Karnataka High Court
Austin Subhaschandra Masceranas vs Arun Steevan on 13 October, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.8877 OF 2019(MV)
BETWEEN
AUSTIN SUBHASCHANDRA MASCERANAS
AGED ABOUT 56 YEARS
S/O. JOHN MASCERANAS
R/AT ARBIDA GUDDE, HUKRATTE POST
MANJALTHAR NALLUR VILLAGE
KARKALA TLUK 574104
UDUPI DISTRICT 576101.
...APPELLANT
(BY MISS NAZEEFA M MULLA, ADV. FOR
SRI. PAVANA CHANDRA SHETTY H., ADV.)
AND
1. ARUN STEEVAN
AGED ABOUT 44 YEARS
S/O. SILVESTER COSTA
R/AT HARIHITHLU HOUSE
RENJALA VILLAGE AND POST
KARKALA TALUK 574104.
2. THE BRANCH MANAGER
UNITED INDIA INSURANCE CO LTD
KARKALA BRANCH
PB NO. 29,2ND FLOOR
2
SUSHILA SANJIV ENCLAVE
NEAR KARNATAKA BANK
MARKET ROAD, KARKALA 574104.
...RESPONDENTS
(BY SRI.KRISHNA KISHORE S., ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 13.10.2022.)
THIS MFA FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED.
28.03.2019, PASSED IN MVC NO.644/2018, ON THE FILE
OF THE SENIOR CIVIL JUDGE AND AMACT, KARKALA,
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 dated 28.3.2019 passed by MACT,
Karkala in MVC 644/2018.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 18.9.2017 when the
claimant was proceeding on motorcycle bearing
registration No.KA-20-X-9783 as a pillion rider near
Kodange School of Mala Village, at that time, the rider
of the said motorcycle rode the same at a high speed
and in a rash and negligent manner and dashed to the
motorcycle bearing No.KA-20-EM-9160. 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.
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 and Dr.Monappa Naik was
examined as PW-2 and got exhibited documents
namely Ex.P1 to Ex.P19. On behalf of the
respondents, no witness was examined but produced
one document and got marked as Ex.R-1. Further,
Exs.C-1 to C-4 were produced and marked through
Court. 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.306,500/- 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, the present appeal has been filed.
6. The learned counsel for the claimant has
contended that claimant was aged about 25 years at
the time of the accident and earning Rs.30,000/- p.m.
by doing husbandry work. As per wound certificate, he
has sustained swelling and deformity over distal end
of right forearm associated with fracture of right hand
distal radius and painful movements of writ, laceration
over left side of head, right closed distal 1/3rd shaft
radius fracture+left acromio clavicular joint
dislocation. PW-2, the doctor has stated in his
evidence that the claimant has suffered disability of
30% to particular limb. Due to the accident, the
claimant has sustained grievous injuries. He was
treated as inpatient for a period of 7 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 nature of
injuries, the compensation awarded by the Tribunal
under the heads of 'pain and sufferings', 'loss of
amenities' and other incidental expenses is on the
lower side. Hence, he sought for allowing the appeal.
7. On the other hand, the learned counsel for
the Insurance Company has contended that the
injuries sustained by the claimant are minor in nature.
He has not produced any documents to establish his
income. The disability stated by the doctor at 30% to
particular limb will not affect his day to day activities.
Considering the age and avocation of the claimant, the
Tribunal has granted just and reasonable
compensation and it does not call for interference.
However, in view of the Division Bench decision of this
Court in the case of Ms.Joyeeta Bose and others -
v- 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. on the compensation amount 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 of the Tribunal.
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.
As per wound certificate, the claimant has
sustained swelling and deformity over distal end of
right forearm associated with fracture of right hand
distal radius and painful movements of writ, laceration
over left side of head, right closed distal 1/3rd shaft
radius fracture+left acromio clavicular joint
dislocation. PW-2, the doctor has stated in his
evidence that the claimant has suffered disability of
30% to particular limb. The Tribunal has rightly
assessed the whole body disability at 9%. Due to the
accident, the claimant has sustained grievous injuries.
He was treated as inpatient for a period of 7 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. Therefore,
considering the age and avocation of the claimant and
considering the injuries sustained by the claimant, I
am inclined to award compensation of Rs.80,000/- in
addition to compensation of Rs.306,500/- awarded by
the Tribunal.
10. 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.386,500/-.
The Insurance Company is directed to deposit
the compensation amount along with interest @ 8%
p.a. from the date of filing of the claim petition till the
date of realization, within a period of six weeks from
the date of receipt of copy of this judgment.
The enhanced compensation of Rs.80,000/- shall
not carry any interest.
Sd/-
JUDGE
DM
