Karnataka High Court

Sri Puttaraju vs Hdfc Ergo General Insurance ... on 10 October, 2022

Bench: H T Prasad

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF OCTOBER 2022

                         BEFORE

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

                MFA No.4112 OF 2020(MV)

BETWEEN:

Sri. Puttaraju,
S/o Late. Kariyappa,
Aged about 34 years,
Residing at
Guruvaiahnadoddi,
Kodihalli Post,
Maralavadi Hobli,
Kanakapura Taluk,
Ramanagara District.                      ... Appellant

(By Sri.Girimallaiah, Advocate)

AND:

1.     HDFC ERGO General
       Insurance Company Ltd.,
       No.25/1, 2nd Floor,
       Shankaranarayan Building,
       M.G.Road,
       Bengaluru-560 001.

2.     Sri. H.M. Nagaraj,
       S/o M.H. Manche Gowda,
       Major,
       Resident of Raghavendra Colony,
       Mysore Road,
       Kanakapura Taluk,
                              2




     Ramanagara District.                 ... Respondents

(By Sri.Lingaraj H.S., Advocate for R1:
Notice to R2 is D/W v/o dated: 10.10.2022)

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:18.12.2019 passed
in MVC No.5517/2018 on the file of the Member, MACT,
C/C XIII Additional Judge, Court of Small Causes and
MACT, Bengaluru (SCCH-15), partly allowing the claim
petition for compensation and seeking enhancement of
compensation.

      This MFA, coming on for orders, 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 18.12.2019 passed

by Motor Vehicles Accidents Claims Tribunal,

Bangalore City in MVC No.5517/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 15.07.2018 at about 10.00

a.m., the claimant was proceeding on motorcycle

bearing registration No.KA-42/Q-6582 near Attihalli

Village, Sathanur Hobli, Kanakapura Taluk,

Ramanagar District. At that time, another motorcycle

bearing registration No.KA-05/EH-2506 being driven

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 driving of the offending vehicle by

its driver.

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

and 2 appeared through counsel and respondent No.1

filed written statement 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 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. It was

further pleaded that the rider of the offending vehicle

did not have valid driving licence as on the date of the

accident. It was further pleaded that the liability is

subject to terms and conditions of the policy. It was

further pleaded that the quantum of compensation

claimed by the claimant is exorbitant. Hence, he

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.Vijay A.Kulkarni was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P17. 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 riding of

the offending vehicle by its rider, as a result of which,

the claimant sustained injuries. The Tribunal further

held that the claimant is entitled to a compensation of

Rs.5,02,000/- along with interest @ 7% p.a. and

directed the Insurance Company to deposit the

compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. Sri Girimallaiah, 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.25,000/- per month, but the Tribunal has

taken the notional income as only Rs.10,000/- per

month.

Secondly, due to the accident the claimant has

suffered grievous injuries. He has examined the

doctor as PW-2, who in his evidence has stated that

the claimant has suffered disability of 56.4% to right

lower limb and 16.92% to whole body. But the

Tribunal has erred in taking the whole body disability

at only 12%.

Thirdly, the claimant was treated as inpatient for

a period of four 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 he has to suffer the disability and

unhappiness throughout his life. Considering the

same, the compensation granted by the Tribunal

under the heads of 'pain and sufferings', 'loss of

amenities' and other heads are on the lower side.

Fourthly, the claimant has undergone three

surgeries and the doctor - PW2 has deposed that the

claimant requires about Rs.60,000/- to Rs.70,000/-

for removal of implants and future surgery. The

Tribunal has awarded 'future medical expenses' of

only Rs.20,000/-. Hence, he sought for enhancement

of compensation.

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.25,000/- per month, he has produced

only RTC extract 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

56.4% to right lower limb and 16.92% to whole body.

The Tribunal considering the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 12%.

Thirdly, the injuries suffered by the claimant are

minor in nature and he was inpatient for only four

days. Considering the evidence of the doctor and

injuries sustained by the claimant, the overall

compensation awarded by the Tribunal is just and

reasonable.

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 7% 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 judgment and award.

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.25,000/- 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.

Due to the accident, the claimant has sustained

fracture of right patella, fracture of right upper 1/3rd

tibia and fracture of shaft of left clavicle. PW-2, the

doctor has stated in his evidence that the claimant has

suffered disability of 56.4% to right lower limb and

16.92% to whole body. Therefore, taking into

consideration the deposition of the doctor, PW-2 and

injuries mentioned in the wound certificate, the whole

body disability has to be assessed at 16.92%. The

claimant was aged about 35 years at the time of the

accident and multiplier applicable to his age group is

'16'. Thus, the claimant is entitled for compensation

of Rs.4,06,080/- (Rs.12,500*12*16*16.92%) on

account of 'loss of future income'.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He was

treated as inpatient for more than four days in the

hospital and thereafter, has received further

treatment. He has suffered lot of pain during

treatment and he has to suffer with the disability and

unhappiness throughout his life. Considering the

same, I am inclined to enhance the compensation

awarded by the Tribunal under the head of 'pain and

sufferings' from Rs.30,000/- to Rs.45,000/-, 'loss of

amenities' from Rs.30,000/- to Rs.40,000/-, 'loss of

income during laid-up period' for a period of three

months, i.e., Rs.37,500/-.

The claimant has examined the doctor PW-2,

who in his testimony stated that the claimant requires

about Rs.60,000/- to Rs.70,000/- towards 'future

medical expenses'. Hence, I am inclined to enhance

the compensation awarded by the Tribunal under the

head of 'future medical expenses' from Rs.20,000/- 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 30,000 45,000 Medical expenses 2,11,666 2,11,666 Food, nourishment, 6,000 6,000 conveyance and attendant charges Loss of income during 30,000 37,500 laid up period Loss of amenities 30,000 40,000 Loss of future income 2,30,400 4.06,080 Future medical expenses 20,000 30,000 Total 5,58,066 7,76,246

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.7,76,246/- as against Rs.5,58,066/- 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 @ 7%

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

compensation) from the date of filing of the claim