Karnataka High Court

L.Basavaraj vs Mohammed Rareeq 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.2714 OF 2020(MV)

BETWEEN:

L.Basavaraj,
S/o Lakshman,
Aged about 57 years,
Security work in Anjaneya Cotton Mill,
R/o 10, Chikkanahally,
Hosa Badavane,
Davanagere.
Since appellant attacked by paralysis,
He is represented by
His son Ranjitha S/o L. Basavaraj,
Aged about 23 years.                      ... Appellant

(By Sri.R.Shashidhara., Advocate)

AND:

1.     Mohammed Rafeeq,
       S/o Mohaboob Sab,
       Major,
       R/o Near ESI Hospital,
       Opposite to Government School,
       Beedi Layout,
       Davanagere-577001.

2.     Mohammed Rafeeq Khan
       S/o K.R. Mohaboob Sab,
       Major,
       R/o No.158, ESI Hospital Road,
                              2



     Beedi Layout,
     Davanagere-577001.

3.   The Manager,
     HDFC ERGO General Insurance Co. Ltd.,
     #25/1, 2nd Floor,
     Shankaranarayana Building,
     Building No.2, M.G. Road,
     Bangalore-560 001.              ... Respondents

(By Sri.B.Pradeep, Advocate for R3:
Notice to R1 & R2 is dispensed with
V/O dated: 10.10.2022)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:15.02.2020 passed
in MVC No.560/2019 on the file of the Principal Senior Civil
Judge and Member, MACT-IV, Davanagere, 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 15.02.2020 passed

by the Principal Senior Civil Judge and MACT-IV at

Davanagere in MVC No.560/2019.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 18.05.2019 at about 9.30

a.m., the claimant was proceeding on his bike on Bada

Cross. At that time, a Maruthi Swift car bearing

registration No.KA-17/N-7807 being driven by its

driver 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

to 3 appeared through counsel and filed 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 that the petition itself is false and

frivolous in the eye of law. 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, 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.Prabhu Basavanagowda

was examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P11. 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.1,00,200/- along with interest @

8% p.a. and directed the Insurance Company to

deposit the compensation amount along with interest.

Being aggrieved, this appeal has been filed.

6. Sri R.Shashidhara, the learned counsel for

the claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was doing Security Guard work and earning

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

notional income as only 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 20 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.

Hence, he sought for enhancement of compensation.

7. On the other hand, 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.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 and he was inpatient for only 5

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.

Thirdly, 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 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.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 2019, the notional income has to be

taken as Rs.14,000/- p.m.

Considering the evidence of the doctor and

considering the injuries suffered by the claimant, the

Tribunal has rightly assessed the whole body disability

as 5%. The claimant was aged about 56 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.75,600/- (Rs.14,000*12*9*5%)

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 5 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.50,000/-, 'loss of

amenities' from Rs.10,000/- to Rs.35,000/-, 'food,

conveyance, nourishment and attendant charges' has

to be granted at 8,000/- and 'loss of income during

laid-up period' for a period of two months, i.e.,

Rs.28,000/-.

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 50,000 Medical expenses 2,600 2,600 Food, nourishment, 0 8,000 conveyance and attendant charges Loss of income during 9,000 28,000 laid up period Loss of amenities 10,000 35,000 Loss of future income 48,600 75,600 Total 1,00,200 1,99,200

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.1,99,200/- as against Rs.1,00,200/- 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