Karnataka High Court

Prashanta Kumar Sahu vs Shashikanta Patra on 6 December, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                          NC: 2023:KHC:44174
                                                        MFA No. 3749 of 2022




                        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. 3749 OF 2022 (MV)
                   BETWEEN:

                   PRASHANTA KUMAR SAHU
                   S/O BHAJAKISHORE SAHU
                   AGED ABOUT 21 YEARS
                   R/AT NEAR SHANIMAHATAMA TEMPLE
                   YADAVANAHALLI, ANEKAL TALUK
                   BENGALURU URBAN
                   NATIVE ADDRESS
                   JIRINA ADIA,BANT
                   BHADRAK, ODISHA
                                                                 ...APPELLANT
                   (BY SRI. JAGADEESH GUNDAPPA, ADVOCATE FOR
                   SRI. SREENIVASAIAH A.,ADVOCATE)
                   AND:


Digitally signed   1.    SHASHIKANTA PATRA
by                       S/O SUBAS PATRA
DHANALAKSHMI             AT-ANADHUVA, PO ADALPANKA
MURTHY
Location: High           VIA BONTH, BHADRAK, ORISSA - 756 114.
Court of
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
                   V/O DATED: 06.12.2023)
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                                          NC: 2023:KHC:44174
                                       MFA No. 3749 of 2022




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 16.12.2021
PASSED IN MVC NO. 7607/2019 ON THE FILE OF THE MEMBER,
MACT, XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
BENGALURU CITY (SCCH-4),   PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

    THIS APPEAL, COMING ON FOR ORDERS, 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 16.12.2021 passed by the Motor

Vehicles Accident Claims Tribunal, Bengaluru City (for

short, 'the Tribunal') in MVC No.7607/2019.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 15.11.2019 at about 8.30 p.m.

the claimant was proceeding on motorcycle bearing

registration No.OD-22/L-0760 near Yadavanahalli Gate on

Bengaluru NH-7. At that time, the rider of the said

motorcycle rode the same at a high speed and in a rash

and negligent manner, dashed to the person standing on

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the side of the road. As a result of the aforesaid accident,

the claimant fell down, 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

riding of the offending vehicle by its rider.

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

driver of the offending vehicle did not have valid driving

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

NC: 2023:KHC:44174

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 PW2

and Dr.S.A.Somashekara as PW4 and got exhibited

documents namely Ex.P1 to Ex.P20. 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 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.11,40,211/- 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, this appeal has been filed.

NC: 2023:KHC:44174

6. The learned counsel for the claimant has raised

the following contentions:

(i) Firstly, PW-4, the doctor has stated in his

evidence that the claimant has suffered disability of 70%

to left lower limb and 35% to whole body. But the Tribunal

has erred in taking the whole body disability at only 24%.

(ii) Secondly, due to the accident, the claimant has

sustained grievous injuries. He was treated as inpatient for

a period of 10 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

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.

(iii) Thirdly, considering the evidence of the doctor

and the injuries suffered by the claimant, the

compensation awarded by the Tribunal under the head

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'future medical expenses' is also 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, PW-4, the doctor has stated in his

evidence that the claimant has suffered disability of 70%

to left lower limb and 35% to whole body. The Tribunal

rightly assessed the whole body disability at 1/3rd of limb

disability, i.e., 24%.

(ii) Secondly, the injuries suffered by the claimant

are minor in nature. He was inpatient for only 10 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.

(iii) Considering the evidence of the doctor and the

injuries suffered by the claimant, the compensation

awarded by the Tribunal under the head 'future medical

expenses' is just and reasonable. Hence, he sought for

dismissal of the appeal.

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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 15.11.2019 due to

rash and negligent riding of the motorcycle bearing

registration No.OD-22/L-0760 by its rider.

10. Due to the accident the claimant has suffered left

intratrochonteric fracture with distal femur - sepsis with

DIC and other multiple injuries. The claimant was inpatient

for 10 days. PW-4, the doctor has stated in his evidence

that the claimant has suffered disability of 70% to left

lower limb and 35% to whole body. Therefore, taking into

consideration the deposition of the doctor, considering the

limb disability, the Tribunal has rightly assessed the whole

body disability at 24%. The Tribunal has rightly assessed

the notional income at Rs.14,000/-. The compensation

awarded by the Tribunal under the head 'loss of

dependency' at Rs.7,25,760/- is just and reasonable. Due

to the accident, the claimant has suffered grievous

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injuries, he has 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 'pain and sufferings' from Rs.50,000/- to

Rs.65,000/-, 'loss of income during laid-up period and

attendant charges' from Rs.18,640/- to Rs.50,000/- and

'loss of amenities' from Rs.10,000/- to Rs.50,000/-. The

claimant has examined the doctor, who in his testimony

stated that the claimant requires to undergo surgery for

removal of implants on both sites and it costs around

Rs.1,50,000/-. Hence, I am inclined to enhance the sum

awarded by the Tribunal under the head of 'future medical

expenses' from Rs.50,000/- to Rs.75,000/-. The

compensation awarded by the Tribunal under other heads

is just and reasonable.

11. Thus, the claimant is entitled to the following

compensation:

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As awarded As awarded by the by this Compensation under Tribunal Court different Heads (Rs.) (Rs.)

Pain and sufferings 50,000 65,000

Medical expenses 2,75,811 2,75,811

conveyance charges 10,000 10,000

Loss of income during 18,640 50,000 laid up period and attendant charges

Food nourishment, 10,000 50,000 attendant charges and loss of amenities

Loss of future income 7,25,760 7,25,760

Future medical expenses 50,000 75,000

Total 11,40,211 12,51,571

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.12,51,571/- in place of Rs.11,40,211/- awarded by the

Tribunal.

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NC: 2023:KHC:44174

(iii) 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