Karnataka High Court

Syed Akhil vs Thippanna on 14 December, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                           NC: 2023:KHC:45584
                                                         MFA No. 6960 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 14TH DAY OF DECEMBER, 2023

                                            BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 6960 OF 2021 (MV)
                   BETWEEN:

                   SYED AKHIL
                   S/O SYED PEER
                   AGED ABOUT 21 YEARS
                   R/AT NEAR MADEENA MASJID
                   SOLUR MAGADI TALUK
                   RAMANAGARA DISTRICT
                                                                 ...APPELLANT
                   (BY SRI. PAVAN KUMAR Y N.,ADVOCATE)

                   AND:

                   1.    THIPPANNA
                         S/O SAYABANNA YAGAPUR
                         MAJOR
                         R/AT NO 1-1E/26
Digitally signed         CHITTAPUR, GULBARGA - 585218.
by
DHANALAKSHMI
MURTHY
Location: High     2.    UNITED INDIA INSURANCE CO LTD
Court of
Karnataka                REGIONAL OFFICE
                         MOTOR 3RD PARTY CLAIM HUB
                         5TH FLOOR AND 6TH FLOOR
                         KRISHI BHAVAN HUDSON CIRCLE
                         BENGALURU - 560002.
                                                              ...RESPONDENTS
                   (BY SRI.K.NAGARAJAIAH., ADVOCATE FOR R2:
                       NOTICE TO R1 IS SERVED AND UNREPRESENTED)


                        THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
                   AGAINST THE JUDGMENT AND AWARD DATED: 27.09.2021
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                                        NC: 2023:KHC:45584
                                      MFA No. 6960 of 2021




PASSED IN MVC NO.986/2018 ON THE FILE OF THE IX
ADDITIONAL SMALL CAUSES JUDGE, COURT OF SMALL
CAUSES, MEMBER, MACT-7, BENGALURU, (SCCH-15), 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 27.09.2021 passed by MACT, Bengaluru in MVC

No.986/2018.

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

stated are that on 03.01.2018 at about 05.30 p.m., the

claimant was proceeding by walk on the left side of the

road near Siddappa Circle, NH-75, at that time, the rider

of the motor cycle bearing Registration No.KA-32-EK-9423

rode the same in a rash and negligent manner and dashed

to the claimant. As a result of the aforesaid accident, the

claimant sustained grievous injuries and was hospitalized.

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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 Nos.1 and 2

appeared through counsel and only respondent No.2 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, 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

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and Dr. C.V.Kumar was examined as PW-2 and got

exhibited documents namely Ex.P1 to Ex.P13. On behalf

of the respondents, one witness was examined as RW-1

and got exhibited documents namely Ex.R1 and Ex.R2.

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.3,23,053/- 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.9,000/- p.m.

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b) Secondly, the claimant has examined the doctor as

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

claimant has suffered permanent partial physical disability

of 45% to right leg and 15% to whole body. But the

Tribunal has taken the whole body disability at 10%, which

is on the lower side.

c) Thirdly, due to the accidental injuries, he has

underwent surgery. The doctor has deposed that the

claimant requires Rs.30,000/- to removal of implants. But

the Tribunal has failed to grant any compensation for

future medical expenses.

d) Lastly, due to the accident, the claimant has

sustained grievous injuries. He was treated as inpatient for

a period of 2 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.

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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.

b) Secondly, even though the doctor has assessed the

disability of 15% to the whole body, 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.

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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 03.01.2018

due to rash and negligent riding of the offending vehicle

by its rider.

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 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 right tibia and fibula. The doctor in his evidence

has stated that the claimant has suffered permanent

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partial physical disability of 45% to right leg and 15% to

whole body. Therefore, taking into consideration the

deposition of the doctor and injuries mentioned in the

wound certificate, I am of the opinion that the whole body

disability is assessed at 15%. 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.4,05,000/-

(Rs.12,500*12*18*15%) on account of 'loss of future

income'.

12. The claimant was treated as inpatient for more than

2 days in the hospital and thereafter, has received further

treatment. Hence, I am inclined to enhance the

compensation awarded under the head of 'loss of income

during the period of treatment and rest and attendant

charges' from Rs.15,000/- to Rs.18,000/-.

13. Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He has

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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.30,000/-

and under the head of 'loss of amenities' from Rs.20,000/-

to Rs.30,000/-.

14. The doctor in his evidence has stated that the

claimant requires about Rs.30,000/- for removal of

implants. But the claimant has not produced any

estimation of future surgery. Considering the nature of

injuries and evidence of doctor, I am of the opinion that

the claimant is also entitled for the compensation of

Rs.15,000/- under the head of 'future medical expenses'

and 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.

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NC: 2023:KHC:45584

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                    20,000         30,000

 Medical expenses                       73,653         73,653

 Loss of income during                  15,000         18,000
 the period of treatment
 and rest and attendant
 charges

 Loss of amenities                      20,000         30,000

 Loss of future income                1,94,400       4,05,000

 Future medical expenses                      0        15,000

                 Total                3,23,053      5,71,653

17. In the result, the following order is passed: