Karnataka High Court
Sri. Syed Asif vs Sri. S M Shankar on 22 November, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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MFA No. 5322 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. 5322 OF 2020 (MV)
BETWEEN:
SRI. SYED ASIF
S/O SYED JALAL
AGED ABOUT 32 YEARS
RESIDING AT NAGADENAHALLI VILLAGE
MASTHI HOBLI, MALUR TALUK, KOLAR DISTRICT.
...APPELLANT
(BY SRI. KAILAS SHANKAR P S., ADVOCATE)
AND:
1. SRI. S M SHANKAR
S/O MUNIYAPPA
MAJOR
NO 122, SOMAPURA VILLAGE
SARJAPUR POST, ANEKAL TALUK
Digitally signed BANGALORE DISTRICT.
by
DHANALAKSHMI
MURTHY 2. THE MANAGER
Location: High UNITED INDIA INSURANCE CO LTD.
Court of
Karnataka REGIONAL OFFICE NO 18, 5TH FLOOR
KRISHI BHAVAN, OPP HUDSON CIRCLE
NRUPATHUNGA ROAD
BANGALORE 560001.
...RESPONDENTS
(BY SRI.L SREEKANTA RAO., ADVOCATE FOR R2:
NOTICE TO R1 IS D/W V/O DATED: 11.04.2022)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 26.11.2019
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MFA No. 5322 of 2020
PASSED IN MVC NO.7250/2017 ON THE FILE OF THE IX
ADDITIONAL SMALL CAUSES JUDGE AND ACMM, COURT OF
SMALL CAUSES, MEMBER, MACT-7, BENGALURU, SCCH-7,
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 26.11.2019 passed by MACT, Bengaluru in MVC
No.7250/2017.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 02.08.2017 at about 05.30 p.m., when
the claimant and others were standing on a footpath in
front of Oakridge School, Dommasandra, Bengaluru City
by doing timber business, at the same time, the driver of
the Nano Car bearing Registration No.KA-01-MJ-7010
came from Varthur side at high speed in a rash and
negligent manner to the wrong side of the road, on to
footpath and dashed violently against them. As a result of
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the aforesaid accident, the claimant and others knocked
down and sustained grievous injuries and were
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.2 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.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.Nagaraja B N was examined as PW-3 and got
exhibited documents namely Ex.P1 to Ex.P20. 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.4,03,060/-
along with interest at the rate of 6% 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, even though the claimant claims that he was
doing carpenter work and earning Rs.15,000/- per month,
but the Tribunal has taken the notional income as merely
as Rs.8,000/- p.m.
b) Secondly, the claimant has examined the doctor as
PW-3. The doctor in his evidence has stated that the
claimant has suffered total permanent disability from right
hand at 39% and 25% to the whole body functional
disability. But the Tribunal has taken the whole body
disability at 13%, 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 25 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.
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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. The Tribunal has failed to grant any compensation
under the head of 'loss of income during the laid up
period'. 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.15,000/- per month, he has not produced any
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 13%.
c) Thirdly, considering the injuries sustained by the
claimant and considering the age and avocation of the
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claimant, the overall compensation awarded by the
Tribunal is just and reasonable and it does not call for
interference.
d) Lastly, even though the doctor has deposed that the
claimant required future medical expenses, he has not
specified the cost of the future surgery and no estimation
has been produced. Therefore, the Tribunal has rightly not
granted any compensation under the 'future medical
expenses'. 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.
9. It is not in dispute that the claimant has sustained
injuries in the road traffic accident occurred on 02.08.2017
due to rash and negligent driving of the offending vehicle
by its driver.
10. The claimant claims that he was earning Rs.15,000/-
per month. He has not produced any documents to prove
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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 2017, the notional
income has to be taken at Rs.11,000/- p.m.
11. Due to accident, the claimant has sustained fracture
of right fibula and tibia and injury over right proximal
humerus. The doctor in his evidence has stated that the
claimant has suffered total permanent disability from right
hand at 39% and 25% to whole body functional disability.
Therefore, taking into consideration the deposition of the
doctor and injuries mentioned in the wound certificate, the
Tribunal has rightly taken the whole body disability at
13%. The claimant is aged about 29 years at the time of
the accident and multiplier applicable to his age group is
'17'. Thus, the claimant is entitled for compensation of
Rs.2,91,720/- (Rs.11,000*12*17*13%) on account of
'loss of future income'.
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12. The nature of injuries suggests that the claimant
must have been under rest and treatment for a period of 3
months. Therefore, the claimant is entitled for
compensation of Rs.33,000/- (Rs.11,000*3 months)
under the head 'loss of income during laid up period'.
13. Due to the accident, the claimant has suffered
grievous injuries. He was treated as inpatient for more
than 25 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 of the opinion that the claimant is entitled for
compensation of Rs.40,000/- under the head of 'loss of
amenities'.
14. In respect of future medical expenses is concerned,
the claimant has not produced any medical records to
show that he has undergone any surgery and the doctor
has not stated any estimation of cost required for future
medical expenses. Considering the same, the claimant is
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also entitled for compensation of Rs.10,000/- under the
head of 'future medical expenses'.
15. Considering the nature of injuries, the compensation
awarded by the Tribunal under other heads is just and
reasonable.
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 50,000 50,000
Medical expenses 1,30,900 1,30,900
Food, nourishment, 10,000 10,000
conveyance and
attendant charges
Loss of income during 0 33,000
laid up period
Loss of amenities 0 40,000
Loss of future income 2,12,160 2,91,720
Future medical expenses 0 10,000
Total 4,03,060 5,65,620
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17. 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.5,65,620/-.
d) 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.
Sd/-
JUDGE
HA
