Karnataka High Court

Narasimhaiah @ Narasimhappa vs Pathaiah on 8 December, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                           NC: 2023:KHC:44612
                                                        MFA No. 536 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 8TH DAY OF DECEMBER, 2023

                                           BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                    MISCELLANEOUS FIRST APPEAL NO. 536 OF 2022 (MV)
                   BETWEEN:

                   NARASIMHAIAH @ NARASIMHAPPA
                   S/O. LATE. HANUMAIAH
                   R/AT KODAGADALA, KODAGADALA POST
                   PURUVARA HOBLI, MADHUGIRI TALUK
                   TUMKUR DISTRICT
                                                                 ...APPELLANT
                   (BY SRI. RANGEGOWDA N R.,ADVOCATE)

                   AND:

                   1.    PATHAIAH
                         S/O. LINGAPPA
                         AGE MAJOR
                         R/AT JEEVAGONDANAHALLI
                         RANTAVALALU POST
Digitally signed         DODDERI HOBLI
by
DHANALAKSHMI             MADHUGIRI TALUK
MURTHY
Location: High
                         TUMKUR DISTRICT.
Court of
Karnataka
                   2.    THE MANAGER
                         THE HDFC ERGO GENERAL
                         INSURANCE CO LTD
                         NO. 05, 2ND FLOOR
                         SHANKARANARAYANA BUILDING
                         MG ROAD, BANGALORE 560001
                                                              ...RESPONDENTS
                   (BY SRI.B. PRADEEP., ADVOCATE FOR R2:
                   NOTICE TO R2 IS DISPENSED WITH)
                        THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
                   AGAINST THEJUDGMENT AND AWARD DATED:17.12.2021 IN
                            -2-
                                       NC: 2023:KHC:44612
                                      MFA No. 536 of 2022




MVC NO.2078/2019 ON THE FILE OF THE XVI ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT,
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

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 17.12.2021 passed by MACT, Bangalore in MVC

No.2078/2019.

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

stated are that on 26.3.2019 when the claimant was

proceeding as a pillion rider in TVS Heavy Duty bearing

registration No.KA-64-Q-9635 and his son being the rider,

on Singaragondanahalli Village near bus stand, Puruvara

Hobli, at that time, rider of the said TVS heavy duty rode

the same at a high speed and in a rash and negligent

manner, dashed to the vehicle of the claimant. As a result

NC: 2023:KHC:44612

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. 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

and Dr.Nagaraj.B.N. was examined as PW-2 and examined

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one more witness as PW-3 and got exhibited documents

namely Ex.P1 to Ex.P17. On behalf of the respondents,

two witnesses were examined as RWs-1 and 2 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, as a result of

which, the claimant sustained injuries. The Tribunal

further held that the claimant is entitled to a compensation

of Rs.326,300/- 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 agricultural work and earning Rs.20,000/- per

month, but the Tribunal has taken the notional income as

merely as Rs.11,000/- p.m.

NC: 2023:KHC:44612

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 45% to particular limb

and 15% to whole body. But the Tribunal has taken the

whole body disability at 12%, 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 4 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.

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

NC: 2023:KHC:44612

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 12%.

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.

NC: 2023:KHC:44612

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 26.03.2019

due to rash and negligent driving of the offending vehicle

by its driver.

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 2019, the notional

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

11. As per wound certificate, the claimant has sustained

Type II compound fracture both bones lower third right leg

and multiple abrasions and CLW over right knee and leg.

The doctor in his evidence has stated that the claimant has

NC: 2023:KHC:44612

suffered disability of 45% to particular limb and 15% to

whole body. Therefore, taking into consideration the

deposition of the doctor and injuries mentioned in the

wound certificate, the whole body disability can be taken

at 15%. The claimant is aged about 55 years at the time

of the accident and multiplier applicable to his age group

is '11'. Thus, the claimant is entitled for compensation of

Rs.277,200/- (Rs.14000*12*11*15%) 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 2

months. Therefore, the claimant is entitled for

compensation of Rs.28,000/- (Rs.14,000*2 months)

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

13. The claimant was treated as inpatient for more than

4 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

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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.25,000/- to Rs.40,000/-

and under the head of 'loss of amenities' from Rs.20,000/-

to Rs.40,000/-.

14. The doctor in his evidence has stated that the

claimant requires about Rs.60,000/- for removal of

implants. But the claimant has not produced any

estimation of future surgery. Considering the nature of

injuries and evidence of doctor, I am inclined to enhance

the compensation awarded by the Tribunal under the head

of 'future medical expenses' from Rs.10,000/- to

Rs.20,000/-.

15. Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

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NC: 2023:KHC:44612

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                    25,000          40,000

 Medical expenses                       77,000          77,000

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

 Loss of income during                  10,000          28,000
 laid up period

 Loss of amenities                      20,000          40,000

 Loss of future income                 174,240         277,200

 Future medical expenses                10,000          20,000

                 Total                326,240         492,200

17. In the result, the following order is passed: