Sri. Arul C @ Arul Chinnaswamy vs Sri. Manjunath Gowda S
2022 Latest Caselaw 12598 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 27TH DAY OF OCTOBER 2022

                     BEFORE

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

          MFA No.2935 OF 2019(MV)


BETWEEN

SRI. ARUL C @ ARUL CHINNASWAMY
S/O CHINNASWAMY
AGED ABOUT 27 YEARS
R/AT: 7TH CROSS
GURURAJ LAYOUT
DODDAKUNDI
KARTHIK NAGARA
MARATHALLI, BANGALORE 560
PERMANENT ADDRESS:
NO.3/237, PANGATHA
THATHANKOTTAI
JAGADAP POST, JAGADAP
KRISHNAGIRI TLAUK
KRISHNAGIRI, TAMIL NADU.

                                    ...APPELLANT

(BY SRI.K P BHUVAN, ADV.)

AND

1.    SRI. MANJUNATH GOWDA S
      S/O SUBBANNA
                         2




     R/AT BEERASANDRA VILLAGE
     A.D. HALLI POST
     DEVANAHALLI TALUK
     BENGALURU RURAL DISTRICT-562 110.

2.   UNITED INDIA INSURANCE CO. LTD.,
     REGIONAL OFFICE: 5TH FLOOR
     KRUSHI BHAVAN,
     NRUPATHUNGA ROAD
     HUDSON CIRCLE
     BANGALORE 560 027.

                                ...RESPONDENTS

(BY SRI. L. SREEKANTA RAO, ADV. FOR R2:
NOTICE TO R1 IS SERVED BUT UNREPRESENTED)



     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV   ACT   AGAINST   THE JUDGMENT   AND AWARD
DATED:16.10.2018 PASSED IN MVC NO.4012/2017
ON THE FILE OF THE XXI ACMM & XXIII ASCJ, MACT,
BENGALURU, [SCCH-25], 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:
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                      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 16.10.2018 passed by MACT,

Bengaluru in MVC 4012/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 10.6.2017, when the

claimant along with another were proceeding on

motorcycle bearing registration No.TN-59-AU-4398 on

Kuduregere Main Road, near Telecom layout,

Bangalore, at that time, car bearing registration

No.KA-43-M-7184 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 respondents

appeared through counsel and only respondent No.2

filed written statement in which the averments made

in the petition were denied.

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.S.A.Somashekara was

examined as PW-3 and got exhibited documents

namely Ex.P1 to Ex.P15. On behalf of the

respondents, neither any witness was examined nor

any document was produced. 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.459,200/- 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

raised the following contentions:

Firstly, even though the claimant claims that he

was working as Commissioner Engineer and earning

Rs.35,000/- per month, but the Tribunal has taken the

notional income as merely as Rs.8,000/- per month.

Secondly, the claimant has examined the doctor

as PW-3. The doctor in his evidence has stated that

the claimant has suffered disability of 42% to

particular limb and 21% to whole body. But the

Tribunal has taken the whole body disability at 12%,

which is on the lower side.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 10 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 awarded by the Tribunal under the

heads of 'loss of amenities', 'pain and sufferings' and

other incidental expenses are on the lower side.

Hence, he sought for allowing the appeal.

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.35,000/- 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 Tribunal considering the injuries

sustained by the claimant and evidence of the doctor,

has rightly assessed the whole body disability at 12%.

Thirdly, 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 and it does not call for

interference.

Fourthly, 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.

The claimant claims that he was earning

Rs.35,000/- per month. He has not produced any

documents to prove his income. Therefore, in the

absence of proof of income, notional income has to be

assessed. As per the guidelines issued by the

Karnataka State Legal Services Authority, for the

accident 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 fracture of both bones of left leg, right foot

1st toe nail avulsion, contusion hip with undisplaced

fracture of pubic rami and right sacron ala. The doctor

in his evidence has stated that the claimant has

suffered disability of 42% to particular limb and 21%

to whole body. Therefore, taking into consideration

the deposition of the doctor and injuries mentioned in

the wound certificate, I am of the opinion that the

whole body disability can be taken at 14%. The

claimant is aged about 26 years at the time of the

accident and multiplier applicable to his age group is

'17'. Thus, the claimant is entitled for compensation of

Rs.314,160/- (Rs.11,000*12*17*14%) 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 3 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'.

The claimant was treated as inpatient for more

than 10 days in the hospital and thereafter, has

received further treatment. 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.20,000/- to Rs.35,000/-.

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 50,000 50,000 Medical expenses 137,346 137,346 Food, nourishment, 20,000 20,000 conveyance and attendant charges Loss of income during 16,000 33,000 laid up period Loss of amenities 20,000 35,000 Loss of future income 195,840 314,160 Future medical expenses 20,000 20,000 Total 459,186 609,506 Rounded off 459,200 609,500

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.609,500/-.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 8%

p.a. (enhanced amount shall carry interest at 6%

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.

Sd/-

JUDGE

DM