Karnataka High Court

Sri Lakshmana vs The New India Assurance Company on 25 May, 2022

Bench: H T Prasad

                        1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25TH DAY OF MAY 2022

                     BEFORE

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

            MFA No.4135 OF 2020(MV)

BETWEEN

SRI LAKSHMANA
S/O GUDDADARANGAPPA
AGED ABOUT 48 YEARS
R/O MELUKUNTE VILLAGE
SIRA TALUK-572137
TUMAKURU DISTRICT.
                                   ...APPELLANT
(BY SRI V B SIDDARAMAIAH, ADVOCATE)

AND

1.    THE NEW INDIA ASSURANCE COMPANY
      LTD.,
      BRANCH OFFICE,
      OPP:SRIRAM MANDIRA TEMPLE
      1ST FLOOR, BAR LINE, K R EXTENSION
      GENERAL KARIYAPPA ROAD
      TUMAKURU-572101
      REPRESENTED BY ITS BRANCH
      MANAGER.

2.    SRI KIRANKUMAR H R
      S/O RAMAIAH H V
                          2




     AGED ABOUT 48 YEARS
     R/O NEAR KALIDASA JUNIOR COLLEGE
     VENKATESHPURA, SIRA GATE-
     TUMAKURU-572106.
                                ...RESPONDENTS
(BY SRI C.R.RAVISHANKAR, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED.
14.06.2019, PASSED IN MVC NO.881/2017, ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC., AND
ADDITIONAL MACT, SIRA, 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 and decree dated 14.6.2019 passed

by Senior Civil Judge and Addl. MACT, Sira in MVC

881/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 26.6.2017, the claimant was

attending the nature call by the side of Madaluru-

Baraguru Road, near Huligere Village, at that time,

bike bearing registration No.KA-02-EL-9741 being

ridden 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.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.Prasad Murugappa Gowda

was examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P17. 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 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.207,000/- along with

interest at the rate of 7% 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 mason work and earning Rs.15,000/- 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 upper 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 fracture of left clavicle, which is grievous in

nature. 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 heads are on the lower side.

Fourthly, the claimant has undergone surgery

and doctor has deposed that the claimant requires

Rs.40,000/- for removal of implants. But the Tribunal

has not awarded any 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.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

30% to upper limb and 10% to whole body. PW-2 is

not the treated doctor. The injuries sustained by the

claimant is only fracture of clavicle and there cannot

be any disability for the said injury. The whole body

disability assessed by the Tribunal at 7% is on the

higher side.

Thirdly, even though the doctor has deposed

that the claimant requires Rs.40,000/- for 'future

medical expenses', the claimant has not produced any

documents either before the Tribunal or before this

court with regard to future treatment taken.

Therefore, the claimant is not entitled for any

compensation under the head of 'future medical

expenses'.

Fourthly, 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.

Fifthly, the interest awarded by the Tribunal at

7% 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.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.

As per wound certificate, the claimant has

sustained fracture of left clavicle. PW-2, the doctor

has stated in his evidence that the claimant has

suffered disability of 30% to upper 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

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.184,800/-

(Rs.11,000*12*14*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 1 month. Therefore, the claimant is entitled for

compensation of Rs.11,000/- (Rs.11,000*1 month)

under the head 'loss of income during laid up period'.

The claimant has examined the doctor PW-2,

who in his testimony has stated that the claimant

requires about Rs.40,000/- for removal of implants.

But the claimant has not produced any documents

either before the Tribunal or before this court with

regard to future treatment taken. Hence, he is not

entitled for any compensation 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 25,000 25,000 Medical expenses 58,338 58,338 Food, nourishment, 11,000 11,000 conveyance and attendant charges Loss of income during 8,000 11,000 laid up period Loss of amenities 10,000 10,000 Loss of future income 94,080 184,800 Total 206,418 300,138 Rounded off 207,000 300,200

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.3,00,200/-.

The Insurance Company is directed to deposit

the compensation amount along with interest 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 .

The enhanced amount shall carry interest at

6% p.a.

In view of the order dated 26.08.2021 passed by