Karnataka High Court

Sri G Raj Kumar @ Raj Kumar Ganapathi vs M/S United India Insurance Co. Ltd on 7 December, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                          NC: 2023:KHC:44419
                                                        MFA No. 939 of 2021




                        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. 939 OF 2021 (MV)
                   BETWEEN:

                   SRI G RAJ KUMAR
                   @ RAJ KUMAR GANAPATHI
                   AGED ABOUT 26 YEARS
                   R/AT NO.12-380, R G COLONY
                   RAJIV NAGAR, TIRUPATI CHITTOR
                   CHITTOR, ANDHRA PRADESH PIN-517501.
                                                                ...APPELLANT
                   (BY SRI. GURUDEV PRASAD K T., ADVOCATE)

                   AND:

                   1.    M/S UNITED INDIA INSURANCE CO. LTD
                         MOTOR CLAIMS HUB
                         NO.18, 6TH FLOOR
                         NEAR KRUSHI BHAVAN
Digitally signed
                         HUDSON CIRCLE
by
DHANALAKSHMI
                         BENGALURU-560001
MURTHY                   BY ITS MANAGER.
Location: High
Court of
Karnataka
                   2.    MRS SHASHIKALA M S
                         W/O MADHU M K
                         NO.17, RANGAPPA BUILDING
                         11TH CORSS, YAMALUR
                         BENGALURU-560037.
                                                              ...RESPONDENTS
                   (BY SMT. MANJULA N TEJASWI., ADVOCATE FOR R1:
                   NOTICE TO R2 IS DISPENSED WITH V/O DATED: 04.07.2022)
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                                           NC: 2023:KHC:44419
                                          MFA No. 939 of 2021




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED:04.11.2019
PASSED IN MVC NO.1942/2019 ON THE FILE OF THE XVII
ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER,
MACT, BENGALURU (SCCH-21), PARTLY ALLOWING THE CLAIM
PETITION FOR 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 04.11.2019 passed by the XVII Addl.

Judge, Court of Small Causes & Member, MACT, Mayo Hall

Unit, Bengaluru (SCCH-21) (for short, 'the Tribunal') in

MVC No.1942/2019.

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

stated are that on 05.03.2019 at about 1.30 p.m., the

claimant was proceeding on motorcycle bearing

registration No.AP-03/CE-0648 near Bhattarahalli,

Whitecity Layout, Seegehalli road junction, Bengaluru. At

that time, a car bearing registration No.KA-03/AC-0866

being driven by its driver at a high speed and in a rash

NC: 2023:KHC:44419

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.

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 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

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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. 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.Nagaraj as PW2 and got exhibited documents

namely Ex.P1 to Ex.P12. On behalf of the respondents, no

witness was examined and got exhibited document namely

Ex.R1. 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.4,76,250/- along with

interest at the 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.

NC: 2023:KHC:44419

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, but the Tribunal has

taken the notional income as only Rs.10,000/- per month.

(ii) Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of 43%

to right lower limb and 15% to whole body. But the

Tribunal has erred in taking the whole body disability at

only 12%.

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

sustained grievous injuries. He was treated as inpatient for

a period of 3 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

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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, he has not produced

any documents to establish his income. Therefore, the

Tribunal has rightly assessed the income of the claimant

notionally.

(ii) Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of 43%

to left lower limb and 15% to whole body. The Tribunal

considering the injuries sustained by the claimant, has

rightly assessed the whole body disability at 12%.

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

minor in nature. He was inpatient for only 3 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.

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(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 05.03.2019 due to

rash and negligent driving of the car bearing registration

No.KA-03/AC-0866 by its driver.

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

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

accident the claimant has suffered open fracture of right

tibia and other injuries. The claimant was inpatient for 3

days. PW-2, the doctor has stated in his evidence that the

claimant has suffered disability of 43% to right lower limb

and 15% 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 14%. The claimant was aged about 23 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.4,23,360/- (Rs.14,000*12*18*14%)

on account of 'loss of future 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.30,000/- to Rs.40,000/- and

in view of rise in the monthly income from Rs.10,000/- to

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Rs.14,000/- the claimant is entitled to compensation of

Rs.42,000/- (Rs.14,000*3) in place of Rs.30,000/-

awarded by the Tribunal under the head 'loss of income

during laid-up period'. 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                   30,000            40,000

 Medical expenses                      92,050            92,050

 Food, nourishment,                     5,000             5,000
 conveyance and
 attendant charges

 Loss of income during                 30,000            42,000
 laid up period

 Loss of amenities                     35,000            35,000

 Loss of future income                2,59,200         4,23,360

 Future medical expenses               25,000            25,000

                Total             4,76,250             6,62,410
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                                           NC: 2023:KHC:44419

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.6,62,410/- in place of Rs.4,76,250/- 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