Karnataka High Court

Anil Kumar.M vs Venkatesh G on 13 December, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                        NC: 2023:KHC:45310
                                                     MFA No. 4170 of 2021




                        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. 4170 OF 2021 (MV)
                   BETWEEN:

                   ANIL KUMAR.M
                   S/O LATE MALLESH
                   AGE ABOUT 22 YEARS
                   R/AT KIRTHANALLI
                   DASANAPURA HOBLI
                   BANGALORE NORTH TALUK
                   BANGALORE DISTRICT-562130.
                                                              ...APPELLANT
                   (BY SRI. RANGEGOWDA N R.,ADVOCATE)

                   AND:

                   1.    VENKATESH G
                         DEAD BY LRS
Digitally signed         SRI GALAPPA
by                       S/O HANUMAIAH
DHANALAKSHMI
MURTHY                   NOW AGED 93 YEARS
Location: High           R/O GIDADAPALAYA
Court of                 CHANNENAHALLI DHAKALE
Karnataka
                         THAVAREKERE HOBLI
                         BENGALURU SOUTH TALUK
                         BANGALORE DISTRICT.

                   2.    THE MANAGER
                         ICICI LAMBORD MOTOR
                         INSURANCE COMPANY LTD
                         NO 121, 9TH FLOOR
                         THE ESTATE BUILDING
                         DIKENSON ROAD
                         BANGALORE 560001
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                                       NC: 2023:KHC:45310
                                    MFA No. 4170 of 2021




3.   SRI M P JAGADISH
     S/O PUTTARAJU
     AGED MAJOR
     R/AT NO 24TH MAIN
     SRINVIASANAGAR
     NANDINI LAYOUT
     BANGALORE 560096.

4.   THE MANAGER
     ROYAL SUNDARAM GENERAL
     INSURANCE CO LTD
     NO 132, BALAJI SOURGEION
     2ND FLOOR BRIGADE ROAD
     NEAR BRIGADE TOWER
     BANGLROE 560025.
                                          ...RESPONDENTS
(BY SRI. B.PRADEEP.,ADVOCATE FOR R2:
    SRI. RAVI S SAMPRATHI, ADVOCATE FOR R4:
    NOTICE TO R1 & R3 IS D/W V/O DATED: 13.12.2023)


     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED:.20.04.2021
PASSED IN MVC NO.6231/2018 ON THE FILE OF THE VIII
ADDITIONAL SMALL CAUSE JUDGE AND ACMM, MEMBER,
MACT, BENGALURU, (SCCH-5), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

    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

NC: 2023:KHC:45310

dated 20.04.2021 passed by MACT, Bengaluru in MVC

No.6231/2018.

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

stated are that 05.09.2018 at about 3.00 a.m., the

claimant along with others was traveling in Omni Car

bearing Registration No.KA-02-MN-4750 on NH-4,

Tumkur-Sira Road, near Kataveeranahalli Gate,

Kallambella Hobli, Sira Taluk, Tumkur District, at the same

time, both drivers of the Car and the driver of the Lorry

bearing Registration No.KA-02-AD-9547 were being driven

rashly and recklessly and negligently with high speed

endangering human life and property and without given

any signal and parked the right side of the Highway Road

and dashed the Lorry. 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

NC: 2023:KHC:45310

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 driver.

4. On service of notice, the respondent Nos.2 and 4

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. 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, they sought for

dismissal of the petition.

The respondent Nos.1 and 3 did not appear before

the Tribunal inspite of service of notice and were placed

ex-parte.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

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the evidence. The claimant himself was examined as PW-3

and Dr.Nagaraj B N was examined as PW-10 and got

exhibited documents namely Ex.P1 to Ex.P67. On behalf

of the respondents, two witnesses were examined as RW-1

and RW-2 and got exhibited documents namely Ex.R1 to

Ex.R4. 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.9,51,000/- along with

interest at the rate of 9% p.a. and directed both Insurance

Companies to deposit the compensation amount along

with interest excluding the interest for future medical

expenses. Being aggrieved, the present appeal has been

filed.

6. The learned counsel for the claimant has raised the

following contentions:

NC: 2023:KHC:45310

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

working as coolie and agriculturist and earning

Rs.16,000/- per month, but the Tribunal has taken the

notional income as merely as Rs.10,500/- 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 physical disability of 43% to lower

limb and 27% to whole body. But the Tribunal has taken

the whole body disability at 18%, which is on the lower

side.

c) Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as inpatient for

a period of 50 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', 'future medical expenses' and other incidental

expenses are on the lower side. Hence, he sought for

allowing the appeal.

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7. On the other hand, the learned counsel for ICICI

Lambard and Royal Sundaram General Insurance

Companies has raised the following counter-contentions:

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

earning Rs.16,000/- 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.

b) Secondly, even though doctor has assessed the

physical disability of 43% to lower limb and 27% to whole

body, the Tribunal considering the injuries sustained by

the claimant and evidence of the doctor, has rightly

assessed the whole body disability at 18%.

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',

'future medical expenses' and other incidental expenses

NC: 2023:KHC:45310

are just and reasonable and it does not call for

interference.

d) Lastly, 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 9% 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 on 05.09.2018

due to rash and negligent driving of the driver of Omni Car

bearing Registration No.KA-02-MN-4750 and Lorry bearing

Registration No.KA-02-AD-9547.

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10. The claimant claims that he was earning Rs.16,000/-

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 2018, the notional

income has to be taken at Rs.12,500/- p.m.

11. As per wound certificate, the claimant has sustained

fracture of the right humerus, left tibia and fibula, multiple

rib fractures and undisplaced fracture of the right ulna.

The doctor in his evidence has stated that the claimant has

suffered physical disability of 43% to lower limb and 27%

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 18%. The claimant is aged about 19

years at the time of the accident and multiplier

applicable to his age group is '18'. Thus, the claimant is

entitled for compensation of Rs.4,86,000/-

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NC: 2023:KHC:45310

(Rs.12,500*12*18*18%) 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.37,500/- (Rs.12,500*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 was

treated as inpatient for more than 50 days in the hospital.

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.25,000/- to Rs.40,000/-.

14. The doctor in his chief-examination has admitted that

the claimant requires about Rs.80,000/- for future

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NC: 2023:KHC:45310

surgery. But the claimant has not produced any estimation

of future surgery. Considering the nature of injuries and

evidence of doctor, I am inclined to enhance

the compensation awarded by the Tribunal under the head

of 'future medical expenses' from Rs.30,000/- to

Rs.40,000/-. The same shall not carry any interest.

15. Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

16. 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                         80,000            80,000

     Medical expenses                          3,72,000           3,72,000

     Food, nourishment,                          25,000            25,000
     conveyance and
     attendant charges
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                                              NC: 2023:KHC:45310





     Loss of income during                10,500        37,500
     laid up period

     Loss of amenities                    25,000        40,000

     Loss of future income              4,08,000     4,86,000

     Future medical expenses              30,000        40,000

                   Total                9,50,500   10,80,500

                 Rounded of             9,51,000   10,81,000

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.10,81,000/-.

d) In view of judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE' (supra), the

enhanced compensation shall carry interest at 6%

per annum.