Karnataka High Court
Sri Punith U S vs Sri Narayana Poojari on 2 November, 2023
Bench: H T Prasad
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NC: 2023:KHC:38883
MFA No. 4937 of 2021
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. 4937 OF 2021 (MV)
BETWEEN:
SRI PUNITH U S
S/O U B SOMASHEKAR
AGED 26 YEARS
PRPRIETR OF SRI GURU TRADERS
UPPALLI, INDAVARA
R/O BANUPRAKASH SCHOOL
UPPALLI, INDAVAR PSOT
CHIKKAMAGALURU TALUK & DISTRICT-577101.
...APPELLANT
(BY SRI. GIRISH B BALADARE., ADVOCATE)
AND:
1. SRI NARAYANA POOJARI
S/O PUSHTA
Digitally signed AGED ABOUT 65 YEARS
by
DHANALAKSHMI R/O DEVI PRASAD HOUSE
MURTHY VASAVINAGARA, NIRGANA VILLGE
Location: High
Court of KARNATAKA TALUK &
Karnataka UDUPI DISTRICT-577101.
2. SMT MEENAKSHI
W/O VEERESH SUNGAGAR
AGED ABOUT 28 YEARS
R/O D O NO 201, PRASADNAGARA
BELAPU POST-574117.
3. THE BRANCH MANGER
THE UNITED INDIA INSURANCE CO LTD
P B NO 78, JEWEL PLAZA
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MFA No. 4937 of 2021
1ST FLOOR, MARUTHI VEETHIKA
UDUPI-576101
...RESPONDENTS
(BY SRI.ANOOP SEETHARAMA RAO., ADVOCATE FOR R3:
SRI. S.NAGARAJA, ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 24.08.2023)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:04.05.2021
PASSED IN MVC NO. 253/2019 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND MACT,
CHIKKAMAGALURU, 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 04.05.2021 passed by MACT, Chikkamagaluru in
MVC No.253/2019.
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MFA No. 4937 of 2021
2. Facts giving rise to the filing of the appeal briefly
stated are that on 06.10.2018 at about 10.00 p.m. when
the claimant was proceeding from Karkala to
Chikkamagalur in the Lorry bearing Registration No.KA-01-
D-2906 which belongs to the claimant and at that time,
since the said lorry break down, the same was parked at
left side near Nellikaru Grama, Pernodi Cross, Mangaluru
Taluk and hence, the owner of the lorry i.e., the claimant
get down from the lorry and tried to phone call to the
Mechanic. At that time, the driver of the Tractor bearing
Registration No.KA-20-D-7470 came with excessive speed
and also in a rash and negligent manner dashed to the
claimant who stood at road side. 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
charges, etc. It was further pleaded that the accident
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MFA No. 4937 of 2021
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.2 and 3
appeared through counsel and filed written statement 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.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.Shan Navaz was examined as PW-2 and got
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MFA No. 4937 of 2021
exhibited documents namely Ex.P1 to Ex.P34. On behalf
of the respondents, one witness was examined as RW-1
and got exhibited documents namely Ex.R1 and 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.11,35,170/- along with interest at the
rate of 8% p.a. (excluding the interest for future
operation) 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, the claimant has examined the doctor as
PW-2. The doctor in his evidence has stated that the
claimant has suffered disability of 31% to right upper limb
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MFA No. 4937 of 2021
and 27% to left upper limb. But the Tribunal has taken the
whole body disability at 9.67%, which is on the lower side.
b) Secondly, due to the accident, the claimant has
sustained grievous injuries. 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, the injuries suffered by the claimant are
minor in nature. The said disability assessed by the doctor
will not come in the way of his day to day work. The
claimant has not established that he has suffered loss due
to the disability. Therefore, the Tribunal considering the
injuries sustained by the claimant and evidence of the
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doctor, has rightly assessed the whole body disability at
9.67%.
b) 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.
c) 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 8% 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.
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MFA No. 4937 of 2021
9. It is not in dispute that the claimant has sustained
injuries in the road traffic accident occurred on 06.08.2018
due to rash and negligent driving of the offending vehicle
by its driver.
10. As per wound certificate, the claimant has sustained
fracture of right clavicle, fracture involving left humorous,
fracture of right 1-5 ribs and fracture involving left 1-4
ribs. The doctor in his evidence has stated that the
claimant has suffered disability of 31% to right upper limb
and 27% to left upper limb. Even the claimant in his
evidence has categorically stated that due to the
accidental injury, he was unable to do his day to day work
and even the doctor in his evidence, has deposed that due
to disability, the claimant was unable to do his day to day
work. In the cross-examination of PW-1 and PW-2 by the
respondent, the respondent has not elicited any contrary
evidence. Therefore, taking into consideration the
deposition of the doctor and injuries mentioned in the
wound certificate, I am of the opinion that the whole body
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disability is assessed at 14.5%. The Tribunal has rightly
assessed the monthly income of the claimant as
Rs.25,000/- and rightly applied the multiplier as '17'.
Thus, the claimant is entitled for compensation of
Rs.7,39,500/- (Rs.25,000*12*17*14.5%) on account of
'loss of future income'.
11. Considering the nature of injuries, the compensation
awarded by the Tribunal under 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 40,000 40,000
Medical expenses 4,47,000 447,000
Food, nourishment, 20,000 20,000
conveyance and
attendant charges
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Loss of injuries 40,000 40,000
Loss of amenities 40,000 40,000
Loss of future income 4,93,170 7,39,500
Future medical expenses 55,000 55,000
Total 11,35,170 13,81,500
13. In the result, the following order is passed:
ORDER
a) The appeal is allowed in part.
b) The judgment of the Claims Tribunal is modified.
c) The claimant is entitled to a total compensation of
Rs.13,81,500/-.
d) In view of judgment of the Division Bench of this
Court in the case of 'MS.JOYEETA BOSE' (supra), the
enhanced compensation shall carry interest at 6%
per annum.
e) The Insurance Company is directed to deposit the
compensation amount along with interest
from the date of filing of the claim petition till the
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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 expenses'.
Sd/-
JUDGE
HA
