Karnataka High Court

Narasimhanayaka vs J K Hayath Khan on 23 November, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                        MFA No. 732 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 23RD DAY OF NOVEMBER, 2023

                                            BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                    MISCELLANEOUS FIRST APPEAL NO. 732 OF 2022 (MV)
                   BETWEEN:

                   NARASIMHANAYAKA
                   S/O KALANAYAKA
                   AGED ABOUT 40 YEARS
                   R/AT MOTTEDODDI, KAILANCHA HOBLI
                   RAMANAGARA TALUK-562159
                                                                 ...APPELLANT
                   (BY SRI. SHANTHARAJ K., ADVOCATE)

                   AND:

                   1.    J K HAYATH KHAN
                         S/O JALEEL KHAN
                         AGED MAJOR
                         R/AT ADIGERA KALLAHALLI VILLAGE
                         SARJAPURA HOBLI, ANEKAL TALUK-562117.
Digitally signed
by
DHANALAKSHMI       2.    SRI RAM GENERAL INS. CO. LTD
MURTHY
Location: High
                         BY ITS MANAGER
Court of                 NO.4/5, 3RD FLOOR, S V ARCADE
Karnataka
                         BILEKAHALLI MAIN ROAD,OPP B G ROAD
                         2ND MAIN, BENGALURU-560079.
                                                              ...RESPONDENTS
                   (BY SRI.B.C. SHIVANNE GOWDA., ADVOCATE FOR R2:
                    NOTICE TO R1 IS DISEPENSED WITH V/O DATED:
                   23.11.2023)
                        THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                   AGAINST THE JUDGMENT AND AWARD DATED: 16.11.2021
                   PASSED IN MVC NO.385/2016 ON THE FILE OF THE III
                   ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER,
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                                           NC: 2023:KHC:42203
                                         MFA No. 732 of 2022




ADDITIONAL MACT, RAMANGARA, PARTLY ALLOWING THE
CLAIM PETITION FOR 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 16.11.2021 passed by the Additional

Motor Accident Claims Tribunal and III Addl. District and

Sessions Judge, Ramanagara (for short, 'the Tribunal') in

MVC No.385/2016.

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

stated are that on 18.10.2015 at about 7.15 a.m., the

claimant was traveling in a bus bearing registration No.KA-

51/A-6409 to Achalu village. At Achalu village, when he

tried to get down from the bus, at that time, the driver of

the bus moved the same in a rash and negligent manner.

As a result, the claimant fell down from the bus and

sustained grievous injuries and was hospitalized.

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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 negligence of the claimant

himself. It was further pleaded that the driver 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 exorbitant. Hence, he sought

for dismissal of the petition. The respondent No.1 did not

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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,

another witness as PW2 and Dr.Venkatram Kumar as PW3

and got exhibited documents namely Ex.P1 to Ex.P50. On

behalf of the respondents, one witness was examined as

RW1 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 result of which, the claimant sustained injuries. The

Tribunal further held that the claimant is entitled to a

compensation of Rs.3,48,360/- along with interest at the

rate of 6% p.a. and since the insured has violated the

policy conditions, directed the Insurance Company to

deposit the compensation amount along with interest with

liberty to recover the same from the owner of the

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offending vehicle. 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.15,000/- per month, but the Tribunal has

taken the notional income as only Rs.6,000/- per month.

(ii) Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of 18%

to whole body. He further deposed that there is shortening

of left leg of the claimant and also in his cross-examination

he has admitted that the claimant has suffered disability to

the tune of 50%. Therefore, the Tribunal has erred in

taking the whole body disability at only 18%.

(iii) Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as 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.

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Considering the same, the compensation granted by the

Tribunal under the heads of 'pain and sufferings' and

other incidental expenses are on the lower side and the

Tribunal has not awarded any compensation under the

head 'loss of amenities'. 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.15,000/- 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 18%

to whole body and the 50% disability assessed by him is in

respect of particular limb. Therefore, the whole body

disability assessed by the Tribunal is just and reasonable.

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(iii) Thirdly, the injuries suffered by the claimant are

minor in nature. He was inpatient for only 7 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. 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 18.10.2015 due to

rash and negligent driving of the bus bearing registration

No.KA-51/A-6409 by its driver.

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 2015, the notional

income has to be taken at Rs.9,000/- p.m. Due to the

accident the claimant has suffered fracture of left tibia and

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other injuries. PW-2, the doctor has stated in his evidence

that the claimant has suffered disability of 18% to whole

body. In his cross-examination, he has deposed that there

is shortening of left lower limb, disability to the particular

limb is three times higher than the permanent disability

and he has also assessed the permanent disability suffered

by the claimant as 50%. Considering the permanent

disability suffered by the claimant and considering the

evidence of the doctor, the Tribunal has rightly assessed

the whole body disability at 18%. The claimant was aged

about 34 years at the time of the accident and multiplier

applicable to his age group is '16'. Thus, the claimant is

entitled for compensation of Rs.3,11,040/-

(Rs.9,000*12*16*18%) 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 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

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Rs.40,000/- to Rs.50,000/- and for 'medical expenses,

conveyance, food and attendant charges' from Rs.65,000/-

to Rs.77,000/- and claimant is also entitled to 'loss of

amenities' at Rs.40,000/-. In view of rise in the monthly

income from Rs.6,000/- to Rs.9,000/- per month, the

claimant is entitled to compensation of Rs.54,000/-

(Rs.9,000*6) under the head 'loss of income during laid-

up period' instead of Rs.36,000/- awarded by the Tribunal.

In respect of 'future medical expenses' the doctor deposed

that the claimant has undergone surgery, there is implant

and he has not assessed the cost for removal of implants

and future surgery. Considering the evidence of the

doctor and the injuries suffered by the claimant, I am of

the opinion that the claimant is entitled to Rs.20,000/-

towards 'future medical expenses'. The compensation

awarded by the Tribunal under other heads is just and

reasonable.

11. Thus, the claimant is entitled to the following

compensation:

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                                               NC: 2023:KHC:42203





                              As awarded           As awarded
                                by the               by this
   Compensation under
                               Tribunal               Court
     different Heads
                                      (Rs.)           (Rs.)

  Pain and sufferings                   40,000          50,000

  Medical expenses,                     65,000          77,000
  conveyance, food,
  nourishment and
  attendant charges

  Loss of income during                 36,000          54,000
  laid up period

  Loss of amenities                            0        40,000

  Loss of future income                207,360         311,040

  Future medical expenses                      0        20,000

                 Total                348,360         552,040