Subramanya Bhat vs Dinesh Shetty
2023 Latest Caselaw 7454 Kant

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                                                            NC: 2023:KHC:38990
                                                        MFA No. 2868 of 2020




                        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. 2868 OF 2020 (MV)
                   BETWEEN:

                   SUBRAMANYA BHAT
                   AGED ABOUT 58 YEARS
                   S/O MANJUNATAH BHAT
                   R/O. H.NO.2-143, KINNAMBETTU HOUSE
                   ALADKAM JALUVALLI POST,CHERKADI
                   UDUPI TALUK AND DISTRICT-576101.
                                                                  ...APPELLANT
                   (BY KUM.SWATHI G., ADVOCATE FOR
                   SRI. PAVANA CHANDRA SHETTY H., ADVOCATE)
                   AND:

                   1.    DINESH SHETTY
                         AGED ABOUT 54 YEARS
                         S/O SHIVARAM SHETTY
                         R/AT H.NO.1-14 (2), NEELAVAR
Digitally signed
by                       BRAHMAVAR, THADEKALLU
DHANALAKSHMI             UDUPI TALUK AND DISTRICT-576101.
MURTHY
Location: High
Court of           2.    THE UNITED INDIA INSURANCE CO. LTD
Karnataka                DIVISIONAL MANAGER
                         DIVISIONAL OFFICE
                         JEWEL PLAZA, 1ST FLOOR
                         MARUTHI VEETHIKA
                         UDUPI DISTRICT-576101.
                                                               ...RESPONDENTS
                   (BY SRI.RAJENDRA HEGDE MULKHAND, ADVOCATE FOR
                   SRI. S.V. HEGDE MULKHAND, ADVOCATE FOR R2:
                   NOTICE TO R1 IS DISPENSED WITH V/O DATED:17.4.2023)
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                                              NC: 2023:KHC:38990
                                            MFA No. 2868 of 2020




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 20.06.2019
PASSED IN MVC NO. 569/2017 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI,
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 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 20.06.2019 passed by the Addl.

Senior Civil Judge and Addl. MACT at Udupi in MVC

No.569/2017.

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

stated are that on 07.01.2017 at about 6.00 p.m., the

claimant was proceeding on his motorcycle bearing

registration No.KA-20/V-9865 from Brahmavara towards

Hebri. When he reached near Cherkady, at that time,

another motorcycle bearing registration No.KA-33/H-5186

being ridden by its rider at a high speed and in a rash and

negligent manner, dashed to the vehicle of the claimant.

NC: 2023:KHC:38990 MFA No. 2868 of 2020

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

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 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 rider of the offending vehicle did not have valid

driving licence as on the date of the 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

NC: 2023:KHC:38990 MFA No. 2868 of 2020

exorbitant. Hence, he 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.Monappa Naik as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P26. On behalf of the

respondents, no witness was examined but got exhibited

one 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.3,74,000/-

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.

NC: 2023:KHC:38990 MFA No. 2868 of 2020

6. The learned counsel for the claimant has raised

the following contentions:

(i) Firstly, even though the claimant claims that he

was earning Rs.20,000/- per month, but the Tribunal has

taken the notional income as only Rs.9,000/- per month.

(ii) Secondly, due to the accident the claimant has

suffered grievous injuries, he was inpatient for a period of

7 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 sufferings' and other

incidental heads 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.20,000/- per month, he has not produced

NC: 2023:KHC:38990 MFA No. 2868 of 2020

any documents to establish his income. Therefore, the

Tribunal has rightly assessed the income of the claimant

notionally.

(ii) Secondly, the whole body disability assessed by

the doctor is on the higher side. The Tribunal has erred in

considering the whole body disability as 8%.

(iii) Thirdly, considering the injuries suffered by the

claimant and considering the age and avocation, the

compensation awarded by the Tribunal is just and

reasonable. 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 suffered

injuries in the accident occurred on 07.01.2017 due to

rash and negligent riding of the motorcycle bearing

registration No.KA-33/H-5186.

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

NC: 2023:KHC:38990 MFA No. 2868 of 2020

Karnataka State Legal Services Authority. Since the

accident has taken place in the year 2017, the notional

income has to be taken at Rs.11,000/- p.m. Due to the

accident the claimant has suffered open fracture of right

femur shaft with intertrochanteric fracture. The claimant

was inpatient for a period of 7 days. Considering the

deposition of the doctor, PW-2 and injuries suffered by the

claimant, the Tribunal has rightly assessed the whole body

disability at 8%. The claimant was aged about 58 years at

the time of the accident and multiplier applicable to his

age group is '9'. Thus, the claimant is entitled for

compensation of Rs.95,040/- (Rs.11,000*12*9*8%) on

account of 'loss of future income'.

11. 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.15,000/- to Rs.40,000/-, 'loss of amenities' from

NC: 2023:KHC:38990 MFA No. 2868 of 2020

Rs.20,000/- to Rs.35,000/- and 'loss of income during

laid-up period' for a period of three months, i.e.,

Rs.33,000/- (Rs.11,000*3). 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                        15,000          40,000

 Medical expenses                         1,88,995         1,88,995

 Food, nourishment,                         15,000          15,000
 conveyance and
 attendant charges

 Loss of income during                      27,000          33,000
 laid up period

 Loss of amenities                          20,000          35,000

 Loss of future income                      77,760          95,040

 Future medical expenses                    30,000          30,000

                     Total                3,73,755        4,37,035

                                           NC: 2023:KHC:38990
                                        MFA No. 2868 of 2020

13. 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.4,37,035/- in place of

Rs.3,73,755/- 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 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

CM