Karnataka High Court

Mr Nagarjun Kumar V vs M/S New India Assurance Company Ltd on 22 November, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                          NC: 2023:KHC:42047
                                                       MFA No. 2855 of 2020




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 22ND DAY OF NOVEMBER, 2023

                                            BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 2855 OF 2020 (MV)
                   BETWEEN:

                   MR NAGARJUN KUMAR V
                   S/O VENKATAPPA
                   AGED ABOUT 22 YEARS
                   R/AT NO.155, 1ST MAIN
                   1ST CROSS, OPP. DSR APARTMENTS
                   MAHADEVAPURA BANDE
                   WHITEFIELD ROAD
                   BENGALURU 560 048.
                                                                ...APPELLANT
                   (BY SRI. GURUDEV PRASAD K T., ADVOCATE)

                   AND:

                   1.     M/S NEW INDIA ASSURANCE COMPANY LTD.,
                          BY ITS MANAGER
Digitally signed
by                        THE ESTATE NO.9/2, 2ND FLOOR
DHANALAKSHMI              MAHALAKSHMI CHAMBERS
MURTHY
                          M.G. ROAD, BENGALURU 560 001.
Location: High
Court of
Karnataka               2. MR. RAJA
                           S/O YEDIYAPPA
                           INDLABELE VILLAGE
                           ATTIBEL ROAD, ANEKAL TALUK
                           BANGALORE RURAL DISTRICT-562106.
                                                              ...RESPONDENTS
                   (BY SMT. HARINI SHIVANANDA., ADVOCATE FOR R1:
                       NOTICE TO R2 IS D/W V/O DATED: 17.04.2023)
                        THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                   AGAINST THE JUDGMENT AND AWARD DATED: 01.06.2019
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                                        NC: 2023:KHC:42047
                                      MFA No. 2855 of 2020




PASSED IN MVC NO.2255/2018 ON THE FILE OF THE V
ADDITIONAL SMALL CAUSES JUDGE AND XXIV ACMM,
MEMBER, MACT, MAYO HALL UNIT, BENGALURU,   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 01.06.2019 passed by MACT, Bengaluru in MVC

No.2255/2018.

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

stated are that on 19.01.2018 at 06.30 a.m., in front of

Vegetable Shop, Mahadevapura Bande, Bengaluru City,

the claimant was riding a motor cycle bearing Registration

No.KA-53-EM-0527, at that time, the driver of the

Mahindra Bolero Jeep bearing Registration No.KA-51-P-

8808 came in a rash and negligent manner, so as to

endanger human life and dashed the claimant. As a result

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of the aforesaid accident, the claimant fell down and

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

driving of the offending vehicle by its driver.

4. On service of notice, the respondent No.1 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, he sought for dismissal of

the petition.

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The respondent No.2 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, Dr.S.A.Somashekara was examined as PW-2 and

another witness was examined as PW-3 and got exhibited

documents namely Ex.P1 to Ex.P22. On behalf of the

respondents, neither examined any witness nor exhibited

any document. 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.4,03,000/-

along with interest at the rate of 9% p.a. and directed the

Insurance Company to deposit the compensation amount

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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 physical impairment to the left lower

limb disability of 36% and 18% to whole body. But the

Tribunal has taken the whole body disability at 6%, which

is on the lower side.

b) Secondly, 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.

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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 doctor assessed the whole

body disability at 6%, the Tribunal considering the injuries

sustained by the claimant and evidence of the doctor, has

rightly assessed the whole body disability at 6%.

b) Secondly, 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) Thirdly, 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 9% p.a. on the

compensation amount is on the higher side. Hence, he

sought for dismissal of the appeal.

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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 19.01.2018

due to rash and negligent driving of the offending vehicle

by its driver.

10. Due to the accident, the claimant has sustained

fracture shaft of left tibia and fibula and other injuries. The

doctor, who is an Orthopedics Surgeon at Bowring and

Lady Curzon Hospital, has stated in his evidence that the

claimant has suffered physical impairment to the left lower

limb disability of 36% and 18% to whole body. 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 disability is assessed at 12%.

The Tribunal considering the evidence of the claimant, his

age and avocation, has rightly assessed the monthly

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income of the claimant at Rs.13,000/-. The claimant is

aged about 21 years at the time of the accident and

multiplier applicable to his age group is '18'. Thus, the

claimant is entitled for compensation of Rs.3,36,960/-

(Rs.13,000*12*18*12%) on account of 'loss of future

income'.

11. Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He was

treated as inpatient for more than 4 days in the hospital.

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 'loss of amenities' from Rs.10,000/- to Rs.35,000/-.

12. Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

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13. 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                 75,000           75,000

 Medical expenses                    80,208           80,208

 Food, nourishment,                  20,000           20,000
 conveyance and
 attendant charges

 Loss of income during               14,000           14,000
 laid up period

 Loss of amenities                   10,000           35,000

 Loss of future income             1,68,480       3,36,960

 Future surgery                      35,000           35,000

                 Total             4,02,688      5,96,168

The Tribunal has rounded of the compensation from Rs.4,02,688/- to Rs.4,03,000

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