Karnataka High Court
Venkataswamy vs S Sudhakar on 14 December, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2023:KHC:45553
MFA No. 1594 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.1594 OF 2021(MV-I)
BETWEEN:
VENKATASWAMY,
S/O GURRAPPA,
AGED ABOUT 57 YEARS,
R/AT YARRAPALYA VILLAGE,
PAVAGADA TALUK - 561 202.
...APPELLANT
(BY SRI. SHANTHARAJ K., ADVOCATE)
AND:
1. S. SUDHAKAR,
S/O SIDDAPPA,
AGED ABOUT 55 YEARS,
R/AT BANNI NAGAR,
Digitally signed SIRA TOWN - 572 137.
by
DHANALAKSHMI
MURTHY
Location: High 2. IFFCO TOKIO GEN.INS.CO.LTD.,
Court of
Karnataka BY ITS MANAGER,
NO.141, SREE SHANTHI TOWER,
4TH FLOOR, 3RD MAIN,
EAST NGEF LAYOUT,
KASTURINAGAR,
BENGALURU - 560 043.
...RESPONDENTS
(BY SRI. H.S. LINGARAJ, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED AND UNREPRESENTED)
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NC: 2023:KHC:45553
MFA No. 1594 of 2021
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 28.09.2018 PASSED IN MVC
NO.735/2016, ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., AND MACT, PAVAGADA, 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 28.09.2018 passed by MACT, Pavagada in MVC No.
736/2016.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 12.6.2013 at about 3.30 p.m., when the
claimant and his daughter by name Prameela had gone to
Pavagada to attend some work and while returning from
Pavagada to their native place by autorickshaw bearing
registration No. KA-06-C-6174, when they were near
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Bommathanahalli gate of Pavagada-Challakere Road at
about 3.45 p.m., the bus by name SVT bearing
registration No.KA-06-D-8888 coming from Kotagudda to
Pavagada being driven by its driver in a rash and negligent
manner and without following traffic rules, dashed against
the autorickshaw and caused the accident. As a result of
the aforesaid accident, the claimant sustained grievous
injuries to his right knee and 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 driver.
4. On service of notice, the respondents appeared
through counsel and filed written statement denying the
averments made in the claim petition.
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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 and
got exhibited documents namely Ex.P1 to Ex.P11. On
behalf of the respondents, though they filed their written
statement did not chose to adduce any evidence either
oral or documentary on their behalf or examined any
witnesses. 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.97,850/-
along with interest at the rate of 6% p.a. and directed the
owner of the bus to deposit the compensation amount
along with interest. Being aggrieved, the present appeal
has been filed by the claimant for enhancement.
6. Sri Shantharaj K., learned counsel for the claimant
has raised the following contentions:
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a) Firstly, even though the claimant claims that he was
doing the stone cutting and dressing of stone materials
work and earning more than Rs.30,000/- per month, but
the Tribunal has taken the notional income as merely as
Rs.10,000/- p.m.
b) Secondly, due to the accident, the claimant has
sustained grievous injuries. He was treated as inpatient for
a period of 8 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.
c) Lastly, due to the accident, the claimant has suffered
grievous injuries and he has undergone surgery. He has
spent more than a sum of Rs.1,00,000/- towards medical
expenses. The Global compensation of Rs.97,850/-
awarded by the Tribunal is on the lower side. Hence, he
sought for enhancement of compensation.
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7. On the other hand, Sri H.S. Lingaraj, the learned
counsel for the Insurance Company has raised following
counter contentions:
a) Firstly, even though the claimant claims that he was
earning Rs.30,000/- 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, the injuries suffered by the claimant are
minor in nature. Though he has not examined the doctor,
considering the medical records and the wound certificate
- Ex.P.6, the Tribunal has awarded the just and reasonable
compensation.
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.
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d) Fourthly, in respect of the liability since the insured
has violated the conditions of the policy, the Tribunal has
rightly exonerated the insurance company, but he does
not dispute in respect of other claim petitions in which the
insurance company has paid the compensation. 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 12.6.2013
due to rash and negligent driving of the offending vehicle
i.e., bus bearing registration No.KA-06-D-8888 by its
driver.
10. As per wound certificate, the claimant has sustained
disfluxation of patella right knee CLW and patella fixation
done. He has not examined the doctor, who treated him.
Therefore, taking into consideration the wound certificate
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Ex.P.6 and discharge summary - Ex.P.8, I am of the
opinion that the claimant is entitled for enhancement of
global compensation from Rs.97,850/- to Rs.1,50,000/-
with interest at 6% per annum.
11. In respect of the liability is concerned, in respect of
the same accident, two other claim petitions were filed i.e.
MVC NoS.652/2016 and 656/2016 wherein the Tribunal
has held that the insurance company is liable to pay the
compensation, which is not challenged.
12. 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.1,50,000/-.
d) The Insurance Company is directed to deposit the
compensation amount along with interest
@ 6% p.a. from the date of filing of the claim
petition till the date of realization, within a period of
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six weeks from the date of receipt of copy of this
judgment.
e) In view of the order dated 14.12.2023 passed by this
Court, the claimant is not entitled for interest on the
enhanced compensation for the delayed period of
314 days in filing the appeal.
Sd/-
JUDGE
NSU
CT:SNN
