Karnataka High Court

Charan. S. V vs Reliance Gen. Ins. Co. Ltd on 7 December, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

                                              -1-
                                                          NC: 2023:KHC:44431
                                                        MFA No. 5038 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. 5038 OF 2020 (MV)
                   BETWEEN:

                   CHARAN. S. V.
                   S/O VIJAYKUMAR S
                   AGED ABOUT 20 YEARS
                   R/AT NO.1/18, 3RD MAIN ROAD
                   3RD CROSS,MYSORE ROAD
                   PADARAYANAPURA, BENGALURU-560026
                                                                ...APPELLANT
                   (BY SRI. GURUDEV PRASAD K T.,ADVOCATE)

                   AND:

                   1.    RELIANCE GEN.INS.CO. LTD
                         TP CALIMS HUB NO.28
                         5TH FLOOR,CENTENARY BUILDING
                         EAST WING MG ROAD
Digitally signed
by                       BENGALURU-560001.
DHANALAKSHMI
MURTHY
                   2.    MR K IRFAN @ IRFAN K
Location: High
Court of                 S/O KHALANDAR K
Karnataka                R/AT MASJID ROAD
                         ATTIBELE VILLAGE AND POST
                         ANEKAL, BENGALURU-562107.
                                                              ...RESPONDENTS
                   (BY SRI.H.S.LINGARAJU., ADVOCATE FOR R1:
                   NOTICE TO R2 IS DISPENSED WITH
                   V/O DATED: 11.07.2022)
                        THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                   AGAINST THE JUDGMENT AND AWARD DATED: 01.02.2020,
                   PASSED IN MVC NO.2435/2019, ON THE FILE OF THE MEMBER,
                              -2-
                                          NC: 2023:KHC:44431
                                       MFA No. 5038 of 2020




MACT, XVI-ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
BENGALURU (SCCH-14),    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 01.02.2020 passed by the Motor

Vehicles Accident Claims Tribunal, Bangalore City, SCCH-

14 (for short, 'the Tribunal') in MVC No.2435/2019.

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

stated are that on 07.04.2019 at about 3.00 p.m. the

claimant was proceeding as a pillion rider on scooter

bearing registration No.KA-01/AE-5395 on M.N.K. road,

near Lalbagh West gate signal, Basavanagudi, Bengaluru.

At that time, a lorry bearing registration No.KA-01/AE-

5395 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

NC: 2023:KHC:44431

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

driving of the offending vehicle by its driver.

4. On service of notice, the respondent Nos.1 and

2 appeared through counsel and respondent No.1 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 rider of the scooter.

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 further pleaded that the liability is

subject to terms and conditions of the policy. It was

further pleaded that the quantum of compensation claimed

NC: 2023:KHC:44431

by the claimant is exorbitant. Hence, he sought for

dismissal of the petition.

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

and Dr.Chidanand K.J.C. as PW2 and got exhibited

documents namely Ex.P1 to Ex.P13. On behalf of the

respondents, two witnesses were examined as RW1 and

RW2 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

at 85% and contributory negligence of the claimant at

15%, as a result of which, the claimant sustained injuries.

The Tribunal further held that the claimant is entitled to a

compensation of Rs.3,01,400/- along with interest at the

rate of 7% p.a. and since the insured has violated the

policy conditions, directed the Insurance Company to

deposit 85% of the compensation amount, i.e.,

Rs.2,56,200/- along with interest with liberty to recover

NC: 2023:KHC:44431

the same from the insured. Being aggrieved, this appeal

has been filed.

6. The learned counsel for the claimant has raised

the following contentions:

(i) Firstly, at the time of the accident the claimant

was proceeding as a pillion rider. But the Tribunal erred

in holding that the claimant has also contributed 15% to

the accident. The finding of the Tribunal is contrary to the

materials available on record.

(ii) Secondly, even though the claimant claims that

he was earning Rs.20,000/- per month, but the Tribunal

has taken the notional income as only Rs.8,500/- per

month.

(iii) Thirdly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of 46%

to lower limb and 15.33% to whole body. But the Tribunal

has erred in taking the whole body disability at only 10%.

(iv) Fourthly, due to the accident, the claimant has

sustained grievous injuries. He was treated as inpatient for

NC: 2023:KHC:44431

a period of 16 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. 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, the rider of the scooter bearing

registration No.KA-01/AE-5395 was also negligent in

causing the accident. The Tribunal after considering the

evidence of the parties and the materials available on

record has rightly held that the claimant has contributed

15% to the accident. Therefore, there is no error in the

finding given by the Tribunal in respect of issue No.1.

(ii) Secondly, even though the claimant claims that

he was earning Rs.20,000/- per month, he has not

NC: 2023:KHC:44431

produced any documents to establish his income.

Therefore, the Tribunal has rightly assessed the income of

the claimant notionally.

(iii) Thirdly, even though PW-2, the doctor has stated

in his evidence that the claimant has suffered disability of

15.33% to whole body, since he was aged 19 years, there

is a chance that disability may come down in future.

Therefore, the Tribunal rightly assessed the whole body

disability at 10%.

(iv) Fourthly, the injuries suffered by the claimant

are minor in nature. He was inpatient for only 16 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.

(v) Fifthly, 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 7% p.a. is on the higher side and the same has to

NC: 2023:KHC:44431

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. The case of the claimant is that on 07.04.2019 at

about 3.00 p.m. the claimant was proceeding as a pillion

rider on scooter bearing registration No.KA-01/AE-5395 on

M.N.K. road, near Lalbagh West gate signal,

Basavanagudi, Bengaluru. At that time, a lorry bearing

registration No.KA-01/AE-5395 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 fell down, sustained

grievous injuries and was hospitalized. The specific case

of the claimant is that he was proceeding as a pillion rider.

The Tribunal erred in giving a finding that he has also

contributed 15% to the accident. This finding of the

Tribunal is contrary to the materials available on record.

Therefore, the said finding is unsustainable.

NC: 2023:KHC:44431

Re.quantum:

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 mild swelling of left leg,

ankle, altered pigmentation over the surgical scar mark,

thickening of both bones left leg and other injuries. The

claimant was inpatient for 16 days. PW-2, the doctor has

stated in his evidence that the claimant has suffered

disability of 46% to lower limb and 15.33% to whole body.

Therefore, taking into consideration the deposition of the

doctor, PW-2 and injuries suffered by the claimant, the

whole body disability is taken at 15%. The claimant was

aged about 19 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.4,53,600/-

(Rs.14,000*12*18*15%) on account of 'loss of future

- 10 -

NC: 2023:KHC:44431

income'. Due to the accident, the claimant has suffered

grievous 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.35,000/- to Rs.40,000/-, 'loss of amenities' from

Rs.30,000/- to Rs.40,000/-, 'loss of income during laid-up

period' for two months, i.e., Rs.28,000/- (Rs.14,000*2)

and 'Food, nourishment, conveyance and attendant

charges' from Rs.10,000/- to Rs.15,000/-. 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                     35,000           40,000
                              - 11 -
                                             NC: 2023:KHC:44431





  Medical expenses                       7,300          7,300

  Food, nourishment,                    10,000         15,000
  conveyance and
  attendant charges

  Loss of income during                 25,500         28,000
  laid up period

  Loss of amenities                     30,000         40,000

  Loss of future income               1,83,600       4,53,600

  Future medical expenses               10,000         10,000

                 Total                3,01,400      5,93,900

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.5,93,900/- in place of Rs.2,56,200/- 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

- 12 -

NC: 2023:KHC:44431