Karnataka High Court

Sri Krishnappa vs Smt Jayanthi on 6 December, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                           NC: 2023:KHC:44085
                                                       MFA No. 3439 of 2020




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 6TH DAY OF DECEMBER, 2023

                                            BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 3439 OF 2020 (MV)
                   BETWEEN:

                   SRI KRISHNAPPA
                   S/O LATE MAREGOWDA
                   AGED ABOUT 52 YEARS
                   R/AT SHIVANNEGOWDANADODDI VILLAGE
                   I GOLLAHALLI POST, UYYAMBALLI HOBLI
                   KANAKAPURA TALUK
                   RAMANAGARA DISTRICT-562117.
                                                                   ...APPELLANT
                   (BY SRI. GIRIMALLAIAH., ADVOCATE)

                   AND:

                   1.    SMT JAYANTHI
                         W/O THAMMANNA
                         MAJOR
Digitally signed         R/AT NO.6, MAIN ROAD
by                       KEBBAHALLI VILLAGE
DHANALAKSHMI             NARAYANAPURA POST
MURTHY
Location: High           KANAKAPURA TALUK
Court of                 RAMANAGARA DISTRICT-562117.
Karnataka
                   2.    THE MANAGER
                         LIBERTY VIDIOCON GENERAL
                         INSURANCE COMPANY LTD
                         OFFICE NO.1, ALYASA
                         IST FLOOR, OLD NO.28
                         RICHMOND TOWN, BENGALURU-560025
                                                                 ...RESPONDENTS
                   (BY SRI.RAVI S SAMPRATHI., ADVOCATE FOR R2:
                   NOTICE TO R1 IS DISPENSED WITH
                   V/O DATED:19.4.2022)
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                                          NC: 2023:KHC:44085
                                        MFA No. 3439 of 2020




      THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 16.11.2019
PASSED IN MVC NO.196/2018          ON THE FILE OF THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA
SIT AT KANAKAPURA, 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 16.11.2019 passed by MACT, Kanakapura in MVC

No.196/2018.

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

stated are that on 14.3.2018 when the claimant was

proceeding on motorcycle bearing registration No.KA-42-J-

7506 near Narayanapura on Kanakapura to Kodihalli Road,

at that time, JCB bearing registration No.KA-42-M-4010

being driven by its driver at a high speed and in a rash

NC: 2023:KHC:44085

and negligent manner, 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 respondent No.2 appeared

through counsel and filed written statement in which the

averments made in the petition were denied. 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

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and another witness as PW-2 and Dr.Malavegowda.R.N.

was examined as PW-3 and got exhibited documents

namely Ex.P1 to Ex.P17. On behalf of the respondents,

two witnesses were examined as RWs-1 and 2 and got

exhibited documents namely Ex.R1 to Ex.R2. 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.330,167/- along with interest at the rate of 7.5% 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

doing agricultural work and earning Rs.15,000/- per

NC: 2023:KHC:44085

month, but the Tribunal has taken the notional income as

merely as Rs.7,500/- p.m.

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 50.51% to particular

limb and 16-17% to whole body. But the Tribunal has

taken the whole body disability at 6%, 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 25 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', 'future medical expenses' and other incidental

expenses are on the lower side. The Tribunal has failed to

grant compensation under the head of 'loss of income

during laid-up period'. Hence, he sought for allowing the

appeal.

NC: 2023:KHC:44085

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

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 6%.

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

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connected matters disposed of on 24.8.2020), the

rate of interest awarded by the Tribunal at 7.5% 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 14.3.2018

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 2018, the notional

income has to be taken at Rs.12,500/- p.m.

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11. As per wound certificate, the claimant has sustained

fracture of left leg. The doctor in his evidence has stated

that the claimant has suffered disability of 50.51% to

particular limb and 16-17% to whole body. Therefore,

taking into consideration the deposition of the doctor and

injuries mentioned in the wound certificate, the whole

body disability can be taken at 15%. The claimant is aged

about 50 years at the time of the accident and multiplier

applicable to his age group is '13'. Thus, the claimant is

entitled for compensation of Rs.292,500/-

(Rs.12,500*12*13*15%) on account of 'loss of future

income'.

12. The claimant was treated as inpatient for more than

25 days in the hospital and thereafter, has received

further treatment. The nature of injuries suggests that the

claimant must have been under rest and treatment for a

period of 4 months. Therefore, the claimant is entitled for

compensation of Rs.50,000/- (Rs.12,500*4 months)

under the head 'loss of income during laid up period'.

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13. The doctor in his evidence has specifically stated that

the claimant requires about Rs.65,000/- for surgery for

removal of implants. Considering the nature of injuries and

evidence of doctor, I am inclined to enhance the

compensation awarded by the Tribunal under the head of

'future medical expenses' from Rs.50,000/- to

Rs.65,000/-.

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                  50,000           50,000

  Medical expenses                     99,967           99,967

  Food, nourishment,                   10,000           10,000
  conveyance and
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                                                 NC: 2023:KHC:44085





     attendant charges

     Loss of income during                       0           50,000
     laid up period

     Loss of amenities                   50,000              50,000

     Loss of future income               70,200             292,500

     Future medical expenses             50,000              65,000

                   Total                330,167             617,467

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.617,467/-.

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.