Karnataka High Court

Sri Yashwantha A N vs The Manager on 14 December, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

                                               -1-
                                                            NC: 2023:KHC:45552
                                                        MFA No. 1369 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.1369 OF 2021(MV-I)
                   BETWEEN:

                         SRI. YASHWANTHA A.N.,
                         S/O NATARAJU,
                         AGED ABOUT 20 YEARS,
                         R/AT ARAKERE VILLAGE AND HOBLI,
                         SRIRANGAPATNA TALUK,
                         MANDYA DISTRICT - 571 434.

                         BEFORE THE MACT YASHWANTHA A.N. IS
                         BEING MINOR REPRESENTED BY HIS FATHER
                         NATARAJU AS NATURAL GUARDIAN, NOW HE HAS
                         ATTAINED MAJORITY.
                                                               ...APPELLANT
                   (BY SRI. VIJAY KUMAR T., ADVOCATE)
Digitally signed
by                 AND:
DHANALAKSHMI
MURTHY
Location: High
Court of           1.    THE MANAGER,
Karnataka
                         UNITED INDIA INSURANCE CO. LTD.,
                         NO.1119/B,
                         KAMBLI BUILDING,
                         M.C. ROAD,
                         ASHOK NAGARA,
                         MANDYA - 571 401.

                   2.    SRI. RAVINDRA A.M.,
                         S/O LATE J. MARIGOWDA,
                         AGED ABOUT 59 YEARS,
                            -2-
                                       NC: 2023:KHC:45552
                                     MFA No. 1369 of 2021




     R/AT ARAKERE VILLAGE AND HOBLI,
     SRIRANGAPATNA TALUK,
     MANDYA DISTRICT - 571 434.
                                          ...RESPONDENTS
(BY SRI. SHANKARA REDDY C., ADVOCATE FOR R1;
    NOTICE TO R2 IS DISPENSED WITH)

      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED. 22.08.2019, PASSED IN MVC
NO.923/2017, ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE   AND   MEMBER,   MACT,    SRIRANGAPATANA,   PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

      THIS APPEAL COMING ON FOR FURTHER 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 22.08.2019 passed by Principal Senior Civil Judge

and MACT., Srirangapatna in MVC No.923/2017.

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

stated are that on 4.11.2016 at about 7.30 p.m. when the

claimant was proceeding on motorbike bearing registration

NC: 2023:KHC:45552

No. KA-11-Q-2972 as a pillion rider near Petrol Bunk on

Arakere - Mandya Koppalu Road, Srirangapattana Taluk, at

that time, the rider of the claimant's motorbike drove the

same in a rash and negligent manner and dashed against

the another motorbike bearing registration No.KA-55-V-

8824. 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

charges, etc. It was further pleaded that the accident

occurred purely on account of the rash and negligent

riding of the rider of the motorbike in which the claimant

was pillion rider.

4. On service of notice, the respondent No.2 appeared

through counsel and filed written statement denying the

averments made in the claim petition. The respondent

No.1 did not appear before the Tribunal inspite of service

of notice and was placed ex-parte.

NC: 2023:KHC:45552

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

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant examined himself as PW-1; Sri

Chetan, Medical Records Assistant, Apollo BGS Hospital,

Mysore and Dr Rutvik S. Kashyapa, Assistant Psychological

Professor, JSS Hospital, Mysore were examined as PW-2

and PW-3 respectively; got exhibited documents namely

Ex.P1 to Ex.P33. On behalf of the respondents, no oral

evidence was led but a copy of the policy was got

exhibited 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 rider

of the motorbike in which the claimant was traveling as a

pillion rider, as a result of which, the claimant sustained

injuries. The Tribunal further held that the claimant is

entitled to a compensation of Rs.4,77,000/- along with

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

company to deposit the compensation amount along with

interest. Being aggrieved, the present appeal has been

filed.

NC: 2023:KHC:45552

6. The learned counsel for the claimant has raised the

following contentions:

a) Firstly, the claimant claims that he was a student

aged about 16 years and has suffered severe head injury

in the accident and permanent disability and is not in a

position to attend the school. He has lost his bright

future.

b) Secondly, the claimant has examined the doctor as

PW-3. The doctor in his evidence has stated that the

claimant has suffered disability of 50% to the whole body.

Since the disability suffered by the claimant is

neurological, the Tribunal erred in assessing the disability

only at 25% which is on the lower side.

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

suffered disability and the doctor has rightly assessed the

whole body disability at 50% and the Tribunal has erred in

assessing the whole body disability at 25%.

NC: 2023:KHC:45552

d) Lastly, the claimant has sustained head injuries. He

has suffered permanent disablement and as such, he is

not in a position to attend the school and as such, he has

left the school. He was treated as inpatient for a period of

5 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.

7. On the other hand, Sri Shankar Reddy, learned

counsel for the Insurance Company has raised following

counter contentions:

a) Firstly, even though the doctor has assessed the

disability at 50% to the whole body, the claimant has not

examined the doctor who treated him and on the basis of

the medical records, the Tribunal has assessed the

disability.

NC: 2023:KHC:45552

b) Secondly, the Tribunal considering the injuries

sustained by the claimant and evidence of the doctor, has

rightly assessed the whole body disability at 25% .

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.

d) Fourthly, considering the judgment of the Apex

Court in the case stated supra, overall compensation

awarded by the Tribunal is just and reasonable.

e) 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.

NC: 2023:KHC:45552

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 that occurred on

4.11.2016 due to rash and negligent driving of the rider of

the motorbike in which he was traveling as a pillion rider.

10. The claimant claims that at the time of the accident,

he was aged about 16 years and was a student. Due to

the accident, he has sustained severe head injury. Dr.

Rutvik S. Kashyapa, Assistant Psychological Professor, JSS

Hospital, Mysore, examined as P.W.3 has deposed in his

evidence that the claimant has suffered disablement to an

extent of 50% to the whole body. Since the claimant has

suffered severe head injury, the disability has to be

assessed at 50% to the whole body.

11. In view of the judgment of the Apex Court in the case

of Master Mallikarjun -vs- Divisional Manager, National

Insurance Company Limited and Another reported in

2013 ACJ [(2014)14 SCC 396] wherein it has been held

that in case of injuries suffered by the minor and the

NC: 2023:KHC:45552

disability is above 30% and upto 60%, then a

compensation of Rs.4,00,000/- has to be awarded under

the head Pain and suffering and mental and physical

shock, hardship, inconvenience and discomfort.

Accordingly, the claimant is entitled a compensation of

Rs.4,00,000/- under the said head.

12. The claimant was treated as inpatient for more than 5

days in the hospital and thereafter, has received further

treatment. He has spent an amount of Rs.91,000/-.

Therefore the amount awarded towards medical expenses

is just and proper.

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 of the opinion that the

claimant is entitled to compensation of Rs.40,000/- under

the head of 'discomfort, inconvenience, loss of earning to

the parents'

- 10 -

NC: 2023:KHC:45552

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 by this Compensation under Court different Heads (Rs.)

Pain and sufferings 4,00,000

Loss of income of 40,000 parents of petitioner during laid up period and rest period of the petitioner

Towards medical 91,000 expenses

Total 5,31,000

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