Karnataka High Court
Harish vs Nagarajayya M H on 14 December, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2023:KHC:45582
MFA No. 4461 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. 4461 OF 2021 (MV)
BETWEEN:
HARISH
S/O MUNIRAJU
AGED ABOUT 26 YEARS
RESIDING AT NERALUR ANEKAL TALUK
BANGALORE URBAN
...APPELLANT
(BY SRI. JAGADEESH KUMBAR, ADVOCATE FOR
SRI. SREENIVASAIAH A.,ADVOCATE)
AND:
1. NAGARAJAYYA M H
S/O MAHALINGAPPA
NITTUR VILLAGE
HIREKERUR TALUK
Digitally signed HAVERI DISTRICT
by KARNATAKA-581115.
DHANALAKSHMI
MURTHY
Location: High 2. THE MANAGER
Court of
Karnataka M/S NATIONAL INSURANCE CO. LTD
R/O NO.144, 2ND FLOOR
SHUBHARAM COMPLEX
M G ROAD, BENGALURU-560001.
...RESPONDENTS
(BY SRI.E.I. SANMATHI., ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 24.02.2021
PASSED IN MVC NO. 3282/2018 ON THE FILE OF THE XXIV
ADDTIONAL SMALL CAUSES JUDGE AND ACMM AND MEMBER,
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MFA No. 4461 of 2021
MACT, A.C.M.M. BENGALURU (SCCH-26),
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 24.02.2021 passed by MACT, Bengaluru in MVC
No.3282/2018.
2. Facts giving rise to the filing of the appeal briefly
stated are that 08.05.2018 at about 02.15 p.m., when the
claimant was riding a motor cycle bearing Registration
No.KA-02-EQ-6400, in front of Green dot international
school, Bandapur, Attibele, at that time, the driver of the
Car bearing Registration No.KA-27-B-8208 came with high
speed and in a rash and negligent manner, endangering
human life, came in opposite direction with high speed and
due to excessive speed, he lost control over his vehicle
and came to wrong side and dashed against the motor
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cycle. 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
driving of the offending vehicle by its driver.
4. On service of notice, 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. 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.
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The respondent No.1 did not appear before the
Tribunal inspite of service of notice and was placed ex-
parte.
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 Dr.Nagaraj B. N. was examined as PW-2 and got
exhibited documents namely Ex.P1 to Ex.P11. On behalf of
the respondents, neither examined any witness nor
exhibited any document. 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.2,54,000/-
along with interest at the rate of 9% p.a. and directed the
Insurance Company to deposit the compensation amount
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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 mason work and earning Rs.1,000/- to Rs.1,200/-
per day, but the Tribunal has taken the notional income as
merely as Rs.9,000/- 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 disability of 41% to right lower limb
and 13% to whole body. But the Tribunal has taken the
whole body disability at 10%, which is on the lower side.
c) Lastly, due to the accident, the claimant has
sustained grievous injuries. He was treated as inpatient for
a period of 10 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
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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, the learned counsel for the
Insurance Company has raised following counter
contentions:
a) Firstly, even though the claimant claims that he was
earning Rs.1,000/- to Rs.1,200/- per day, 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
whole body disability of the claimant at 13%, 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
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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) 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 08.05.2018
due to rash and negligent driving of the offending vehicle
by its driver.
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10. The claimant claims that he was earning Rs.1,000/-
to Rs.1,200/- per day. 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
type II compound fracture of both bones right leg. The
doctor in his evidence has stated that the claimant has
suffered disability of 41% to right lower limb and 13% to
whole body. Therefore, taking into consideration the
deposition of the doctor and injuries mentioned in the
wound certificate and discharge summary, I am of the
opinion that the whole body disability is assessed at 13%.
The claimant is aged about 22 years at the time of the
accident and multiplier applicable to his age group is '18'.
Thus, the claimant is entitled for compensation of
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Rs.3,51,000/- (Rs.12,500*12*18*13%) 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 10 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 'pain and sufferings' from Rs.30,000/- to Rs.40,000/-
and under the head of 'loss of amenities' from Rs.35,000/-
to Rs.45,000/-.
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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 As awarded
by the by this
Compensation under
Tribunal Court
different Heads
(Rs.) (Rs.)
Pain and sufferings 30,000 40,000
Medical expenses 46,448 46,448
Food, nourishment, 30,000 30,000
conveyance and
attendant charges
Loss of income during 27,000 37,500
laid up period
Loss of amenities 35,000 45,000
Loss of future income 64,800 3,51,000
Future medical expenses 20,000 20,000
Total 2,53,248 5,69,948
Rounded of 2,54,000 5,70,000
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16. 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.5,70,000/-.
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.
e) The Insurance Company is directed to deposit the
compensation amount along with interest
from the date of filing of the claim petition till the
date of realization, within a period of six weeks from
the date of receipt of copy of this judgment.
Sd/-
JUDGE
HA
