Karnataka High Court
Sri B M Gangadhar vs Sri Raju on 22 November, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2023:KHC:41941
MFA No. 1035 of 2022
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. 1035 OF 2022 (MV)
BETWEEN:
SRI B M GANGADHAR
S/O MOTAVENKATAPPA
AGED ABOUT 43 YEARS
R/AT BYATARAYANAHALLI VILLAGE
ARALERI POST, MALUR TALUK
KOLAR DISTRICT. ...APPELLANT
(BY SRI. KAILAS SHANKAR P S.,ADVOCATE)
AND:
1. SRI RAJU
S/O KRISHNAPPA
MAJOR
Digitally signed R/AT NOSAGERE VILLAGE
by HURALAGERE POST, MALUR TALUK
DHANALAKSHMI KOLAR DISTRICT.
MURTHY
Location: High
Court of 2. THE MANAGER
Karnataka UNITED INDIA INSURANCE CO LTD.,
REGIONAL OFFICE, NO.18
KRISHI BHAVAN,5TH FLOOR
OPP HUDSON CIRCLE
NRUPATHUNGA ROAD
BANGALORE-560001. ...RESPONDENTS
(BY SRI. JANARDHAN REDDY., ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH V/O DATED: 22.11.2023)
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MFA No. 1035 of 2022
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 2.12.2019
PASSED IN MVC NO. 7374/2018 ON THE FILE OF THE VIII
ADDITIONAL SMALL CAUSES JUDGE AND THE MOTOR
ACCIDENT CLAIMS TRIBUNAL (SCCH-5), BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ORDERS, 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 02.12.2019 passed by the VIII
Additional Small Causes Judge and the Motor Accident
Claims Tribunal, Bengaluru (for short, 'the Tribunal') in
MVC No.7374/2018.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 09.10.2018 at about 7.45 a.m.
the claimant was proceeding on his motorcycle bearing
registration No.KA-04/HN-3472 from his village
Byatarayananalli on Byatarayanahalli-Chikkakunturu road.
At that time, another motorcycle bearing registration
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No.KA-08/S-3875 being ridden by its rider at a high speed
and in a rash and negligent manner, dashed to the vehicle
of the claimant. As a result of the aforesaid accident, the
claimant fell down, 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
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.
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
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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
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 PW1
and Dr.Krishan Prasad as PW2 and got exhibited
documents namely Ex.P1 to Ex.P16. On behalf of the
respondents, one witness was examined as RW1 and got
exhibited documents namely Ex.R1 to 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
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of Rs.6,61,000/- 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, this appeal has been filed.
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, PW-2, the doctor has stated in his
evidence that the claimant has suffered disability of 17%
to whole body. But the Tribunal has erred in taking the
whole body disability at only 12%.
(iii) Thirdly, due to the accident, the claimant has
sustained grievous injuries. He was treated as inpatient for
a period of 13 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.
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Considering the same, the compensation granted by the
Tribunal under the heads of 'loss of amenities', 'pain and
sufferings' and other incidental expenses are on the lower
side and the Tribunal has not awarded any compensation
for 'loss of income during laid-up period'. 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
any documents to establish his income. Therefore, the
Tribunal has rightly assessed the income of the claimant
notionally.
(ii) Secondly, PW-2, the doctor has stated in his
evidence that the claimant has suffered disability of 17%
to whole body. The Tribunal considering the injuries
sustained by the claimant, has rightly assessed the whole
body disability at 12%.
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(iii) Thirdly, the injuries suffered by the claimant are
minor in nature. He was inpatient for only 13 days.
Considering the evidence of the doctor and the injuries
suffered by the claimant, the overall compensation
awarded by the Tribunal is just and reasonable.
(iv) Fourthly, in view of the Division Bench decision
of this Court in the case of MS.JOYEETA BOSE AND
OTHERS vs. VENKATESHAN.V AND OTHERS (MFA
5896/2018 and connected matters disposed of on
24.8.2020), the interest granted by the Tribunal at the
rate of 9% p.a. is on the higher side and the same has to
be reduced to 6% p.a. Hence, he sought for dismissal of
the appeal.
8. Heard the learned counsel for the parties.
Perused the judgment and award.
9. It is not in dispute that the claimant suffered
injuries in the accident occurred on 09.10.2018 due to
rash and negligent driving of the motorcycle bearing
registration No.KA-08/S-3875 by its rider.
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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
Karnataka State Legal Services Authority. Since the
accident has taken place in the year 2018, the notional
income has to be taken at Rs.12,500/- p.m. Due to the
accident the claimant has suffered major facial bone
trauma and left clavicle fracture and other injuries. The
claimant was inpatient for 13 days. PW-2, the doctor has
stated in his evidence that the claimant has suffered
disability of 17% to whole body. Taking into consideration
the deposition of the doctor, PW-2 and injuries suffered by
the claimant, the whole body disability is taken at 17%.
The claimant was aged about 41 years at the time of the
accident and multiplier applicable to his age group is '14'.
Thus, the claimant is entitled for compensation of
Rs.3,57,000/- (Rs.12,500*12*14*17%) on account of
'loss of future income'. 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
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and unhappiness throughout his life. Considering the
same, I am of the opinion that the claimant is entitled to
'loss of income during laid-up period' for a period of two
months, i.e., Rs.25,000/- (Rs.12,500*2). The
compensation awarded by the Tribunal under other heads
is just and reasonable.
11. 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 3,59,000 3,59,000
Food, nourishment, 15,000 15,000
conveyance and
attendant charges
Loss of income during 0 25,000
laid up period
Loss of amenities 30,000 30,000
Loss of future income 1,82,000 3,57,000
Total 6,61,000 8,61,000
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12. 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.8,61,000/- in place of Rs.6,61,000/- awarded by the
Tribunal.
(iii) The Insurance Company is directed to deposit
the compensation amount 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.
(iv) The enhanced compensation carries interest @
6% p.a.
Sd/-
JUDGE
CM
