Karnataka High Court

Sri. G. C. Shivaraj vs The New India Assurance on 26 May, 2022

Bench: H T Prasad

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 26th DAY OF MAY 2022

                         BEFORE

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

                MFA No.5286 OF 2018(MV)

BETWEEN:

Sri G.C.Shivaraj,
S/o.Chikkaputtaiah,
Aged about 47 years,
Resident of Halegabbadi Village,
Kanakapura Main Road,
Kaggalahalli Post,
Kanakapura Taluk,
Ramanagar Distirct.                       ... Appellant

(By Sri Girimallaiah, Advocate)

AND:

1.     The New India Assurance
       Company Limited,
       Motor T.P.Hub, II Floor,
       Mahalakshmi Chambers,
       No.9/2, M.G.Road,
       Bangalore - 560 037,
       By its Manager.

2.     Mr.Krishnamurthy D.
       S/o.Dasegowda,
       Major,
       Koratagere Doddi,
       Kanakapura Taluk,
       Ramanagara District.            ... Respondents
                            2




(By Sri A.N.Krishnaswamy, Advocate 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:01.03.2018 passed
in MVC No.680/2017 on the file of the XIII Additional
Judge, Court of Small Causes and Member, MACT (SCCH-
15), 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 01.03.2018 passed

by MACT, Bengaluru in MVC No.680/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 13.01.2017 at about 8.45

p.m., the claimant was proceeding on his motorcycle

bearing registration No.KA-05/JJ-2999 on the left side

of NH-209 road, near Kaggalahalli village, Harohalli

Hobli, Kanakapura Taluk. At that time, another Bajaj

Pulsor motorcycle bearing registration No.KA-53/EJ-

3870 being ridden by its rider 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 riding of the offending vehicle by

its rider.

4. On service of notice, the respondent Nos.1

and 2 appeared through counsel and filed separate

written statements 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 by respondent No.1 that the

liability is subject to terms and conditions of the

policy. It was further pleaded that the rider of the

offending vehicle had no DL at the time of the

accident. It was further pleaded that the claimant has

also contributed to the accident.

It was pleaded by respondent No.2 that the

offending vehicle is insured with the respondent No.1

and the same is valid at the time of the accident. It

was further pleaded that the accident has occurred

due to rash and negligent riding of the claimant

himself. Hence, they sought for dismissal of the

petition.

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.Chidanand K.J.C. was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P12. 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.2,36,500/- along with interest at

the rate of 8% 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 agriculture and sericulture work and

earning Rs.20,000/- 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

42% to left lower limb and 14% to whole body. But

the Tribunal has erred in taking the whole body

disability at only 10%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 17 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 has to suffer the disability

throughout his life. 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 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.20,000/- 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 the Tribunal has rightly assessed the

whole body disability as 10%.

Thirdly, the injuries suffered by the claimant are

minor in nature. Therefore, the overall compensation

awarded by the Tribunal is just and reasonable

compensation.

Fourthly, 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 8% 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.20,000/- per month. Even though he has produced

the RTC, he has not produced any documents such as

bank statement 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 Type 2 open compound fracture mid 1/3rd

both bones of left leg. PW-2, the doctor has stated in

his evidence that the claimant has suffered disability

of 42% to left lower limb and 14% to whole body.

Therefore, I am of the opinion that the whole body

disability has to be taken as 14%. The Tribunal has

rightly applied the multiplier of 13. Thus, the

claimant is entitled for compensation of Rs.2,40,240/-

(Rs.11,000*12*13*14%) on account of 'loss of future

income'.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He has

suffered lot of pain during treatment and he has to

suffer with the disability stated by the doctor

throughout his life. The claimant was treated as

inpatient for more than 17 days in the hospital and

thereafter, has received further treatment. Hence, I

am inclined to enhance the compensation awarded

under the head of 'diet and conveyance' from

Rs.10,000/- to Rs.15,000/-. Loss of income during

treatment has to be taken for three months, i.e.,

Rs.33,000/- (Rs.11,000*3). The compensation

awarded by the Tribunal under the head ''pain and

sufferings' has to be enhanced from Rs.30,000/- to

Rs.40,000/-, 'loss of amenities' from Rs.20,000/- to

Rs.40,000/-.

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 30,000 40,000 Medical expenses 25,500 25,500 Towards diet and 10,000 15,000 conveyance Loss of income during 16,000 33,000 laid up period Loss of amenities 20,000 40,000 Loss of future income 1,25,000 2,40,240 Future medical expenses 10,000 10,000 Total 2,36,500 4,03,740

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.4,03,740/- as against Rs.2,36,500/- 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 @ 8%

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

compensation) from the date of filing of the claim