Mr. Ashwath Saliyan vs Mr. Abdul Nisar R
2022 Latest Caselaw 7451 Kant

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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.3888 OF 2018(MV)

BETWEEN

MR. ASHWATH SALIYAN
S/O GANESH BANGERA
AGED ABOUT 24 YEARS
R/AT D NO.23-7-409
MISSION COMPOUND
NEAR MANGALA DEVI TEMPLE
MANGALORE TALUK
D K DISTRICT-575012
                                      ...APPELLANT
(BY SRI RAVISHANKAR SHASTRY G, ADVOCATE)

AND

1.    MR. ABDUL NISAR R
      S/O MUHAMMED KUNHI
      MAJOR
      R/AT H NO.418(8/222A) 8,
      FIRDOUSE HOUSE, EDNAD POST
      KUMBALA, KASARGOD
      KERALA STATE-671321

2.    THE BRANCH MANAGER
      UNITED INDIA INSURANCE CO. LTD.
      TIGGER HILLS, P.B.NO.19
      MUNICIPAL OFFICE ROAD
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     KASARAGOD 671121 KERALA
     REPRESENTED BY ITS DIVISIONAL MANAGER
     UNITED INDIA INSURNACE CO. LTD.,
     RAMBHAVANA COMPLEX
     NAVABHARATH CIRCLE
     KODIALBAIL
     MANGALORE TALUK
     D K DISTRICT-575003
                                     ...RESPONDENTS
(BY SRI B A RAMAKRISHNA FOR R2;
    NOTICE TO R1 IS SERVED BUT UNREPRESENTED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 03/01/2018, PASSED
IN MVC NO.896/2016, ON THE FILE OF THE I ADDL.
DISTRICT JUDGE & MACT-II, MANGALURU, 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 the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimant being

aggrieved by the judgment dated 03.01.2018 passed

by the Motor Accident Claims Tribunal, Mangaluru in

MVC No.896/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 14.10.2015 at about 01.30

P.M., when the petitioner was proceeding by riding his

motorcycle bearing Registration No.KA.19/EJ.508 from

Mangaluru towards Manjeshwara, by observing all

traffic rules and regulations, when he reached

Udyavar 10th Mile Udyawar Village, Manjeshwar, a Bus

bearing Registration No.KL.13/S.4972 came with high

speed and in a rash and negligent manner from

opposite direction in extreme wrong side of the road

and hit the petitioner's motor cycle. 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

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 and Dr.Mahabalesh Shetty was

examined as PW-2 and got exhibited documents

namely Ex.P.1 to Ex.P.13. On behalf of the

respondents, no witness was examined but exhibited

documents namely Ex.R.1 to Ex.R.3. 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.8,57,500/- 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, this

appeal has been filed.

6. Sri Ravishankar Shastry. G., learned

counsel for the claimant has raised the following

contentions:

Firstly, even though the claimant claims that he

was earning Rs.12,000/- per month, but the Tribunal

has taken the notional income as merely as

Rs.7,000/- per month.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

24% to his right lower limb. Due to disability, he is

unable to do his day to day work. But the Tribunal has

erred in taking the whole body disability at only 12%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 26 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. Per contra, Sri B. A. Ramakrishna, learned

counsel for the Insurance Company has raised

following counter contentions:

Firstly, even though the claimant claims that he

was earning Rs.12,000/- 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

24% to his right lower limb. The Tribunal considering

the injuries sustained by the claimant, has rightly

assessed the whole body disability at 12%.

Thirdly, considering the oral and documentary

evidence, the Tribunal has granted just and

reasonable compensation and it does not call for

interference.

Lastly, in view of judgment of the 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 claimants are entitled for 6% interest

but the Tribunal has granted 9% interest 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 has not produced any documents

with regard to 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 2015, the notional income has to be taken at

Rs.9,000/- p.m.

As per wound certificate, the claimant has

suffered type III-B open fracture of right femoral

condyle, tibial condyle with patella fracture, fracture of

occipital bone and cerebral concussion etc. PW-2, the

doctor has stated in his evidence that the claimant has

suffered disability of 24% to his right lower limb.

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 Tribunal is

justified in assessing the whole body disability at

12%. The claimant is aged about 22 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.2,33,280/-

(Rs.9,000*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 6 months. Therefore, the claimant is entitled for

compensation of Rs.54,000/- (Rs.9,000*6 months)

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

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 1,10,000 1,10,000 Medical expenses 4,05,789 4,05,789 Food, nourishment, 46,000 46,000 conveyance and attendant charges Loss of income during 42,000 54,000 laid up period Loss of amenities 50,000 50,000 Loss of future income 1,81,440 2,33,280 Future medical expenses 22,000 22,000 Total 8,57,229 9,21,069 ** Tribunal has rounded of the compensation of Rs.8,57,229/- to Rs.8,57,500/-

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.9,21,069/-.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 9%

p.a. (the enhanced compensation amount shall carry

interest at 6% per annum) 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.

Sd/-

JUDGE

HA/-