Karnataka High Court

Arkeshwara vs Deepa. P on 1 December, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                           NC: 2023:KHC:43325
                                                          MFA No. 343 of 2020




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 1ST DAY OF DECEMBER, 2023

                                            BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                    MISCELLANEOUS FIRST APPEAL NO. 343 OF 2020 (MV)
                   BETWEEN:

                   ARKESHWARA
                   S/O. LATE PUTTAIAH
                   AGED ABOUT 58 YEARS
                   RESIDING AT 1122
                   KARIGOWDA STREET
                   HUNSUR TOWN AND POST
                   HUNSUR TALUK-571 105.
                                                                  ...APPELLANT
                   (BY SRI. PADMANABHA KEDILAYA V., ADVOCATE)

                   AND:

                   1.    DEEPA. P
                         W/O. H. M. AMARESH
Digitally signed         MAJOR
by                       RESIDING AT NO. 11/1
DHANALAKSHMI
MURTHY                   CHIKKAGULLAPPA BUILDING
Location: High           VINAYAK TEMPLE ROAD
Court of                 HENNUR BANDE, KALYANAGAR
Karnataka                BANGALORE-560 053.

                   2.    TATA AIG GENERAL INSURANCE CO. LTD.,
                         2ND FLOOR, J. P. AND DEVI
                         JAMBUKESHWARA ARCADE
                         NO.69, MILLERS ROAD
                         BANGALORE-560 052.
                                                                ...RESPONDENTS
                   (BY SRI.PRADEEP B., ADVOCATE FOR R2:
                   NOTICE TO R1 IS DISPENSED WITH)
                              -2-
                                             NC: 2023:KHC:43325
                                          MFA No. 343 of 2020




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 07.12.2018
PASSED IN MVC NO.72/2018             ON THE FILE OF     THE II
ADDITIONAL   DISTRICT     AND    SESSIONS     JUDGE,   KODAGU
MADIKERI, SITTING AT VIRAJPET,          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 7.12.2018 passed by MACT, Kodagu-Madikeri,

sitting at Virajpet, in MVC No.72/2018.

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

stated are that on 27.10.2017 when the claimant was

proceeding on scooter from Hunsur side towards Virajpet

near Bhadragola Village, at that time, Innova car bearing

registration No.KA-01-MM-2229 being driven by its driver

at a high speed and in a rash and negligent manner,

NC: 2023:KHC:43325

dashed to the vehicle of the claimant. 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 respondents appeared

through counsel and filed written statements in which the

averments made in the petition were denied.

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.Varadaraj.S.K. was examined as CW-1 and got

exhibited documents namely Ex.P1 to Ex.P11 and C-1 to

C-3. On behalf of the respondents, no witness was

NC: 2023:KHC:43325

examined and got exhibited documents namely Ex.R1 to

Ex.R4. 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.197,180/- 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.

6. The learned counsel for the claimant has raised the

following contentions:

a) Firstly, even though the claimant claims that he was

working as real estate agent work and earning

Rs.20,000/- per month, but the Tribunal has taken the

notional income as merely as Rs.4,500/- p.m.

b) Secondly, the claimant has examined the doctor as

CW-1. The doctor in his evidence has stated that the

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claimant has suffered disability of 79.66% to particular

limb. But the Tribunal has taken the whole body disability

at 13%, 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 3 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.20,00/- per month, he has not produced any

documents to establish his income. In the absence of proof

NC: 2023:KHC:43325

of income, the Tribunal has rightly assessed the income of

the claimant notionally.

b) Secondly, the injuries sustained by the claimant are

minor in nature. Considering the nature of injuries, the

disability stated by the doctor at 79.66.% is exorbitant

and whole body disability taken by the Tribunal at 13% is

on the higher side.

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) 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:43325

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 27.10.2017

due to rash and negligent driving of the offending vehicle

by its driver.

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 2017, the notional

income has to be taken at Rs.11,000/- p.m.

11. As per wound certificate, the claimant has sustained

fracture of left humerus, abrasion of left elbow, abrasion of

left foot, abrasion of left knee and abrasion of face. The

doctor in his evidence has stated that the claimant has

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suffered disability of 79.66% to particular limb. 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 can be taken at

25%. The claimant is aged about 57 years at the time of

the accident and multiplier applicable to his age group is

'9'. Thus, the claimant is entitled for compensation of

Rs.297,000/- (Rs.11,000*12*9*25%) on account of 'loss

of future income'.

12. The claimant was treated as inpatient for more than

3 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, loss of amenities and future

unhappiness'' from Rs.50,000/- to Rs.80,000/- and

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under the head of 'medical expenses including

nourishment, attendance charges, conveyance' from

Rs.84,000/- to Rs.100,000/-. It is made clear that the

said amount include the 'loss of income during laid-up

period'.

13. The doctor in his evidence has stated that the

claimant requires about Rs.50,000/- to Rs.60,000/-

towards 'future medical expenses'. But the claimant has

not produced any documents. Considering the nature of

injuries and evidence of doctor, I am inclined to award a

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

expenses'.

14. 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, loss              50,000          80,000
  of amenities and future
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                                                 NC: 2023:KHC:43325





     unhappiness

     Medical expenses,                   84,000             100,000
     nourishment,
     conveyance and
     attendant charges

     Loss of future income               63,180             297,000

     Future medical expenses                     0           15,000

                   Total                197,180             492,000

15. 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.492,000/-.

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.