Karnataka High Court
Sri.Irfan Pasha vs Sri.Nagaraju K.S on 13 December, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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MFA No. 2953 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 2953/2022 (MV-I)
BETWEEN:
SRI IRFAN PASHA
S/O NAYAZ PASHA,
NOW AGED ABOUT 26 YEARS,
R/AT 1430, RAGHAVENDRA COLONY,
BEHIND MASJID,
RAMANAGARA 562 159
...APPELLANT
(BY SRI TEJAS N., ADVOCATE)
AND:
1. SRI.NAGARAJU K.S.
S/O SHIVARAJU,
Digitally signed AGED MAJOR,
by R/AT NO.3088, 1st FLOOR,
DHANALAKSHMI
MURTHY VESHVESHWARAIAH BADAVANE,
Location: High 6th BLOCK, BENGALURU
Court of
Karnataka
(OWNER OF VEHICLE BEARING
REG NO.KA 02-JS-1723)
2. THE MANAGER
LIBERTY GENERAL
INSURANCE LTD.,
NO.1 ALYSSA, Ist FLOOR,
REAR PORTION, OLD NO.28,
NEW NO.23, RICHMOND ROAD,
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MFA No. 2953 of 2022
RICHMOND TOWN,
BENGALURU 560 025
(POLICY NO.201250020117800373300000
VALID FROM 06.07.2017 TO 05.07.2020)
...RESPONDENTS
(BY SRI A.N.KRISHNA SWAMY, ADVOCATE FOR R2)
***
MFA FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DT.31.01.2022 PASSED IN MVC
NO.6024/2019 ON THE FILE OF THE CHIEF JUDGE, COURT OF
SMALL CAUSES, MEMBER, PRL. MACT, BENGALURU, (SCCH-1),
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION, ETC.,
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 award dated
31.01.2022 passed by Chief Judge, Court of Small Causes,
Member, Prl. MACT, Bengaluru (SCCH-1) in MVC No.
6024/2019.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 11.08.2019 at about 8.20am, when the
claimant was standing with his two wheeler bearing
Registration No. KA-42 Y-9980 on the side of Service Road near
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Sunder Sweets, Ijoor, Ramanagara Town, at that time Royal
Enfield Bullet bearing Registration No. KA-02 JS-1723 came
from Mysore side in a high speed and in a rash and negligent
manner, dashed to the claimant. As a result of the aforesaid
accident, the claimant fell down and sustained grievous injuries
all over the body 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 occurred purely
on account of the rash and negligent driving of the offending
vehicle by its rider.
4. On service of notice to respondents, the respondent
No.1 did not appear before the Tribunal inspite of service of
notice and was placed ex-parte. The respondent No.2
appeared through counsel and filed written statement in which
the averments made in the petition were denied. It was
pleaded that the petition itself is false and frivolous in the eye
of law. It was further pleaded that Royal Enfield Bullet was
insured with them as on the date of accident, but the liability is
subject to terms and conditions of the policy and the rider has
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no driving licence to ride the same. The age, avocation and
income of the claimant and the medical expenses are denied.
It was further pleaded that the quantum of compensation
claimed by the claimant is exorbitant. Hence, he sought for
dismissal of the petition.
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
examined two other witnesses as PW2 & 3 and got exhibited
documents, namely, Ex.P1 to Ex.P14. On behalf of the
respondents, no oral or documentary evidence is adduced.
6. 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. 3,86,780/- along with interest at the rate of 6% p.a. and
held respondent Nos.1 & 2 are jointly and severally liable to
pay the compensation, however, directed the respondent No.2
- Insurance company to deposit the compensation amount
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along with interest. Being aggrieved, the present appeal has
been filed.
7. Sri Tejas.N., learned counsel for the claimant has
raised the following contentions:
a) Firstly, due to the accident claimant has
suffered grievous injuries. Doctor has been
examined as PW2. The doctor in his evidence
deposed that claimant has suffered physical
disability to lower limb at 45% and to the whole
body at 15%. The Tribunal has assessed the whole
body disability at 8%, which is on the lower side.;
b) Secondly, at the time of accident claimant was
earning Rs.1,000/- per day. The Tribunal has taken
notional income of the claimant at Rs.13,000/- per
month, which is on the lower side.; &
c) Lastly, due to the accident, claimant has
suffered grievous injuries and he was inpatient for 7
days. He suffered lot of pain and unhappiness
during treatment. Even after discharge from the
hospital, he was not in a position to discharge his
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regular work. 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.
8. On the other hand, Sri A.N. Krishna Swamy,
learned counsel for the Insurance Company has raised following
counter contentions:
a) Firstly, even though the Doctor has deposed
that the claimant has suffered 15% whole body
disability, considering the evidence of the doctor
and the medical records and the injury suffered by
the claimant, the Tribunal has rightly assessed the
whole body disability at 8%.
b) Secondly, even though the claimant has
claimed that he was earning Rs.1,000/- per day, he
has not produced any document to establish the
same. Therefore, the Tribunal has rightly assessed
the notional income of the claimant at Rs.13,000/-
per month.
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c) Lastly, considering the injuries sustained by
the claimant and considering the age and avocation
of the claimant and also considering the evidence
of the doctor and medical records 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.
9. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal.
10. It is not in dispute that the claimant has sustained
injuries in the road traffic accident occurred on 11.08.2019 due
to rash and negligent riding of the offending vehicle by its rider.
The doctor has been examined as PW2. In his evidence he
deposed that the claimant has suffered disability to lower limb
at 45% and whole body disability at 15%. Considering the
evidence of the doctor and injuries suffered by the claimant and
also considering the medical records, I am of the opinion that
the whole body disability has to be assessed at 15%.
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11. Even though claimant has claimed that he was
earning Rs.1,000/- per day, he has not produced any
documents to establish the same. 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 2019, the
notional income has to be taken at Rs.14,000/- p.m.
Accordingly, the income of the claimant is assessed at
Rs.14,000/- per month.
12. 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.4,28,400/- (Rs.14,000/- X 12 X 17 X 15%) on account of
'loss of future income'.
13. Due to the accident the claimant has suffered
grievous injuries and was inpatient for a period of 7 days and
must have been under rest and treatment for a period of two
months. Therefore, the claimant is entitled for compensation of
Rs.28,000/- (Rs.14,000/- X 2 months) under the head 'loss of
income during laid up period'.
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14. 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 award a sum of Rs.30,000/- under
the head of 'loss of amenities' and enhance the compensation
awarded by the Tribunal from Rs.6,000/- to Rs.10,000/-
towards 'food, nourishment and attendant charges'.
15. Considering the nature of injuries, the
compensation awarded by the Tribunal under other heads are
just and reasonable.
16. Thus, the claimant is entitled to the following
compensation:
As awarded As awarded
by the by this Court
Compensation under
Tribunal
different Heads (Rs.)
(Rs.)
Pain and sufferings 40,000/- 40,000/-
Medical expenses 72,620/- 72,620/-
Food, nourishment and 6,000/- 10,000/-
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attendant charges
Loss of income during laid 26,000/- 28.000/-
up period
Loss of amenities - 30,000/-
Loss of future income due 2.12.160/- 4,28,400/-
to permanent disability
Future medical expenses 25,000/- 25,000/-
Transportation charges 5,000/- 5,000/-
Total 3,86,780/- 6,39,020/-
17. In the result, the following order is passed:
ORDER
a) The appeal is allowed in part.
b) The judgment of the Claims Tribunal is modified.
c) The claimant is entitled to a total compensation of
Rs.6,39,020/- along with interest at 6% per
annum as rightly awarded by the Tribunal.;
d) The Insurance Company is directed to deposit the
compensation amount of Rs.6,39,020/- along with
interest @ 6% p.a. from the date of filing of the
claim petition till the date of realization, excluding
interest for future medical expenses, within a period
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of six weeks from the date of receipt of copy of this
judgment.
Sd/-
JUDGE
VK
