGE AND MACT,
MANGALURU D.K, PARTLY ALLOWING THE CLAIM
PETITION    FOR    COMPENSATION    AND    SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSIONS, 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 09.08.2018 passed

by Principal Senior Civil Judge & MACT, Mangaluru,

D.K., in MVC No.546/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 09.09.2014 at 5.30 A.M.,

near Kunigal-Nelamangala, NH-48 road,

Mahadevapura Village, Kasaba, Nelamangala Taluk,

Bengaluru, when he was traveling in a Bus bearing

Registration No.KA-20/C-4939 towards Bengaluru, the

driver of the said Bus drove the same in a high speed

in a rash and negligent manner so as to endanger

human life and dashed to the hind portion of Lorry

bearing Registration No.KA-11-5472 which was going

ahead of the Bus. 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. 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

driving of the vehicle driver of the offending vehicle.

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.

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.Suresh Mankar was examined

as PW-2 and another witness as PW-3 and got

exhibited documents namely Ex.P1 to Ex.P14. On

behalf of the respondents, neither examined any

witness nor exhibited any document on their behalf.

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.2,02,990/- 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 a clerk of Billing Section at City Super

Bazar, Malleswara, Bengaluru and earning Rs.11,000/-

per month, but the Tribunal has taken the notional

income as merely as Rs.6,000/- per month.

Secondly, due to the accident, the clamant has

suffered spinal injury. He has undergone surgery. He

has examined the doctor as PW-2, who has stated in

his evidence that the claimant has suffered permanent

disability of 20%. But the Tribunal has erred in taking

the whole body disability at only 7%. He further

deposed that the claimant requires Rs.25,000/- for

removal of implants. But the Tribunal has failed to

grant any compensation towards 'future medical

expenses'.

Thirdly, claimant has produced medical bills as

per Ex.P10 and 11 for Rs.94,310/-. But the

compensation of Rs.83,310/- awarded by the Tribunal

is on lower side.

Lastly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 14 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, the learned counsel for

the Insurance Company has raised following counter

contentions:

Firstly, even though the claimant claims that he

was earning Rs.11,000/- 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 permanent

disability of 20%. The Tribunal considering the injuries

sustained by the claimant, has rightly assessed the

whole body disability at 7%.

Thirdly, even though the doctor deposed that the

claimant is required Rs.25,000/- for removal implants,

the claimant has not produced any document even

before this Court that he has undergone any surgery.

Therefore, the Tribunal has rightly not granted any

compensation under the head of 'future medical

expenses'.

Lastly, 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 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.11,000/- 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 2014, the notional income has to be taken

at Rs.8,500/- p.m.

As per wound certificate, the claimant has

sustained tenderness and swelling over the lumber

region (lower back), fracture of lumber vertebra 2.

PW-2, the doctor has stated in his evidence that the

claimant has suffered permanent disability of 20% due

to the spinal injury. 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 12%. 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.2,20,320/-

(Rs.8,500*12*18*12%) 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 02 months. Therefore, the claimant is entitled for

compensation of Rs.17,000/- (Rs.8,500*2 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 14 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.20,000/- and 'pain and sufferings'

from Rs.10,000/- to Rs.25,000/-.

In respect of medical expenses is concerned, the

claimant has produced Medical Bills and Discharge

Summary which are marked at Ex.P10 ad 11.

Considering the evidence of the claimant, I am of the

opinion that the compensation awarded by the

Tribunal for 'medical expenses' Rs.83,310/- has to be

enhanced to Rs.94,310/-.

In respect of future medical expenses is

concerned, the claimant has examined the doctor PW-

2, who in his testimony has stated that the claimant

requires about Rs.25,000/- for removal implants.

Hence, I am of the opinion that the claimant is

entitled for Rs.12,000/- under the head of '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 10,000 25,000 Medical expenses 83,310 94,310 Food, nourishment, 11,200 11,200 conveyance and attendant charges Loss of income during 2,800 17,000 laid up period Loss of amenities 10,000 20,000 Loss of future income 85,680 2,20,320 Future medical expenses 0 12,000 Total 2,02,990 3,99,830

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.3,99,830/- as against Rs.2,02,990/- 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.

In view of the order dated 16.03.2022 passed by

this Court, the claimant is not entitled for interest for

the delayed period of 275 days in filing the appeal.

Sd/-

JUDGE

HA/-