Karnataka High Court

Brahmalingu @ N Brahmalingachari vs Neha Agarwal on 30 May, 2022

Bench: H T Prasad

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 30TH DAY OF MAY 2022

                     BEFORE

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

          MFA No.8776 OF 2019(MV)


BETWEEN:

BRAHMALINGU @ N BRAHMALINGACHARI
S/O NINGACHARI,
AGED ABOUT 49 YEARS,
R/AT GOWRIPURA VILLAGE,
K SHETTAHALLI HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT - 571 438.
                                   ...APPELLANT
(BY SRI.SREENIVASAN M.Y.M, ADVOCATE)

AND:

1. NEHA AGARWAL,
   MAJOR,
   W/O AYUSH AGARWAL,
   R/AT B-1015, COSMOS,
   EXECUTIVE APARTMENTS,
   PALAM VIHAR, GURGOAN,
   HARYANA STATE - 122 017.

2. THE MANAGER,
   HDFC GENERAL INSURANCE COMPANY LTD.,
   NO.25/1, 3RD FLOOR, BUILDING NO-2,
                            2



  SHANKARANARAYANA BUILDING,
  M G ROAD, BANGALORE - 560 002.
                                 ...RESPONDENTS
(BY SRI. B PRADEEP, ADVOCATE OF R2;
    NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
23.07.2019 PASSED IN MVC NO.45/2018, ON THE
FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND
MACT, SRIRANGAPATNA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS MFA COMING ON FOR ORDERS 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 23.07.2019 passed

by Additional Senior Civil Judge & MACT,

Srirangapatna in MVC No.45/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 01.10.2017 in between

02.45 P.M and 03.00 P.M. on Mysuru-Bengaluru road,

near Gowripura Village, Srirangapatna, the claimant

proceeded on his motor bike bearing Registration

No.KA-11-E-6909 along with his mother, when he

came near Gowripura Gate, in order to go to

Gowripura, he was stopped his motor bike near road

divider, at that time, the driver of Hundai Car bearing

Registration No.HR-26-C-8934, drove the same in a

rash and negligent manner and dashed against the

motor bike 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 and not

on the part of the driver of the offending vehicle. 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, Dr. Harsha A. H. was examined as

PW-2 and Dr. Karunakar was examined as PW-3 and

got exhibited documents namely Ex.P1 to Ex.P49. On

behalf of the respondents, neither examined any

witness nor exhibited any document. 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.3,65,070/- 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 Sreenivasa M. Y., learned counsel for

the claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was working as tailor and carpentry work and earning

Rs.20,000/- per month, but the Tribunal has taken the

notional income as merely as Rs.7,000/- per month.

Secondly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 13 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. Pradeep, 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, the injuries suffered by the claimant

are minor in nature. He was treated as inpatient only

for a period of 13 days. 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.

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 claims that he was earning

Rs.20,000/- 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 abrasion present over the right side or fore

head, Deformity present over the left leg and bleeding

present over through the nose and other injuries.

The claimant examined the doctor as PW-2.

The Tribunal considering the evidence of the doctor,

considering the injuries sustained by the claimant and

wound certificate, has rightly assessed the whole

body disability at 15%. The claimant is aged

about 48 years at the time of the accident and

multiplier applicable to his age group is '13'.

Thus, the claimant is entitled for compensation of

Rs.2,57,400/- (Rs.11,000*13*12*15%) 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 03 months. Therefore, the claimant is entitled for

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

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

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He was

treated as inpatient for more than 13 days in the

hospital. He has suffered lot of pain during treatment

and he has to suffer with the disability stated by the

doctor throughout his life. Considering the same, I am

inclined to enhance the compensation awarded by the

Tribunal under the head of 'loss of amenities' from

Rs.15,000/- to Rs.40,000/- and 'pain and suffering'

from Rs.30,000/- 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 1,14,270 1,14,270 Food, nourishment, 13,000 13,000 conveyance and attendant charges Loss of income during 14,000 33,000 laid up period Loss of amenities 15,000 40,000 Loss of future income 1,63,800 2,57,400 Future medical expenses 15,000 15,000 Total 3,65,070 5,12,670

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.5,12,670/- as against Rs.3,65,070/- awarded

by the Tribunal.

In view of judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE', the

enhanced compensation shall carry at 6% interest per

annum.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 9%

p.a. (enhanced compensation shall carry interest at