Karnataka High Court

Simon Fernandis vs Prabha P Hegde on 16 August, 2023

Bench: H T Prasad

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                                                         NC: 2023:KHC:29016
                                                      MFA No. 1696 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 16TH DAY OF AUGUST, 2023

                                           BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 1696 OF 2018 (MV)
                   BETWEEN:

                   SIMON FERNANDIS
                   AGED ABOUT 44 YEARS
                   S/O LATE GUSTIN FERNANDIS
                   R/AT NEAR MARIYA CONVENT
                   BELVAI VILLAGE AND POST
                   MOODABIDRI HOBLI
                   MANGALURU TALUK-575101
                                                               ...APPELLANT
                   (BY SMT. SWATI G HEGDE, ADVOCATE FOR
                   SRI. PAVANA CHANDRA SHETTY H., ADVOCATE)
                   AND:

                   1.    PRABHA P HEGDE
                         AGED ABOUT 53 YEARS
Digitally signed         W/O PRAKASH HEGDE
by                       R/AT HEGDE COMPOUND
DHANALAKSHMI             BEHIND HANUMAN PETROL PUMP
MURTHY
Location: High
                         NEAR CHATHURMUKHYA BASADHI
Court of                 DANASHALE ROAD, KARKALA KASBA
Karnataka                KARKALA TALUK-575201.

                   2.    THE BRANCH MANAGER
                         UNITED INDIA INSURANCE CO LTD
                         KARKALA BRANCH, SRINIVAS COMPLEX
                         A S ROAD, KARKALA-575201
                                                            ...RESPONDENTS
                   (BY SRI.O.MAHESH., ADVOCATE FOR R2:
                   NOTICE TO R1 IS DISPENSED WITH
                   V/O DATED: 28.11.2022)
                            -2-
                                       NC: 2023:KHC:29016
                                     MFA No. 1696 of 2018




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:17.03.2017
PASSED IN MVC NO.760/2016 ON THE FILE OF SENIOR CIVIL
JUDGE AND AMACT., KARKALA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THIS APPEAL, COMING ON FOR FINAL HEARING, 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 and

decree dated 17.03.2017 passed by the Senior Civil Judge

and AMACT, Karkala, (hereinafter referred to as 'the

Tribunal') in MVC No.760/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 20.01.2016 at 8.00 p.m. the

claimant was proceeding on his two wheeler bearing

registration No.KA-20/X-7325 from Karkala Govt. Hospital

towards Anekere Petrol Pump side. When he reached near

Kotekani Garage, at that time, a Innova car bearing

registration No.KA-20/P-5797 being driven by its driver at

a high speed and in a rash and negligent manner, dashed

NC: 2023:KHC:29016 MFA No. 1696 of 2018

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 No.2

appeared through counsel and 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 driver of the offending

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

NC: 2023:KHC:29016 MFA No. 1696 of 2018

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. The respondent No.1 did not appear before the

Tribunal and hence he was placed ex-parte.

6. 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 PW1

and Dr.K.S.Rao was examined as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P28 and C1 to C4. On

behalf of the respondents, no witness was examined but

got exhibited one document namely Ex.R1. 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

NC: 2023:KHC:29016 MFA No. 1696 of 2018

of Rs.3,35,720/- along with interest at the rate of 8% p.a.

and directed the Insurance Company to deposit the

compensation amount along with interest. Being not

satisfied, claimant filed this appeal.

7. The learned counsel for the claimant has

contended that at the time of the accident the claimant

was working in UAE and earning Rs.85,000/- per month.

He has produced the bank pass-book to show that he was

earning Rs.85,000/- per month. But the Tribunal has

considered the monthly income as Rs.15,000/-, which is

on the lower side.

8. Secondly, she contended that due to the accident

the claimant has suffered grievous injuries. He has

examined the doctor as PW-2, who in his evidence has

deposed that the claimant has suffered 12% disability to

right lower limb. The Tribunal has assessed the whole

body disability at 4%, which is on the lower side.

9. Thirdly, she contended that due to the accident,

the claimant has sustained grievous injuries. He was

NC: 2023:KHC:29016 MFA No. 1696 of 2018

treated as inpatient for a period of 12 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

incidental expenses are on the lower side. Hence, she

sought for enhancement of compensation.

10. On the other hand, the learned counsel

appearing for the Insurance Company has contended that

even though the claimant claims that he was earning

Rs.85,000/- per month by working in UAE, he has not

proved the same. No documents have been produced to

show that he was earning Rs.85,000/- per month. Even in

the pass-book, nowhere it is stated that he was getting

monthly income of Rs.85,000/-.

11. Secondly, he contended that the whole body

disability suffered by the claimant is only 4% and it will

NC: 2023:KHC:29016 MFA No. 1696 of 2018

not affect his day-to-day activities. Under the

circumstances, the compensation awarded by the Tribunal

under the head 'loss of future income' is on the higher

side.

12. It is his further contention that 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 @ 8% p.a. is on

the higher side. Hence, he sought for dismissal of the

appeal.

13. Heard the learned counsel for the parties and

perused the records.

14. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred on

20.01.2016 due to rash and negligent driving of the driver

of the car bearing registration No.KA-20/P-5797 by its

driver.

NC: 2023:KHC:29016 MFA No. 1696 of 2018

15. The claimant claims that he was earning

Rs.85,000/- per month by working in UAE as Electrician,

but he has not proved the same by producing any

documents. Even the bank pass book does not show that

he was getting monthly income of Rs.85,000/-. Therefore,

Tribunal has rightly assessed the notional income as

Rs.15,000/- per month. As per the wound certificate, the

claimant has sustained fracture shaft of right femur.

PW2, the doctor has stated in his evidence that the

claimant has suffered 12% permanent disability over right

lower limb and the Tribunal has rightly assessed the whole

body disability at 4%. Hence, the compensation awarded

by the Tribunal under the head 'loss of future income' is

just and reasonable.

16. Due to the accident, the claimant has suffered

grievous injuries. He was treated as inpatient for more

than 12 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

NC: 2023:KHC:29016 MFA No. 1696 of 2018

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.15,000/- to Rs.30,000/-, 'for conveyance, nourishment

and attendant charges' from Rs.10,000/- to Rs.20,000/-.

Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

17. 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               30,000         50,000

 Medical expenses                1,09,920       1,09,920

 Food, nourishment,                10,000         20,000
 conveyance and
 attendant charges

 Loss of income during             45,000         45,000
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                                            NC: 2023:KHC:29016
                                          MFA No. 1696 of 2018




  laid up period

  Loss of amenities                     15,000       30,000

  Loss of future income               1,00,800     1,00,800

  Future medical expenses               25,000       25,000

                   Total              3,35,720    3,80,720

18. In the result, the appeal is allowed in part. The

judgment of the Claims Tribunal is modified.

19. The claimant is entitled to a total compensation

of Rs.3,80,720/- as against Rs.3,35,720/- awarded by the

Tribunal.

20. 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.

21. The Insurance Company is directed to deposit

the compensation amount along with interest from the

date of filing of the claim petition till the date of

realization, within a period of six weeks from the date of