Karnataka High Court
Ningaiah vs The Manager on 29 November, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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MFA No. 114 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 114 OF 2021 (MV)
BETWEEN:
NINGAIAH
S/O KALAIAH
AGED ABOUT 51 YEARS
R/AT GANJAM
S R PATNA TOWN AND TALUK
MANDYA DISTRICT-571438
...APPELLANT
(BY SRI. VIJAY KUMAR T.,ADVOCATE)
AND:
1. THE MANAGER
UNITED INDIA INSURANCE CO. LTD.
KANTHARAJ URS ROAD
Digitally signed
by MYTHRI ARCADE
DHANALAKSHMI NEAR SARASWATHI TALKIES
MURTHY
Location: High
SARASWATHIPURAM, MYSURU-570009.
Court of
Karnataka
2. E FRANCIS
MAJOR
S/O LATE EDWARD
R/AT NO.1296, 2ND STAGE
7TH CROSS, MOTHER THERESA COLONY
RAJIV NAGARA, MYSURU-570019
...RESPONDENTS
(BY SMT. HARINI SHIVANANDA., ADVOCATE FOR R1:
NOTICE TO R2 IS DISPENSED WITH)
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MFA No. 114 of 2021
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 08.11.2019,
PASSED IN MVC NO.182/2019, ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND MACT,
SRIRANGAPATNA, 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 8.11.2019 passed by MACT, Srirangapatna in MVC
No.182/2019.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 21.12.2018 when the claimant was
proceeding on bicycle on Ring Road near Pushpasharma
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junction, Mysore, at that time, motorcycle bearing
registration No.KA-09-HL-9896 being ridden by its driver
at a high speed and in a rash and negligent manner,
dashed to the claimant. 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 respondents appeared
through counsel and only respondent No.2 filed written
statement in which the averments made in the petition
were denied.
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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.N.Karunakar was examined as CW-1 and got
exhibited documents namely Ex.P1 to Ex.P29. On behalf
of the respondents, neither any witness was examined nor
any document was produced. 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.184,070/-
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:
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a) Firstly, even though the claimant claims that he was
working in GRS Fantasy Park and earning Rs.15,000/- per
month and produced salary receipt at Ex.P-13 and he has
also agricultural income, but the Tribunal has taken the
notional income as merely as Rs.10,387/- p.m.
b) Secondly, the claimant has examined the doctor as
CW-1. The doctor in his evidence has stated that the
claimant has suffered permanent physical disability of
25%. But the Tribunal has taken the whole body disability
at 8%, 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 15 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 claimant claims that he was
earning Rs.15,000/- per month and produced salary
receipt at Ex.P-13, but he has not produced any other
supporting documents to establish his income and he has
not examined his employer. 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 8%.
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' and
other incidental expenses are just and reasonable and it
does not call for interference.
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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.
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 21.12.2018
due to rash and negligent driving of the offending vehicle
by its driver.
10. The claimant claims that he was working in GRS
Fantasy Park and earning Rs.15,000/- per month and
produced Ex.P13 salary receipt and he also claims that he
was getting agricultural income. As per Ex.P-13, he was
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getting salary of Rs.11,500/- p.m. He has not produced
any documents to show that he was getting any
agricultural income. Therefore, considering the evidence of
the claimant and Ex.P-13, income of the claimant is taken
at Rs.11,500/- p.m.
11. As per wound certificate, the claimant has sustained
pain and swelling of lumbar region and both joints. The
doctor in his evidence has stated that the claimant has
suffered permanent physical disability of 25%. There is
restrictions in movements. Considering the evidence of the
doctor and considering the nature of injuries, the whole
body disability can be taken at 10%. The claimant is aged
about 56 years at the time of the accident and multiplier
applicable to his age group is '9'. Thus, the claimant is
entitled for compensation of Rs.124,200/-
(Rs.11,500*12*9*10%) 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.34,500/- (Rs.11,500*3 months)
under the head 'loss of income during laid up period'.
13. The claimant was treated as inpatient for more than
15 days in the hospital and thereafter, has received
further treatment. Due to the accident, the claimant has
suffered grievous injuries and also undergone surgery. 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 'pain and sufferings' from Rs.30,000/- to Rs.45,000/-
and under the head of 'loss of amenities' from Rs.15,000/-
to Rs.40,000/-.
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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 30,000 45,000
Medical expenses 13,545 13,545
Food, nourishment, 15,000 15,000
conveyance and
attendant charges
Loss of income during 20,774 34,500
laid up period
Loss of amenities 15,000 40,000
Loss of future income 89,748 124,200
Total 184,067 272,245
Rounded off 184,070 272,250
16. In the result, the following order is passed:
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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.272,250/-.
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 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.
Sd/-
JUDGE
DM
