Karnataka High Court

Punith Kumar G vs Kumar M 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.2941 OF 2020(MV)

BETWEEN:

Punith Kumar G.,
S/o L.Gurumurthy,
Now aged 22 years,
R/at No.60, I Main Road,
Kodigehalli, Doddaballapura Taluk,
Bangalore Rural District,
Bangalore-561203.                              ... Appellant

(By Sri.T.C. Sathish Kumar., Advocate)

AND:

1.     Kumar M.,
       S/o Murugesh,
       Major,
       R/at No.1095, Patalamma Layout,
       Kadugodi Plantation,
       Kadugodi, Bangalore-67.

2.     Rajagopal N.,
       Major,
       R/at Old No.166, New No.1154,
       IV Cross, Chowdaiah Block,
       R.T.Nagar, Bangalore-560 032.

3.     The Branch Manager,
       HDFC ERGO General Insurance Co. Ltd.,
       NO.25/1, II Floor, Building No.2,
                            2



     Shankaranarayana building,
     M.G. Road, Bangalore-560 001.      ... Respondents

(By Smt. M.U.Tanuja, Advocate for R2:
Sri. B.Pradeep, Advocate for R3:
Notice to R1 is dispensed with)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:29.01.2020 passed
in MVC No.3914/2018 on the file of the VII Additional SCJ
and ACMM, Member MACT-3, Bengaluru, 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 29.01.2020 passed

by MACT, Court of Small Causes, Bengaluru in MVC

No.3914/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 15.05.2018 at about 2.30

p.m., the claimant was proceeding on motorcycle

bearing registration No.KA-43/L-3949 as a pillion rider

from S.S.Gati towards his house on Doddaballapura

Gowribidanur road. At that time, a canter bearing

registration No.KA-05/D-0706 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.3

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 claimant himself. 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 Nos.1 and 2 did not appear

before the Tribunal inspite of service of notice and

were 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.Mohammed Javid was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P21. On behalf of the

respondents, neither any witness was examined nor

got exhibited documents. 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.4,33,909/- along with interest @

9% p.a. and directed the Insurance Company to

deposit the compensation amount along with interest.

Being aggrieved, this appeal has been filed.

6. Sri T.C.Sathish Kumar, the learned counsel

for the claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was doing Fashion designing and Fabricator work and

earning Rs.18,000/- per month, but the Tribunal has

taken the notional income as only Rs.8,500/- per

month.

Secondly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 3 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, he sought for enhancement of

compensation.

7. On the other hand, Sri B.Pradeep, the

learned counsel for the Insurance Company has raised

following counter contentions:

Firstly, even though the claimant claims that he

was earning Rs.18,000/- 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 9% 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 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.18,000/- 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 2018, the notional income has to be

taken at Rs.12,500/- p.m. Due to the accident, the

claimant has sustained fracture mid shaft of left femur

and concussive head injury. Considering the same, the

Tribunal has rightly assessed the whole body disability

as 15%. The claimant was 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.4,05,000/- (Rs.12,500*12*

18*15%) 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 3 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.10,000/- to Rs.30,000/-, 'loss of

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

'Attendant charges and conveyance' from Rs.5,000/-

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

for a period of one month, i.e., Rs.12,500/-.

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 30,000 Medical expenses 109,509 109,509 Food, nourishment, 5,000 8,000 conveyance and attendant charges Loss of income during 4,000 12,500 laid up period Loss of amenities 10,000 30,000 Loss of future income 275,400 405,000 Future medical expenses 20,000 20,000 Total 433,909 615,009

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.6,15,009/- as against Rs.4,33,909/- 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 @ 9%

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

compensation) from the date of filing of the claim