Karnataka High Court

Kanumappa [email protected] vs Sampat Singh on 31 May, 2022

Bench: H T Prasad

                        1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 31ST DAY OF MAY 2022

                      BEFORE

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

            MFA No.8056 OF 2019(MV)


BETWEEN:

KANUMAPPA K @ KANUMAPPA,
S/O KANUMAPPA,
AGED ABOUT 61 YEARS,
OCC: NIL,
R/O KUNCHIGNAL, CHITRADURGA TQ,
C/O MARAPPA, 3571/4, 1ST STAGE,
2-B CROSS, SHIVAKUMARASWAMY LAYOUT,
DAVANAGERE - 577 001.
                                        ...APPELLANT
(BY SMT. SARITHA KULKARNI, ADVOCATE)

AND:

1. SAMPAT SINGH,
   S/O BHAGIRATH SINGH,
   AGE: MAJOR,
   OCC: TRANSPORT BUSINESS,
   R/O WARD NO.9, CHHAU VILLAGE,
   UDAIPURVAWATI TQ., DISTRICT,
   JHUNJHUUUUNUN-333 001.
   RAJASTHAN STATE.

2. THE DIVISIONAL MANAGER,
   THE NEW INDIA ASSURANCE CO., LTD.,
   A M ARCHADE, C G HOSPITAL ROAD,
   DAVANGERE - 577 001.
                           2



                                    ...RESPONDENTS
(BY SMT.Y.ARUNA, ADVOCATE FOR R2;
        NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT,   AGAINST   JUDGMENT   AND    AWARD    DATED
25.04.2019, PASSED IN MVC NO.999/2018, ON THE FILE
OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER,
MACT-IV, DAVANGERE, 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 25.04.2019 passed

by the MACT, Davangere in MVC No.999/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 11.02.2018, the claimant

was traveling in KSRTC Bus bearing Registration

No.KA-17/F-1242 at Chitradurga Bus Stop to go to

Palavvanahalli and Burujanaroppa Village. The driver

of the said Bus was in a moderate speed on left side

of the road, at about 07.45 P.M., when the Bus

reached near Kunchiganal Village Cross, at that time,

the driver of the Heavy Goods Truck bearing

Registration No.RJ-05/GA-8549 drove the same in a

rash and negligent manner from Chitradurga towards

Hiriyur in a high speed, dashed to the right rear back

side portion of KSRTC Bus. 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 Nos.1

and 2 have appeared through counsel and filed written

statement in which the averments made in the

petition were denied.

It was pleaded by respondent No.1 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 driving of the driver of the

KSRTC Bus. He further contended that the policy was

in force as on the date of the accident. Hence

respondent No.2 is liable to pay the compensation.

It was pleaded by respondent No.2 that the

driver of the offending vehicle did not have valid

driving licence as on the date of the accident. The

alleged accident took place due to rash and negligent

driving of the driver of the KSRTC Bus and not on the

part of the driver of the offending vehicle. 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, 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 also examined doctor and got

exhibited documents namely Ex.P1 to Ex.P.28. On

behalf of the respondents, no witness was examined

but exhibited a document namely Ex.R1. 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.2,70,640/- 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. Smt. Saritha Kulkarni, learned counsel for

the claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was doing labour work in bakery and earning

Rs.15,000/- per month, but the Tribunal has taken the

notional income as merely as Rs.9,000/- per month.

Secondly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 14 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, she sought

for enhancement of compensation.

7. Per contra, Smt. Y. Aruna, 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, the injuries suffered by the claimant

are minor in nature. 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 8% interest is on the

higher side. Hence, she 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 2018, the notional income has to be

taken at Rs.12,500/- p.m.

As per wound certificate, the claimant has

sustained head injury and fracture shaft of right

humerus and comminute fracture of right humerus.

He has examined the doctor as PW-2. Therefore,

taking into consideration the deposition of the doctor,

PW-2 and injuries mentioned in the wound certificate,

the Tribunal has rightly taken the whole body

disability at 12%. The claimant is aged about 60

years at the time of the accident and multiplier

applicable to his age group is '9'. Thus, the claimant

is entitled for compensation of Rs.1,62,000/-

(Rs.12,500*12*9*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 03 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'.

The claimant was treated as inpatient for more

than 14 days in the hospital and thereafter, has

received further treatment. Hence, I am inclined to

enhance the compensation awarded under the head of

'conveyance, nourishment and attendance charges'

from Rs.5,000/- to Rs.10,000/-.

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. Considering the same, I am

inclined to enhance the compensation awarded by the

Tribunal under the head of 'loss of amenities' from

Rs.10,000/- to Rs.30,000/-.

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 40,000 40,000 Medical expenses 72,000 72,000 Food, nourishment, 5,000 10,000 conveyance and attendant charges Loss of income during 27,000 37,500 laid up period Loss of amenities 10,000 30,000 Loss of future income 1,16,640 1,62,000 Total 2,70,640 3,51,500

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.3,51,500/- as against Rs.2,70,640/- 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 interest at 6% per

annum.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 8%

p.a. (enhanced compensation shall carry interest at