Karnataka High Court

Irfan Khan vs Naseemullakhan on 9 August, 2023

Bench: H T Prasad

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                                                         NC: 2023:KHC:28142
                                                     MFA No. 10392 of 2018




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 9TH DAY OF AUGUST, 2023

                                          BEFORE
                      THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                 MISCELLANEOUS FIRST APPEAL NO. 10392 OF 2018(MV)
                 BETWEEN:

                 IRFAN KHAN
                 AGED ABOUT 24 YEARS
                 S/O LATE DAWUD KHAN
                 R/AT N HOSAHALLI VILLAGE
                 NANDAGUDI HOBLI
                 HOSAKOTE TALUK
                 BENGALURU RURAL DISTRICT
                                                               ...APPELLANT
                 (BY SMT. SWATHI G HEGDE, ADVOCATE FOR
                 SRI. PAVANA CHANDRA SHETTY H., ADVOCATE)
                 AND:

                 1.    NASEEMULLAKHAN
                       S/O INAYATHULLA KHAN
                       R/AT BYLANARASAPUR VILLAGE & POST
Digitally signed
by                     NANDAGUDI HOBLI
DHANALAKSHMI           HOSAKOTE TALUK
MURTHY                 BANGALORE RURAL DISTRICT-562114.
Location: High
Court of         2.    NATIONAL INSURANCE CO.LTD.,
Karnataka
                       NEAR CANARA BANK
                       DOOM LIGHT CIRCLE
                       KOLAR DISTRICT-563101
                       REP:BY ITS BRANCH MANAGER
                                                            ...RESPONDENTS
                 (BY SRI.K SRIDHARA., ADVOCATE FOR R2:
                 NOTICE TO R1 IS DISPENSED WITH
                 V/O DATED: 12.12.2022)
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                                            NC: 2023:KHC:28142
                                         MFA No. 10392 of 2018




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:20.04.2018
PASSED IN MVC NO.154/2016 ON THE FILE OF THE PRL.
SENIOR CIVIL JUDGE & CJM AT MACT, KOLAR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                          JUDGMENT

1. 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 20.4.2018 passed by MACT, Kolar in MVC

No.154/2016.

2. Facts giving rise to the filing of the appeal briefly

stated are that on 17.4.2016 when the claimant went to

Urus function at Bylanarasapura at 12.30 midnight, near

Hosahalli-Nandigudi road, Hosakote, at that time, a two

wheeler bearing registration No.KA-53-EL-9847 being

ridden by its rider at a high speed and in a rash and

negligent manner, dashed to the claimant. As a result of

the aforesaid accident, the claimant sustained grievous

injuries and was hospitalized.

NC: 2023:KHC:28142 MFA No. 10392 of 2018

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

charges, etc. It was further pleaded that the accident

occurred purely on account of the rash and negligent

riding of the offending vehicle by its rider.

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.P.V.Manohar was examined as PW-2 and got

exhibited documents namely Ex.P1 to Ex.P15. On behalf

of the respondents, neither any witness was examined nor

NC: 2023:KHC:28142 MFA No. 10392 of 2018

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 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.2,28,850/-

along with interest at the rate of 6% 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:

a) Firstly, even though the claimant claims that he was

doing Mechanic work and earning Rs.20,000/- per month,

but the Tribunal has taken the notional income as merely

as Rs.6,000/- p.m.

b) Secondly, the claimant has examined the doctor as

PW-2. The doctor in his evidence has stated that the

claimant has suffered disability of 30% to particular limb

NC: 2023:KHC:28142 MFA No. 10392 of 2018

and 10% to whole body. But the Tribunal has taken the

whole body disability at 10%, which is on the lower side.

c) Lastly, 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

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:

a) Firstly, even though the claimant claims that he was

earning Rs.20,000/- per month, he has not produced any

documents to establish his income. In the absence of proof

of income, the Tribunal has rightly assessed the income of

the claimant notionally.

NC: 2023:KHC:28142 MFA No. 10392 of 2018

b) Secondly, the Tribunal considering the injuries

sustained by the claimant and evidence of the doctor, has

rightly assessed the whole body disability at 10%.

c) Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the compensation awarded by the Tribunal under

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

other incidental expenses are just and reasonable and it

does not call for interference. 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 on 17.4.2016

due to rash and negligent driving of the offending vehicle

by its driver.

NC: 2023:KHC:28142 MFA No. 10392 of 2018

10. The claimant claims that he was earning Rs.20,000/-

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 2016, the notional

income has to be taken at Rs.9,500/- p.m.

11. As per wound certificate, the claimant has sustained

compound comminuted fracture of right tibia and fracture

of right fibula and abrasion over right leg measuring

1.5cmx2cm and CLW over right great toe. The doctor in

his evidence has stated that the claimant has suffered

disability of 30% to particular limb and 10% to whole

body. Therefore, taking into consideration the deposition

of the doctor and injuries mentioned in the wound

certificate, the Tribunal has rightly taken the whole body

disability at 10%. The claimant is aged about 22 years at

the time of the accident and multiplier applicable to his

age group is '18'. Thus, the claimant is entitled for

NC: 2023:KHC:28142 MFA No. 10392 of 2018

compensation of Rs.205,200/- (Rs.9,500*12*18*10%)

on account of 'loss of future income'.

12. 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.28,500/- (Rs.9,500*3 months) under

the head 'loss of income during laid up period'.

13. The claimant was treated as inpatient for more than

7 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

'pain and sufferings' from Rs.20,000/- to Rs.40,000/-

and award a sum of Rs.25,000/- under the head of 'loss

of amenities'.

NC: 2023:KHC:28142 MFA No. 10392 of 2018

14. Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

15. Thus, the claimant is entitled to the following

compensation:

                              As awarded       As awarded
                                by the           by this
  Compensation under           Tribunal           Court
    different Heads
                                   (Rs.)           (Rs.)

 Pain and sufferings                 20,000          40,000

 Medical expenses                    72,250          72,250

 Food, nourishment,                   7,000           7,000
 conveyance and
 attendant charges

 Loss of income during                     0         28,500
 laid up period

 Loss of amenities                         0         25,000

 Loss of future income              129,600         202,500

                 Total             228,850         375,250

16. In the result, I pass the following order: