Karnataka High Court
Sri Rangaswamy vs Sri Srinivasa on 22 November, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
-1-
NC: 2023:KHC:42014
MFA No. 1378 of 2021
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. 1378 OF 2021 (MV)
BETWEEN:
SRI RANGASWAMY
S/O LATE PUTTRANGASHETTY
AGED ABOUT 51 YEARS
R/AT C/O RAJU, ALLAPATANA VILLAGE
SRIRANGAPATNA TALUK
MANDYA DISTRICT 571401.
...APPELLANT
(BY SRI. MANJUNATH N D., ADVOCATE)
AND:
1. SRI SRINIVASA
S/O SWAMYGOWDA
AGED ABOUT 45 YEARS
R/AT NO.10/1, DODDAVADARAGUDI
Digitally signed (BOMMANAHALI) K.R.NAGARA TALUK
by
DHANALAKSHMI MYSORE DISTRICT,LAKSHAR MOHALLA
MURTHY MYSORE 57001.
Location: High
Court of
Karnataka 2. HDFC ERGO GENERAL INSURANCE COMPANY LTD.,
1ST FLOOR, H.M. JINEVA HOUSE
NO.14, CUNNINGHAM ROAD
BANGALORE 560001.
...RESPONDENTS
(BY SRI.MALLIKARJUNA REDDY N.A., ADVOCATE FOR
SRI. B. PRADEEP B., ADVOCATE FOR R2:
NOTICE TO R1 IS D/W V/O DATED: 25.11.2022)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 26.11.2019,
-2-
NC: 2023:KHC:42014
MFA No. 1378 of 2021
PASSED IN MVC NO.139/2018, ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND MACT, SRIRANGAPATANA, 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, Srirangapatana in MVC
No.139/2018.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 31.08.2017 at about 08.00 p.m., the
claimant was riding the motor bike bearing Registration
No.KA-45-R-2014 in a slow and cautious manner on the
left side of the road and when he reached near
Patadalamma Temple, on Hassan-Mysuru road,
Sugganahalli Village, at that time, the driver of the Tata
Ace Magic Vehicle bearing Registration No.KA-45-7700
drove the same in a rash and negligent manner and
NC: 2023:KHC:42014
dashed to the claimant's motor bike. 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
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. It was further pleaded that the accident was
due to the rash and negligent driving of the vehicle by the
claimant himself. The driver of the offending vehicle did
not have valid driving licence as on the date of the
accident. The liability is subject to terms and conditions of
NC: 2023:KHC:42014
the policy. 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.
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.Ravindranath K was examined as PW-2 and got
exhibited documents namely Ex.P1 to Ex.P12. On behalf of
the respondents, one witness was examined as RW-1 and
got exhibited documents namely Ex.R1 to Ex.R6. 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
NC: 2023:KHC:42014
result of which, the claimant sustained injuries. The
Tribunal further held that the claimant is entitled to a
compensation of Rs.9,11,000/- along with interest at the
rate of 9% p.a. 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, even though the claimant claims that he was
doing agricultural work and dairying and earning
Rs.20,000/- per month, but the Tribunal has taken the
notional income as merely as Rs.6,000/- p.m.
b) Secondly, the claimant has examined the doctor as
PW-2. The doctor in his evidence has stated that the
claimant's right leg below the knee was amputated and he
further stated that the claimant has suffered disability of
25.5% to right upper limb and 66% to the right lower
limb. Due to the said disability, the claimant is unable to
do his day to day work. The Tribunal instead assessing the
NC: 2023:KHC:42014
functional disability to an extent of 100%, has assessed
the whole body disability at 59% which is on the lower
side.
c) Thirdly, due to the accident, the claimant has
sustained grievous injuries. He was treated as inpatient for
a period of 4 ½ months. 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', future medical expenses 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, even though the claimant claims that he was
earning Rs.20,000/- per month, he has not produced any
documents to establish his income. In the absence of proof
NC: 2023:KHC:42014
of income, the Tribunal has rightly assessed the income of
the claimant notionally.
b) Secondly, even though the claimant's right leg below
the knee was amputated, the Tribunal considering the
injuries sustained by the claimant and evidence of the
doctor, has rightly assessed the whole body disability at
59%.
c) 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',
future medical expenses and other incidental expenses are
just and reasonable and it does not call for interference.
d) 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 9% p.a. on the
compensation amount is on the higher side. Hence, he
sought for dismissal of the appeal.
NC: 2023:KHC:42014
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 31.08.2017
due to rash and negligent driving of the offending vehicle
by its driver.
10. The claimant claims that he was earning Rs.20,000/-
per month. He has not produced any documents to prove
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. As per wound certificate, the claimant has sustained
suture wound over occipital region of scalp measuring 3x5
cm, fracture of lower 3rd of ulna with fracture of 3rd and 4th
NC: 2023:KHC:42014
metacarpal bone, the gloving crush injuries to right foot
and amputation was done above the knee joint. The doctor
in his evidence has stated that the claimant's right leg
below the knee was amputated and he further stated that
the claimant has suffered disability of 25.5% to right
upper limb and 66% to the right lower limb. The Tribunal
after considering the evidence of the doctor, injuries
suffered by the claimant, has rightly assessed the whole
body disability at 59%. Due to amputation of his right leg
below the knee, the claimant is unable to do his day to
day work and it affects his agricultural activities.
Therefore, considering the evidence of the doctor, injuries
suffered by the claimant, age and avocation of the
claimant and in view of judgment of the, judgment of the
Hon'ble Apex Court in the cases of PAPPU DEO YADAV vs.
NARESH KUMAR AND OTHERS' 2020 SCC Online SC 752
and 'ERUDHAYA PRIYA vs. STATE EXPRESS TRANSPORT
CORPORATION LTD. 2020' SCC Online SC 601, the
claimant is entitled for future prospects. Since the
claimant was aged about 48 years 25% has to be added
- 10 -
NC: 2023:KHC:42014
on account of future prospects in view of the law laid down
by the Constitution Bench of the Supreme Court in the
case of NATIONAL INSURANCE CO. LTD. -v- PRANAY
SETHI AND OTHERS reported in AIR 2017 SC 5157. Thus,
the monthly income comes to Rs.13,750/-. The claimant
is aged about 48 years at the time of the accident and
multiplier applicable to his age group is '13'. Thus, the
claimant is entitled for compensation of Rs.12,65,550/-
(Rs.13,750*12*13*59%) on account of 'loss of future
income'.
12. The nature of injuries suggests that the claimant
must have been under rest and treatment for a period of
5 months. Therefore, the claimant is entitled for
compensation of Rs.55,000/- (Rs.11,000*5 months)
under the head 'loss of income during laid up period'.
13. Due to the accident, the claimant has suffered
grievous injuries and also undergone surgery. He was
treated as inpatient for more than 4 ½ months in the
- 11 -
NC: 2023:KHC:42014
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.40,000/- to
Rs.55,000/- and under the head of 'future medical
expenses' from Rs.15,000/- to Rs.20,000/- which does
not carry any interest.
14. Considering the nature of injuries, the compensation
awarded by the Tribunal under other heads is just and
reasonable.
15. 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
- 12 -
NC: 2023:KHC:42014
Medical expenses 1,56,000 1,56,000
Food, nourishment, 15,000 15,000
conveyance and
attendant charges
Loss of income during 35,000 55,000
laid up period
Loss of amenities 40,000 55,000
Loss of future income 7,36,000 12,65,550
Future medical expenses 15,000 20,000
Total 10,72,000 16,41,550
Less 15% contributory 1,60,800 2,46,232
negligence of claimant
Total 85% 9,11,200 13,95,318
Tribunal has rounded of the compensation amount
from Rs.9,11,200/- to Rs,9,11,000/-
16. In respect of negligence is concerned, the Tribunal
after considering the material available on record, has
rightly held that the claimant has also contributed
negligence to an extent of 15% to the accident.
- 13 -
NC: 2023:KHC:42014
17. Therefore, I pass the following order:
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.16,41,550/-.
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 85% of the total compensation amount
of Rs.16,41,550/- i.e. Rs.13,95,318/- along
with interest 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 on the
- 14 -
NC: 2023:KHC:42014
enhanced compensation awarded under the head
of 'future medical expenses'.
Sd/-
JUDGE
HA
