Karnataka High Court

Vinodh Goudu vs Sardar S on 6 December, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                      MFA No. 6294 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. 6294 OF 2021 (MV)
                   BETWEEN:

                   VINODH GOUDU
                   AGED ABOUT 30 YEARS
                   S/O A GOVINDHA GOUDU
                   R/AT SHUBAJANARDHAN APARTMENT
                   ATTIBELE, ANEKAL
                   BENGALURU URBAN
                   NATIVE ADDRESS
                   PERUMALAPALLI, BANGARUPALEM
                   CHITOOR DISTRICT. A.P.
                                                                 ...APPELLANT
                   (BY SRI. JAGADISH GUNDAPPA.,ADVOCATE)

                   AND:

                   1.    SARDAR S
Digitally signed         S/O SYED ABBAS
by
DHANALAKSHMI             NO.24 KAPPALAMADAGU VILLAGE & PO
MURTHY
Location: High
                         MULABAGAL TALUK
Court of                 KOLAR-563131.
Karnataka

                   2.    THE MANAGER
                         CHOLA MS GENERAL INSURANCE CO LTD
                         NO.4/9, 6TH FLOOR
                         GOLDEN HEIGHT BUILDING
                         STAR BAZAR RAJKUMAR ROAD
                         RAJAJINAGAR, BENGALURU-560 010
                                                              ...RESPONDENTS
                   (BY SRI.B. PRADEEP., ADVOCATE FOR R2:
                   NOTICE TO R1 IS DISPENSED WITH)
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                                          NC: 2023:KHC:44175
                                       MFA No. 6294 of 2021




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED:03.04.2021
PASSED IN MVC NO.706/2020 ON THE FILE OF THE VIII
ADDITIONAL SMALL CAUSE JUDGE, ACMM, MEMBER, MACT,
BENGALURU, (SCCH-5), 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

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act', for

short) has been filed by the claimant being aggrieved by

the judgment dated 03.04.2021 passed by the Court of

VIII Additional Small Causes Judge and the Motor Accident

Claims Tribunal (SCCH-5), Bengaluru (for short, 'the

Tribunal') in MVC No.706/2020.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 21.05.2019 at about 6.00 a.m.,

the claimant was proceeding in Bolero bearing registration

No.AP-03/TE-4860. When he reached near Kempapura

Gate, Mulbagal - Pungunur road, at that time, one Eicher

vehicle bearing registration No.KA-07/S-7367 being driven

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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, 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 age, avocation and income of the claimant and the

medical expenses are denied. It was pleaded that the

accident was due to the rash and negligent riding of the

vehicle by the claimant himself. It was further pleaded

that the driver of the offending vehicle did not have valid

driving licence as on the date of the accident. It was

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further pleaded that the liability is subject to terms and

conditions of the policy. It was further pleaded that the

quantum of compensation claimed by the claimant is

exorbitant. Hence, he sought for dismissal of the 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 PW1,

Dr.S.A.Somashekara as PW4 and other two witnesses as

PW2 and PW3 and got exhibited documents namely Ex.P1

to Ex.P21. On behalf of the respondents, neither any

witness was examined nor got exhibited documents. 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.7,87,000/- along with interest at the

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rate of 9% p.a. and directed the Insurance Company to

deposit the compensation amount along with interest.

Being aggrieved, this appeal has been filed.

6. The learned counsel for the claimant has raised

the following contentions:

(i) Firstly, even though the claimant claims that he

was earning Rs.30,000/- per month by working as a driver

and produced the driving licence, but the Tribunal has

taken the notional income as only Rs.12,000/- per month.

(ii) Secondly, PW-4, the doctor has stated in his

evidence that the claimant has suffered disability of 52%

to right lower limb and 26% to whole body. But the

Tribunal has erred in taking the whole body disability at

only 18%.

(iii) Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as inpatient for

a period of 21 days. Even after discharge from the

hospital, he was not in a position to discharge his regular

work. He suffered lot of pain during treatment and he has

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to suffer the disability and unhappiness throughout his life.

Considering the same, the compensation granted 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 the following contentions:

(i) Firstly, even though the claimant claims that he

was earning Rs.30,000/- per month by working as a driver

and produced driving licence, he has not produced any

other document like bank statement to establish his

income. Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

(ii) Secondly, PW-4, the doctor has stated in his

evidence that the claimant has suffered disability of 52%

to left lower limb and 26% to whole body. The Tribunal,

considering the injuries sustained by the claimant, has

rightly assessed the whole body disability at 18%.

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(iii) Thirdly, the injuries suffered by the claimant are

minor in nature. He was inpatient for only 21 days.

Considering the evidence of the doctor and the injuries

suffered by the claimant, the overall compensation

awarded by the Tribunal is just and reasonable.

(iv) Fourthly, in view of the Division Bench decision

of this Court in the case of MS.JOYEETA BOSE AND

OTHERS vs. VENKATESHAN.V AND OTHERS (MFA

5896/2018 and connected matters disposed of on

24.8.2020), the interest granted by the Tribunal at the

rate of 9% p.a. is on the higher side and the same has to

be reduced to 6% p.a. Hence, he sought for dismissal of

the appeal.

8. Heard the learned counsel for the parties.

Perused the judgment and award.

9. It is not in dispute that the claimant suffered

injuries in the accident occurred on 21.05.2019 due to

rash and negligent driving of the Eicher vehicle bearing

registration No.KA-07/A-7267 by its driver.

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10. The claimant has not produced any evidence with

regard to his income. Therefore, the notional income has

to be assessed as per the guidelines issued by the

Karnataka State Legal Services Authority. Since the

accident has taken place in the year 2019, the notional

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

accident the claimant has suffered right proximal tibial

shaft lateral condyle fracture, right femur shaft fracture

and other injuries. The claimant was inpatient for 21 days

PW-4, the doctor has stated in his evidence that the

claimant has suffered disability of 52% to right lower limb

and 26% to whole body. Taking into consideration the

deposition of the doctor, PW-4 and injuries suffered by the

claimant, the Tribunal has rightly assessed the whole body

disability at 18%. The claimant was aged about 29 years

at the time of the accident and multiplier applicable to his

age group is '17'. Thus, the claimant is entitled for

compensation of Rs.5,14,080/- (Rs.14,000*12*17*18%)

on account of 'loss of future income'. Due to the accident,

the claimant has suffered grievous injuries, he has

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suffered lot of pain during treatment and he has to suffer

with the disability and unhappiness throughout his life.

Considering the same, I am inclined to enhance the

compensation awarded by the Tribunal under the head of

'loss of amenities' from Rs.25,000/- to Rs.40,000/,

'nourishing food and miscellaneous expenses' from

Rs.20,000/- to Rs.28,000/-. The claimant is also entitled

to 'loss of income during laid-up period' for a period of

three months, i.e., Rs.42,000/- (Rs.14,000*3). The

compensation awarded by the Tribunal under other heads

is just and reasonable.

11. 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                      75,000          75,000

 Medical expenses                       1,89,000        1,89,000

 Food, nourishment,                       20,000          28,000
 conveyance and
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  attendant charges

  Loss of income during                  12,000         42,000
  laid up period

  Loss of amenities                      25,000         40,000

  Loss of future income                4,41,000       5,14,080

  Future medical expenses                25,000         25,000

                  Total                7,87,000      9,13,080

12. In view of the above, I pass the following order:

(i) The appeal is allowed in part.

(ii) The judgment of the claims Tribunal is modified.

The claimant is entitled to a total compensation of

Rs.9,13,080/- in place of Rs.7,87,000/- awarded by the

Tribunal.

(iii) 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 excluding interest for the compensation

awarded under the head of 'future medical expenses'.