Karnataka High Court

Vinod Kumar vs M/S Sri Chowdeshwari Concrete India Pvt ... on 6 December, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                         NC: 2023:KHC:44078
                                                       MFA No. 5532 of 2021




                        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. 5532 OF 2021 (MV)
                   BETWEEN:

                   VINOD KUMAR
                   S/O PRABHAKAR V
                   AGED ABOUT 32 YEARS
                   RESIDING AT NEAR GANESH TEMPLE
                   JYOTHI GOWDANAPURA
                   CHAMARAJANAGAR
                   KARNATAKA.
                                                               ...APPELLANT
                   (BY SRI. JAGADISH GUNDAPPA.,ADVOCATE)

                   AND:

                   1.    M/S SRI CHOWDESHWARI
Digitally signed         CONCRETE INDIA PVT LTD
by
DHANALAKSHMI             NO.801, 8TH MAIN, 5TH CROSS
MURTHY                   5TH STAGE, BEML LAYOUT
Location: High
Court of                 RAJARAJESHWARI NAGAR
Karnataka
                         BENGALURU-560098.

                   2.    THE MANAGER
                         ROYAL SUNDARAM GENERAL
                         INSURANCE COMPANY LTD.,
                         NO.30, 3RD FLOOR
                         JNR CITY CENTRE
                         RAJARAM MOHAN ROY ROAD
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                                           NC: 2023:KHC:44078
                                        MFA No. 5532 of 2021




     SAMPANGIRAMANAGAR
     BENGALURU-560027.
                                                ...RESPONDENTS
(BY SRI.H.S. LINGARAJ., 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: 12.04.2021
PASSED IN MVC NO.5931/2019 ON THE FILE OF THE MEMBER,
MACT, XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
BENGALURU SCCH-4, 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 12.4.2021 passed by MACT, Bengaluru in MVC

No.5931/2019.

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

stated are that on 5.8.2019 when the claimant was

proceeding from Nagarbhavi towards Summanahalli riding

on motorcycle bearing registration No.KA-09-EP-8902 near

Mahadeshwara Temple, at that time, lorry bearing

NC: 2023:KHC:44078

registration No.KA-41-C-0787 being driven by its driver at

a high speed and in a rash 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 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

NC: 2023:KHC:44078

and Dr.S.A.Somashekara was examined as PW-2 and got

exhibited documents namely Ex.P1 to Ex.P16. On behalf

of the respondents, neither any witness was examined nor

any document was produced. 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.966,000/-

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

doing carpenter work and earning Rs.30,000/- per month,

but the Tribunal has taken the notional income as merely

as Rs.12,000/- p.m.

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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 58% to particular limb

and 29% to whole body. But the Tribunal has taken the

whole body disability at 20%, 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 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. Even the doctor

has stated that the claimant requires to undergo one more

surgery for removal of implants. 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. Hence, he sought for allowing the appeal.

7. On the other hand, the learned counsel for the

Insurance Company has raised following counter

contentions:

NC: 2023:KHC:44078

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 Tribunal considering the injuries

sustained by the claimant and evidence of the doctor, has

rightly assessed the whole body disability at 20%.

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',

'future medical expenses' 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.

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9. It is not in dispute that the claimant has sustained

injuries in the road traffic accident occurred on 5.8.2019

due to rash and negligent driving of the offending vehicle

by its driver.

10. The claimant claims that he was earning Rs.30,000/-

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 2019, the notional

income has to be taken at Rs.14,000/- p.m.

11. As per wound certificate, the claimant has sustained

comminuted midshaft fracture left femur, fracture of both

bones right leg and fracture base of 2nd metatarsal right

foot. The doctor in his evidence has stated that the

claimant has suffered disability of 58% to particular limb

and 29% to whole body. Therefore, taking into

consideration the deposition of the doctor and injuries

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mentioned in the wound certificate, the Tribunal has

rightly taken the whole body disability at 20%. The

claimant is aged about 31 years at the time of the

accident and multiplier applicable to his age group is '16'.

Thus, the claimant is entitled for compensation of

Rs.537,600/- (Rs.14,000*12*16*20%) 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 4

months. Therefore, the claimant is entitled for

compensation of Rs.56,000/- (Rs.14,000*4 months)

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

13. The claimant was treated as inpatient for more than

8 days in the hospital and thereafter, has received further

treatment. Hence, I am inclined to enhance the

compensation awarded under the head of 'food,

nourishment, conveyance and attendant charges' from

Rs.8,000/- to Rs.15,000/-.

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14. 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.50,000/- to Rs.60,000/-

and under the head of 'loss of amenities' from Rs.50,000/-

to Rs.60,000/-.

15. Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

16. 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         60,000
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     Medical expenses                   318,973           318,973

     Food, nourishment,                   8,000            15,000
     conveyance and
     attendant charges

     Loss of income during               48,000            56,000
     laid up period

     Loss of amenities                   50,000            60,000

     Loss of future income              460,800           537,600

     Future medical expenses             30,000            30,000

                   Total                965,773       10,77,573

          Rounded off                   966,000       10,78,000

17. 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.10,78,000/-.

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