Karnataka High Court

The Reliance General vs Gangadhara C V on 25 May, 2022

Bench: H T Prasad

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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.2519 OF 2020(MV)
       C/W MFA No.4621 OF 2020 (MV)

IN MFA No.2519 OF 2020

BETWEEN

THE RELIANCE GENERAL
INSURANCE COMPANY LTD.,
EAST WING, 5TH FLOOR
NO.28, CENTENARY BUILDING
M G ROAD
BENGALURU - 560001
NOW REPRESENTED BY MANAGER LEGAL
                                   ...APPELLANT
(BY SRI ASHOK N PATIL, ADVOCATE)

AND

1 . GANGADHARA C V
    S/O VENKATESHAPPA
    AGED ABOUT 24 YEARS
    R/AT MAACHINNEPALLI VILLAGE
    NALLAPPAREDDIPALLI,
    BAGEPALLI TALUK
    CHIKKABALLAPUR DISTRICT - 561207
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2 . THE MANAGER
    NITHYA ENETERPRISES
    OFFICE AT THAVAREKERE VILLAGE
    NANDAGUDI HOBLI
    HOSAKOTE TALUK
    BENGALURU - 562114
                                  ...RESPONDENTS
(BY SRI TEJAS.N, ADVOCATE FOR R1;
NOTICE TO R2 SERVED BUT UNREPRESENTED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
13.01.2020 PASSED IN MVC NO.4474/2018 ON THE
FILE OF THE X ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, MOTOR ACCIDENT CLAIMS TRIBUNAL,
BENGALURU (SCCH-16), AWARDING COMPENSATION
OF RS.16,09,600/- WITH INTEREST AT 9 PERCENT
P.A. (EXCLUDING FUTURE MEDICAL EXPENSES OF
RS.2,50,000/-) FROM THE DATE OF PETITION TILL
REALIZATION.

IN MFA No.4621 OF 2020

BETWEEN

SRI GANGADHARA C V
S/O. VENKATESHAPPA,
AGED ABOUT 25 YEARS,
R/AT MAACHINNEPALLI VILLAGE,
NALLAPPAREDDIPALLI,
BAGEPALI TALUK,
CHIKKABALLAPUR DISTRICT-561 207.
                                   ...APPELLANT
(BY SRI TEJAS N, ADVOCATE)
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AND

1.    THE MANAGER
      NITHYA ENTERPRISES,
      OFFICE AT THAVAREKERE VILLAGE,
      NANDAGUDI HOBLI,
      HOSAKOTE TALUK,
      BANGALORE-562 114.

      (OWNER OF TIPPER BEARING REG. NO.KA-53-C-
      9109)

2.    THE MANAGER
      RELIANCE GENERAL INSURANCE CO.LTD.,
      NO.28, EAST WING, 5TH FLOOR,
      CENTENARY BUILDING,
      M.G. ROAD,
      BANGALORE-560 001.

     (POLICY NO.141521823340034780 VALID FROM
     05-05-2018 TO 04-05-2019)
                                 ...RESPONDENTS
(BY SRI ASHOK N. PATIL, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
13.01.2020 PASSED IN MVC NO.4474/2018 ON THE
FILE OF THE X ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, MACT, BENGALURU (SCCH-16), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
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     THESE APPEALS COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                     JUDGMENT

MFA 2519/2020 is filed by the Insurance

Company and MFA 4621/2020 is filed by the claimant

under Section 173(1) of Motor Vehicles Act, 1988

(hereinafter referred to as 'the Act') being aggrieved

by the judgment and decree dated 13.1.2020 passed

by Court of Small Causes and MACT, Bengaluru in

MVC 4474/2018.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 14.7.2018, the claimant was

proceeding on his motorcycle near Shanthinekethana

School at Bagapalli, at that time, tipper lorry bearing

registration No.KA-53-C-9109 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.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

riding of the vehicle by the claimant himself. The

liability is subject to terms and conditions of the

policy. 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 and Dr.Ramesh was examined as

PW-4 and two more witnesses as PW-2 and 3 and got

exhibited documents namely Ex.P1 to Ex.P33. On

behalf of the respondents, neither any witness was

examined nor any document was produced. 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.16,09,600/- along

with interest at the rate of 9% p.a. and directed the

Insurance Company to deposit the compensation

amount along with interest. Being aggrieved, these

appeals have been filed.

6. The learned counsel for the Insurance

Company has raised following contentions:

Firstly, the claimant claims that he was working

in a Finance Office and earning a salary of Rs.14,000/-

per month and produced the offer letter at Ex.P-9, but

he has not produced the salary slips to prove his

income. In the absence of proof of income, the income

assessed by the Tribunal at Rs.10,617/- p.m. is on the

higher side.

Secondly, the claimant has examined the doctor

as PW-4. The doctor has stated in his evidence that

the claimant has sustained amputation of lower limb

above knee. The whole body disability assessed by the

Tribunal at 30% is on the higher side.

Thirdly, even though there is amputation, the

same has not affected his future earnings and

therefore, the claimant is not entitled for any

compensation towards 'future prospects'.

Fourthly, the doctor in his evidence has stated

that the claimant requires prosthesis fitment for right

lower limb and likewise the claimant has produced

Ex.P-32 estimation of cost issued by Rehabilitation

Service Proposal stating that an amount of

Rs.5,61,000/- is required. In the said ExP-32, it is not

mentioned as to which product has to be purchased

and what is the actual cost. Hence, the compensation

awarded by the Tribunal under the head of 'future

medical expenses' is on the higher side.

Fifthly, the compensation awarded by the

Tribunal under the head of 'marriage prospects and

disfigurement' is on the higher side.

Sixthly, the interest awarded by the Tribunal at

9% p.a. on the compensation amount is on the higher

side.

Seventhly, considering the injuries sustained by

the claimant and considering the age and avocation of

the claimant, the overall compensation awarded by

the Tribunal is on the higher side. Hence, he sought

for allowing the appeal filed by the Insurance

Company .

7 The learned counsel for the claimant has

raised the following contentions:

Firstly, the claimant claims that he was working

in a Finance Office and earning a salary of Rs.14,000/-

per month and produced the offer letter at Ex.P-9, but

the Tribunal has not considered the same and has

taken the notional income as merely as Rs.10,617/-

per month.

Secondly, the claimant has sustained grievous

injuries and his right leg has been amputed above

knee. Due to the said disability, he is unable to do his

day to day work. He has resigned from his job.

Therefore, there is 100% functional disability. The

Tribunal is not justified in taking the whole body

disability at 30%, which is on the lower side.

Thirdly, since the claimant is unable to do his

day to day work and there is 100% functional

disability, the claimant is entitled for future prospects

But the Tribunal has failed to consider future

prospects. In support of his contention, he has relied

upon the decision of the Apex Court in the case of

ERUDHAYA PRIYA vs. STATE EXPRESS TRANSPORT

CORPORATION LTD. 2020' SCC Online SC 601 and in

the case of 'PAPPU DEO YADAV vs. NARESH KUMAR

AND OTHERS' AIR 2020 SC 4424.

Fourthly, due to amputation of right leg, the

claimant requires prosthesis fitment and hence the

claimant has produced Ex.P-32 estimation of cost

issued by Rehabilitation Service Proposal stating that

an amount of Rs.5,61,000/- is required. But the

Tribunal is not justified in awarding a meager

compensation of Rs.2,50,000/- under the head of

'future medical expenses'.

Fifthly, the compensation awarded by the

Tribunal under the heads of 'marriage prospects and

disfigurement', 'loss of income during laid-up period'

and other heads is also on the lower side. Hence, he

sought for allowing the appeal filed by the claimant.

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 aged about 23

years and working in a Finance Office and earning a

salary of Rs.14,000/- per month and produced the

offer letter at Ex.P-9. But he has not produced the

salary slips to prove the said income. In the absence

of proof of income, 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.

As per wound certificate, the claimant has

sustained right leg below knee open injury with

crushed wound (grad II), right proximal with

comminuted shaft fracture, posterior of tibial injury.

PW-4, the doctor has stated in his evidence has

categorically stated that percentage of disability for

amputation of leg above knee is 85%. Even though

the claimant claim that due to the disability the

claimant has resigned from the job, but he has not

proved that he has been removed from the service

due to the disability and he has voluntarily quit his

job. Therefore, his claim that there is 100% functional

disability cannot be considered. However, considering

that the claimant has sustained amputation of leg

above knee, the whole body disability can be assessed

at 80%. In view of the law laid down by the Hon'ble

Apex Court in the case of ERUDAYA PRIYA (supra) and

PAPPU DEO YADAV (supra), the claimant is entitled for

future prospects. In view of the law laid down by the

Hon'ble Apex Court in the case of 'NATIONAL

INSURANCE CO. LTD. -v- PRANAY SETHI AND

OTHERS' AIR 2017 SC 5157, addition of 40% of the

income of the claimant towards future prospects has

to be considered. Hence, the monthly income of the

claimant is assessed at Rs.17,500/-

(Rs.12,500+40%). The claimant is aged about 23

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.30,24,000/- (Rs.17,500*12*18*80%) 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.37,500/- (Rs.12,500*3 months)

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

PW-4, the doctor in his evidence has stated that

the claimant requires prosthesis fitment for right lower

and likewise the claimant has produced Ex.P-32

estimation of cost issued by Rehabilitation Service

Proposal stating that an amount of Rs.5,61,000/- is

required. In the said Ex.P-32, it is not mentioned as to

which product has to be purchased and what is the

actual cost. The Tribunal considering the injuries and

evidence of the doctor, has rightly awarded

Rs.2,50,000/- towards 'future medical expenses'.

Considering the injuries and evidence of the

claimant, the Tribunal has right awarded Rs.80,000/-

towards 'marriage prospects and disfigurement'.

Considering the nature of injuries and evidence

of claimant and doctor, 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 100,000 100,000 Medical expenses 413,771 413,771 Food, nourishment, 16,000 16,000

conveyance and attendant charges Loss of income during 31,851 37,500 laid up period Loss of amenities 30,000 30,000 Loss of future income 687,960 30,24,000 Marriage prospects and 80,000 80,000 disfigurement Future medical expenses 250,000 250,000 Total 16,09,582 39,51,271

11. In the result, the appeals are disposed of.

The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.39,51,271/-.

In view of the Division Bench decision of this in

the case of Ms.Joyeeta Bose and others -v-

Venkateshan.V and others (MFA 5896/2018 and

connected matters disposed of on 24.8.2020),

the interest granted by the Tribunal at the rate of 9%

p.a. on the compensation amount is reduced to 6%

p.a.

The Insurance Company is directed to deposit