Karnataka High Court
Sri. Shivakumar N vs Sri. Kantharaju R on 2 November, 2023
Bench: H T Prasad
-1-
NC: 2023:KHC:38988
MFA No. 2703 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 2703 OF 2023 (MV)
BETWEEN:
SRI. SHIVAKUMAR N
S/O NAGARAJU
NOW AGED ABOUT 22 YEARS
R/AT VADDARAPALYA VILLAGE
HAMPAPURA HOBLI
HD KOTE TALUK, MYSORE 571125. ...APPELLANT
(BY SRI. TEJAS N., ADVOCATE)
AND:
1. SRI. KANTHARAJU R
S/O RAMU G, MAJOR
R/AT NO 370, ASHRYA, 8TH MAIN
8TH CROSS, PADMANABHANAGARA
Digitally signed
BANGALORE-560070.
by
DHANALAKSHMI 2. THE MANAGER
MURTHY
HDFC ERGO
Location: High
Court of NO 25/1, SHANKANARAYANA BUILDING
Karnataka BUILDING NO 2, MG ROAD
BANGALORE-560001. ...RESPONDENTS
(BY SRI.MALLIKARJUNA REDDY N.A., ADVOCATE FOR
SRI. PRADEEP B., ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:06.02.2023
PASSED IN MVC NO.839/2021 ON THE FILE OF THE 23RD
ADDITIONAL SMALL CAUSES JUDGE, MACT, BENGALURU,
-2-
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MFA No. 2703 of 2023
JUDGE, ACMM, COURT OF SMALL CAUSES, BENGALURU,
SCCH-25, 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 Motor Vehicles
Act, 1988 (hereinafter referred to as 'the Act') has been
filed by the claimant being aggrieved by the judgment and
award dated 06.02.2023 passed by the Motor Accident
Claims Tribunal Court of Small Causes, Bengaluru
(hereinafter referred to as 'the Tribunal') in MVC
No.839/2021.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 09.12.2020 at about 5.00 p.m.
the claimant was proceeding in a two wheeler bearing
registration No.KA-09/HL-5660. When he reached near
Petrol Bunk, Malavalli Maddur Road, T.Kagepura Village,
Malavalli Taluk, at that time, a car bearing registration
No.KA-51/MK-5562 being driven by its driver at a high
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MFA No. 2703 of 2023
speed and in a rash and negligent manner, dashed to the
vehicle in which 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 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 filed separate written
statements 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 petition itself is false and frivolous in the
eye of law. It was further 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 quantum
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MFA No. 2703 of 2023
of compensation claimed by the claimant is exorbitant.
Hence, they 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 B.N. was examined as PW2 and got
exhibited documents namely Ex.P1 to Ex.P13. On behalf of
the respondents, one witness was examined as RW1 and
got exhibited one document as 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.5,81,600/- along with interest at the rate of 6% p.a.
and directed the Insurance Company to deposit the
compensation amount along with interest. Being not
satisfied, this appeal has been filed.
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MFA No. 2703 of 2023
6. The learned counsel for the claimant has raised
the following contentions:
(i) Firstly, due to the accident, the claimant has
sustained grievous injuries. He has examined the doctor as
PW2, who in his evidence has deposed that the claimant
has suffered disability of 71% to the limb and 23% to
whole body. But the disability assessed by the Tribunal at
13% is on the lower side.
(iii) Secondly, the claimant was treated as inpatient
for a period of 26 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 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 'pain and sufferings', 'loss
of amenities' and other incidental expenses are on the
lower side. Hence, he sought for enhancement of
compensation.
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MFA No. 2703 of 2023
7. On the other hand, the learned counsel appearing
for the Insurance Company has raised the following
contentions:
(i) Firstly, even though the doctor has deposed that
the claimant has suffered 71% disability, in his cross-
examination he has admitted that the fractures are united.
Considering the injuries suffered by the claimant and the
evidence of the doctor, the Tribunal has rightly assessed
the whole body disability at 13%.
(ii) Secondly, considering the injuries sustained by
the claimant and considering the age and avocation of the
claimant, the overall compensation awarded by the
Tribunal is on the higher side. Hence, he sought for
dismissal of the appeal.
8. Heard the learned counsel for the parties.
Perused the judgment and award and the original records.
9. It is not in dispute that the claimant has
sustained injuries in the road traffic accident occurred on
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MFA No. 2703 of 2023
09.12.2020 due to rash and negligent driving of the car
bearing registration No.KA-09/HL-5660.
10. Due to the accident the claimant has suffered
swelling deformity abnormal mobility over right elbow,
right forearm, right hand haematoma over dorsal aspect of
right hand tenderness, tenderness over right hip and
glueteal region and swelling tenderness punctured wound
bleeding over dorsal aspect of right foot. The doctor in
his evidence has deposed that the claimant has suffered
71% limb disability. Considering the evidence of the doctor
and the injuries suffered by the claimant, the whole body
disability has to be assessed at 23%. The Tribunal has
rightly assessed the notional income as Rs.14,500/- and
has rightly applied the multiplier of '18'. Thus, the
claimant is entitled for compensation of Rs.7,20,360/-
(Rs.14,500*12*18*23%) on account of 'loss of future
income'.
11. Due to the accident, the claimant has suffered
grievous injuries. He was inpatient for a period of 26
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MFA No. 2703 of 2023
days. 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 'loss of amenities' from Rs.20,000/- to
Rs.40,000/-, 'loss of income during laid-up period' for a
period of three months, i.e., Rs.43,500/-
(Rs.14,500*3). Considering the injuries and the evidence
of the parties, the compensation awarded by the Tribunal
on the other heads is just and reasonable.
12. 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 50,000 50,000
Medical expenses 40,365 40,365
Food, nourishment, 20,000 20,000
conveyance and
attendant charges
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MFA No. 2703 of 2023
Loss of income during 29,000 43,500
laid up period
Loss of amenities 20,000 40,000
Loss of future income 4,07,160 7,20,360
Future medical expenses 15,000 15,000
Total 5,81,525 9,29,225
Rounded off to 5,81,600
13. In the result, 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.9,29,225/- as against
Rs.5,81,600/- awarded by the Tribunal.
(iii) The Insurance Company is directed to
deposit the compensation amount along with
interest @ 6% p.a. from the date of filing of the
claim petition till the date of realization, within
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a period of six weeks from the date of receipt of
copy of this judgment.
Sd/-
JUDGE
CM
