Karnataka High Court
Mr Safwan N M vs National Insurance Company Ltd on 14 December, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2023:KHC:45625
MFA No. 601 of 2022
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. 601 OF 2022 (MV)
BETWEEN:
MR SAFWAN N M
S/O MAHAMMED SAHRIF
AGED 28 YEARS
R/A NEERALIKE, KUPPEPADAVU
KILLENJARU,MANGALURU.
...APPELLANT
(BY SRI. GURUPRASAD B R.,ADVOCATE)
AND:
1. NATIONAL INSURANCE COMPANY LTD
IST FLOOR, NITHYANANDA COMPLEX
NEAR BUS STAND MOODABIDRI
LOCAL OFFICE BHARATH BUILDING
Digitally signed
3RD FLOOR, P M RAO ROAD
by MANGALURU-575002
DHANALAKSHMI
MURTHY REPRESENTED BY ITS MANAGER.
Location: High
Court of
Karnataka 2. SRI CHANDRASHEKAR
CHANNABASAPPA
AGED MAJOR
R/A D NO.9-112 P28
FLAT NO.204, 2ND FLOOR
ASHRITHA ENCLAVE
MARPADY, MOODABIDRI
MANGALURU TALUK.
...RESPONDENTS
(BY SRI. ANUP SEETHARAM RAO., ADVOCATE FOR R1:
NOTICE TO R2 IS DSPENSED WITH)
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NC: 2023:KHC:45625
MFA No. 601 of 2022
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 31.07.2020
PASSED IN MVC NO.879/2018 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MEMBER,
MACT-IV, D.K.MANGALURU, 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 31.7.2020 passed by MACT, Mangaluru in MVC
No.879/2018.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 19.5.2017 when the claimant was
proceeding on motorcycle bearing registration No.KA-19-
ER-5447 from Neeralke towards Kuupepadavu as a pillion
rider being ridden by his father, at that time, the rider of
the said motorcycle rode the same at a high speed and in
a rash and negligent manner, and caused accident. As a
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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 offending vehicle by its 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.
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.Ullas Shetty was examined as PW-3 and other
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witness as PW-2 and got exhibited documents namely
Ex.P1 to Ex.P26. On behalf of the respondents, one
witness was examined as RW-1 and got exhibited
documents namely Ex.R1 to Ex.R3. 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.374,109/- 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
running footwear shop and earning Rs.15,000/- per
month, but the Tribunal has taken the notional income as
merely as Rs.10,000/- p.m.
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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 19%. But the Tribunal
has taken the whole body disability at 7%, 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 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, the learned counsel for the
Insurance Company has raised following counter
contentions:
a) Firstly, even though the claimant claims that he was
earning Rs.15,000/- per month, he has not produced any
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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 Tribunal considering the injuries
sustained by the claimant and evidence of the doctor, has
rightly assessed the whole body disability at 7%.
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.
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 19.5.2017
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due to rash and negligent driving of the offending vehicle
by its driver.
10. The claimant claims that he was earning Rs.15,000/-
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 2017, the notional
income has to be taken at Rs.11,000/- p.m.
11. As per wound certificate, the claimant has sustained
fracture to upper side of left tibia. The doctor in his
evidence has stated that the claimant has suffered
disability of 19% to particular limb. 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 7%. The claimant
is aged about 26 years at the time of the accident and
multiplier applicable to his age group is '17'. Thus, the
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claimant is entitled for compensation of Rs.157,080/-
(Rs.11,000*12*17*7%) 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.33,000/- (Rs.11,000*3 months)
under the head 'loss of income during laid up period'.
13. The claimant was treated as inpatient for more than
5 days in the hospital and thereafter, has received further
treatment. 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 inclined to enhance the
compensation awarded by the Tribunal under the head of
'pain and sufferings' from Rs.25,000/- to Rs.40,000/-
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and under the head of 'loss of amenities' from Rs.25,000/-
to Rs.40,000/-.
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 25,000 40,000
Medical expenses 101,309 101,309
Food, nourishment, 10,000 10,000
conveyance and
attendant charges
Loss of income during 30,000 33,000
laid up period
Loss of amenities 25,000 40,000
Loss of future income 142,800 157,080
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Future medical expenses 40,000 40,000
Total 374,109 421,389
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.421,389/-.
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
six weeks from the date of receipt of copy of this
judgment.
Sd/-
JUDGE
DM
