Karnataka High Court

Thopegowda vs Hobyanayaka on 16 August, 2023

Bench: H T Prasad

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                                                          NC: 2023:KHC:28907
                                                     MFA No. 9880 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. 9880 OF 2018 (MV)
                 BETWEEN:

                 THOPEGOWDA
                 S/O NANJUNDAPPA
                 AGED ABOUT 36 YEARS
                 R/O DASARIGHATTA VILLAGE
                 THIPTUR TALUK
                 TUMAKURU DISTRICT
                 NOW R/AT C/O C.K.KUMARA
                 OPPOSITE TO GAMATHI KALYANA MANTAP
                 DEVAMMA EXTENSION
                 CHANNAPATNA, HASSAN-573201
                                                                ...APPELLANT
                 (BY SRI. GIRISH B BALADARE., ADVOCATE)

                 AND:

Digitally signed 1.    HOBYANAYAKA
by
DHANALAKSHMI           S/O LALAIAHNAYAKA
MURTHY                 SEVALAAL EXTENSION
Location: High         HAMPAPATTANA
Court of               H.B.HALLY, RAYARALU THANDYA
Karnataka              BELLARY DISTRICT-583212.

                 2.    THE MANAGER
                       NATIONAL INSURANCE CO LTD
                       SRI MANJUNATHA COMPLEX
                       OLD BUS STAND ROAD
                       HASSAN-573201.

                 3.    SMT PUSHPA
                       W/O SRINIVASA
                            -2-
                                       NC: 2023:KHC:28907
                                    MFA No. 9880 of 2018




     MAJOR
     R/O GUNDASHETTYHALLI VILLAGE
     KASABA HOBLI
     CHANNARAYAPATNA TALUK
     HASSAN DISTRICT-573201.

4.   THE MANAGER
     NATIONAL INSURANCE CO LTD
     SRI MANJUNATHA COMPLEX
     OLD BUS STAND ROAD
     HASSAN -573201
                                          ...RESPONDENTS
(BY SMT. GEETHA RAJ., ADVOCATE FOR R2 & R4:
    NOTICE TO R1 & R3 SERVED & UNREPRESENTED)


     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 11/07/2018,
PASSED IN MVC NO.383/2017, ON THE FILE OF THE III
ADDITIONAL DISTRICT JUDGE & MACT, HASSAN, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION AND DISMISSING
THE PETITION AGAINST THE RESPONDENT NOS.2 TO 4.

    THIS APPEAL, COMING ON FOR ORDERS, 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 11.07.2018 passed by MACT, Hassan in MVC

No.383/2017.

NC: 2023:KHC:28907 MFA No. 9880 of 2018

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

stated are that on 08.10.2016 at about 07.45 p.m., near

Kantharaju Devarahalli Cross on Shravanabelagola-

Channarayapatna road, when the claimant was returning

from Shravanabelagola in the Passion Bike that belonged

to one Srinivasa bearing Registration NoKA-13-EH-5333 as

a pillion rider after completing his tiles work, at the same

time, the driver of the lorry bearing Registration No.KA-

01-D-696 drove the same in a rash and negligent manner

and dashed against the said bike. As a result of the same,

the bike got struck to the left side wheels of the lorry and

when the driver of the said lorry moved along with the

said bike by dragging the said bike, due to which, the bike

was damaged. Due to impact, 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

charges, etc. It was further pleaded that the accident

NC: 2023:KHC:28907 MFA No. 9880 of 2018

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.2 to 4

appeared through counsel and filed written statement in

which the averments made in the petition were denied. It

was further pleaded that the quantum of compensation

claimed by the claimant is exorbitant. Hence, they sought

for dismissal of the petition.

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.Vinod Kumar was examined as PW-2 and got

exhibited documents namely Ex.P1 to Ex.P16. On behalf

of the respondents, three witnesses were examined as

RW-1 to RW-3 and got exhibited documents namely Ex.R1

NC: 2023:KHC:28907 MFA No. 9880 of 2018

to Ex.R8. 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.5,75,000/- along with

interest at the rate of 6% p.a. and directed the owner 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 tiles fixing work and earning Rs.25,000/- per month,

but the Tribunal has taken the notional income as merely

as Rs.15,000/- p.m.

b) Secondly, the claimant has examined the doctor as

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

disability to whole spine to an extent of 20% and hence he

has assessed total functional disability is assessed at 40%.

NC: 2023:KHC:28907 MFA No. 9880 of 2018

Due to spinal injury, he is unable to do tiles fixing work.

The Tribunal has erred in assessing the whole body

disability 13%, 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 17 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 'pain and sufferings' and other

incidental expenses are on the lower side. The Tribunal

has failed to grant any compensation under the head of

'loss of amenities'. 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.25,000/- per month, he has not produced any

NC: 2023:KHC:28907 MFA No. 9880 of 2018

documents to establish his income. In the absence of proof

of income, the monthly income of Rs.15,000/- assessed by

the Tribunal is on the higher side.

b) Secondly, the doctor has assessed the disability to

spinal at 20% but he failed to assess the whole body

disability and there is no evidence to show that there is

functional disability. Therefore, the Tribunal considering

the injuries sustained by the claimant and evidence of the

doctor, has rightly assessed the whole body disability at

13%.

c) Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the overall compensation awarded by the

Tribunal 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.

NC: 2023:KHC:28907 MFA No. 9880 of 2018

9. It is not in dispute that the claimant has sustained

injuries in the road traffic accident occurred on 08.10.2016

due to rash and negligent driving of the offending vehicle

by its driver.

10. The claimant claims that he was earning Rs.25,000/-

per month. He has not produced any documents to prove

his income. Therefore, the Tribunal after considering the

age and avocation of the claimant has rightly assessed the

monthly income of the claimant at Rs.15,000/- p.m.

11. As per wound certificate, the claimant has sustained

laceration injury in left groin measuring 15 cm X 5 cm X 2

cm degloving injury to left scrotum, blunt injury to lumbar

spine with tenderness and tenderness over abdomen. The

doctor in his evidence has stated that the claimant has

sustained functional disability to entire spine to an extent

of 15%, stability component to an extent of 5% and total

disability for the whole spine to an extent of 20%.

Therefore, taking into consideration the deposition of the

NC: 2023:KHC:28907 MFA No. 9880 of 2018

doctor and injuries mentioned in the wound certificate, I

am of the opinion that the whole body disability is

considered as 15%. The Tribunal has rightly applied the

multiplier as '15'. Thus, the claimant is entitled for

compensation of Rs.4,05,000/- (Rs.15,000*12*15*15%)

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.45,000/- (Rs.15,000*3 months)

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

13. 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 grant the

compensation under the head of 'loss of amenities' of

Rs.40,000/-.

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NC: 2023:KHC:28907 MFA No. 9880 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                    50,000         50,000

 Medical expenses                     1,31,433       1,31,433

 Miscellaneous expenses                 12,567         12,567

 Loss of income during                  30,000         45,000
 laid up period

 Loss of amenities                            0        40,000

 Loss of future income                3,51,000       4,05,000

                 Total                5,75,000      6,84,000

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