Karnataka High Court
Dhanaraja vs Sri Manjunatha S on 7 December, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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MFA No. 332 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 332 OF 2020 (MV)
BETWEEN:
DHANARAJA
S/O GOPAL
NOW AGED ABOUT 18 YEARS
R/AT MALONAGATHIHALLI
T. BEGUR POST, KASABA HOBLI
NELAMANGALA TALUK
BENGALURU RURAL DISTRICT.
...APPELLANT
(BY SRI. RANGEGOWDA N R.,ADVOCATE)
AND:
1. SRI MANJUNATHA S
S/O SHIVASHANKAR
AGED MAJOR
Digitally signed R/AT NO.86, MALONGATHIHALLI
by
DHANALAKSHMI T.BEGUR POST, B.H.ROAD
MURTHY
Location: High NELAMANGALAL TOWN
Court of BENGALURU RURAL DISTRICT 562123.
Karnataka
2. THE MANAGER
THE BAJAJ ALLIANZ GENERAL
INSURANCE COMPANY LTD.,
GOLDEN HEIGHTS, 4TH FLOOR
NO.1/2, 59TH CROSS, 4TH M BLOCK
RAJAJINAGAR, BENGALURU-560010.
...RESPONDENTS
(BY SRI.RAVI S SAMPRATHI., ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 07.12.2023)
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MFA No. 332 of 2020
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 22.07.2019
PASSED IN MVC NO. 5730/2017 ON THE FILE OF THE
MEMBER, MACT, XVI ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL,
BENGALURU CITY (SCCH-14), 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
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 22.07.2019 passed by MACT, Bengaluru in MVC
No.5730/2017.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 25.08.2017 at about 6.00 p.m., when
the claimant was traveling as a pillion rider in Bajaj Pulsar
Motorcycle bearing Registration No.KA-52-K-8442 on
T.Begur-Thyamagondlu road, Abhaya Shaneshwara
Temple opposite, Byranahalli road, Kasaba Hobli,
Nelamangala Taluk, Bengaluru Rural District, at that time,
the rider of the said BajajPulsar Motorcycle rode the same
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in rashly, recklessly and negligently with high speed and
suddenly applied the brake and caused the accident. 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
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. It was
pleaded that the petition itself is false and frivolous in the
eye of law. The age, avocation and income of the claimant
and the medical expenses are denied. It was further
pleaded that the quantum of compensation claimed by the
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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 PW-
1, another witness was examined as PW-2 and Dr.Shailesh
A. V. Rao was examined as PW-3 and got exhibited
documents namely Ex.P1 to Ex.P21. On behalf of the
respondents, one witness was examined as RW-1 and got
exhibited documents namely Ex.R1 and Ex.R2. 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
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Rs.6,93,000/- along with interest at the rate of 7% 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 part time work and earning Rs.15,000/- per month,
but the Tribunal has taken the notional income as merely
as Rs.7,000/- 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 intellectual disability of 50%, speech
disability moderate at 25% and total disability of 61%. But
the Tribunal has taken the whole body disability at 15%,
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 10 days. Even after discharge from the
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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.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, even though the claimant has suffered
intellectual disability of 50%, speech disability moderate at
25% and total disability of 61%, the whole body disability
of 15% assessed by the Tribunal is on the higher side. The
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claimant himself has appeared before the Tribunal and
entered the witness box and has given evidence.
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 7% 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.
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9. It is not in dispute that the claimant has sustained
injuries in the road traffic accident occurred on 25.8.2017
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 2017, the notional
income has to be taken at Rs.11,000/- p.m.
11. As per wound certificate, the claimant has sustained
severe head injury, diffuse axonal injury. The doctor in his
evidence has stated that the claimant has suffered
intellectual disability of 50%, speech disability moderate at
25% and total disability of 61%. Therefore, taking into
consideration the deposition of the doctor and injuries
mentioned in the wound certificate, I am of the opinion
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that the whole body disability has to be taken 30%. The
claimant is aged about 18 years at the time of the
accident and multiplier applicable to his age group is '18'.
Thus, the claimant is entitled for compensation of
Rs.712,800/- (Rs.11,000*12*18*30%) 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 3
months. Therefore, the claimant is entitled for
compensation of Rs.33,000/- (Rs.11,000*3 months)
under the head 'loss of income during laid up period'.
13. The claimant was treated as inpatient for more than
10 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.15,000/- to Rs.25,000/-.
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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.30,000/- to Rs.45,000/-
and under the head of 'loss of amenities' from Rs.40,000/-
to Rs.45,000/-.
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 30,000 45,000
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Medical expenses 3,60,000 3,60,000
Food, nourishment, 15,000 25,000
conveyance and
attendant charges
Loss of income during 21,000 33,000
laid up period
Loss of amenities 40,000 45,000
Loss of future income 2,26,800 7,12,800
Total 6,92,800 12,20,800
Rounded off 6,93,000 12,21,000
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.12,21,000/-.
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.
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e) 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.
Sd/-
JUDGE
DM
