Karnataka High Court

Sri Kalleshachar vs Sri Kiran B N on 7 December, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                       NC: 2023:KHC:44306
                                                     MFA No. 1893 of 2023




                        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. 1893 OF 2023 (MV)


                   BETWEEN:

                   SRI KALLESHACHAR
                   AGED ABOUT 63 YEARS
                   S/O LATE GANGADHARACHAR
                   @GANGADHAR
                   R/AT SARPANAHALLI VILLAGE
                   UDDEVORANAHALLI POST
                   LAKYA HOBLI, CHIKKAMAGALURU TALUK
                   CHIKKAMAGALURU-577101
                                                             ...APPELLANT
                   (BY SRI. VENKATE GOWDA K.,ADVOCATE)

                   AND:
Digitally signed
by
DHANALAKSHMI       1.    SRI KIRAN B N
MURTHY                   S/O NINGE GOWDA
Location: High           AGED ABOUT 26 YEARS
Court of
Karnataka                R/O BILEKALLAHALI VILLAGE
                         UDDEBORANAHALLI POST
                         LAKYA HOBLI, CHIKKAMAGALURU TALUK
                         CHIKKAMAGALURU-577101.

                   2.    SRI THIMMARAJU L N
                         S/O NAGARAJU
                         AGED ABOUT 27 YEARS
                         R/O LAKSHMIPURA
                         YAGATI VILLAGE AND POST
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                                          NC: 2023:KHC:44306
                                      MFA No. 1893 of 2023




      KADUR TALUK
      CHIKKAMAGALURU-577101.

3.    THE MANAGER
      UNITED INDIA INSURANCE
      COMPANY LIMITED
      CRESCENT COURT
      K M ROAD, CHIKKAMAGALURU-577101.

4.    THE MANAGER
      UNITED INDIA INSURANCE COMPANY LIMITED
      CRESCENT COURT, K M ROAD
      CHIKKAMAGALURU-577101.
                                     ...RESPONDENTS
(BY SRI.RAVISH BENNEI., ADVOCATE FOR R3 & R4
NOTICE TO R1 & R2 IS DISPENSED WITH
V/O DATED: 13.07.2023)


      THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT    AGAINST   THE    JUDGMENT    AND    AWARD      DATED
01.12.2022   PASSED IN MVC NO.268/2021 ON THE FILE
OF THE     PRL. SENIOR CIVIL JUDGE AND CJM, MEMBER,
MACT,     CHIKKAMAGALURU,        ALLOWING      THE     CLAIM
PETITION     FOR       COMPENSATION        AND       SEEKING
ENHANCEMENT OF COMPENSATION.

      THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:
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                                            NC: 2023:KHC:44306
                                        MFA No. 1893 of 2023




                        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 01.12.2022 passed by MACT, Chikkamagaluru in

MVC No.268/2021.

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

stated are that on 21.12.2020 when the claimant was

proceeding in his TVS motorcycle bearing Registration

No.KA-66-H-8013 as a pillion rider at Bilekallilli Village, the

rider of the Hero Splender motorcycle bearing Registration

KA-66-E-0744, rode the same in a rash and negligent

manner with excessive speed and dashed against

motorbike in which the claimant was proceeding. 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

NC: 2023:KHC:44306

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 Nos.1, 3 and 4

appeared through counsel and only respondent No.3 and 4

filed written statements 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 claimant is

exorbitant. Hence, they sought for dismissal of the

petition.

The respondent No.2 did not appear before the

Tribunal inspite of service of notice and was placed ex-

parte.

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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

and Dr.Venkatesh B. S. was examined as PW-2 and got

exhibited documents namely Ex.P1 to Ex.P28. On behalf of

the respondents, one witness was examined as RW-1 and

got exhibited a 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

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.2,85,175/- 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, the present appeal has been filed.

6. The learned counsel for the claimant has raised the

following contentions:

NC: 2023:KHC:44306

a) Firstly, even though the claimant claims that he was

doing agricultural work and earning Rs.20,000/- per

month, but the Tribunal has taken the notional income as

merely as Rs.9,000/- p.m.

b) Secondly, the claimant has examined the doctor as

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

claimant has suffered disability of 28% to particular limb.

But the Tribunal has taken the whole body disability at

9.3%, 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 9 days. Even after discharge from the 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.

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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.20,000/- 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, the Tribunal considering the injuries

sustained by the claimant and evidence of the doctor, has

rightly assessed the whole body disability at 9.3%.

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

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connected matters disposed of on 24.8.2020), the

rate of interest awarded by the Tribunal at 9% 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.

9. It is not in dispute that the claimant has sustained

injuries in the road traffic accident occurred on 21.12.2020

due to rash and negligent riding of the offending vehicle

by its rider.

10. The claimant claims that he was earning Rs.20,000/-

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 2020, the notional

income has to be taken at Rs.14,500/- p.m.

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11. As per wound certificate, the claimant has sustained

fracture of right tibia and fibula. The doctor in his evidence

has stated that the claimant has suffered disability of

28% to particular limb. Therefore, taking into

consideration the deposition of the doctor and injuries

mentioned in the wound certificate, the Tribunal has

rightly taken the whole body disability at 9.3%. The

claimant is aged about 62 years at the time of the

accident and multiplier applicable to his age group is '7'.

Thus, the claimant is entitled for compensation of

Rs.113,274/- (Rs.14,500*12*7*9.3%) 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.43,500/- (Rs.14,500*3 months)

under the head 'loss of income during laid up period'.

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NC: 2023:KHC:44306

13. The claimant was treated as inpatient for more than

9 days in the hospital and thereafter, has received further

treatment. 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.5,000/- to Rs.35,000/- and

under the head of 'loss of amenities' from Rs.5,000/- to

Rs.20,000/-.

14. Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

15. Thus, the claimant is entitled to the following

compensation:

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                                                NC: 2023:KHC:44306





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

     Pain and sufferings                   5,000         35,000

     Medical expenses                   1,44,867       1,44,867

     Food, nourishment,                   30,000         30,000
     conveyance and
     attendant charges

     Loss of income during                30,000         43,500
     laid up period

     Loss of amenities                     5,000         20,000

     Loss of future income                70,308       1,13,274

                   Total                2,85,175      3,86,641