Karnataka High Court

S G Umesha vs Ilyas T M on 29 November, 2023

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                         NC: 2023:KHC:43151
                                                       MFA No. 1414 of 2022




                        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. 1414 OF 2022 (MV)
                   BETWEEN:

                   S G UMESHA
                   S/O LATE GANGADHARA
                   AGED ABOUT 47 YEARS
                   R/AT SAMPIGEDALU VILLAGE
                   KODLIPETE HOBLI, SOMWARPETE TALUK
                   KODAGU DISTRICT - 571 231
                   ALSO R/AT PARASANAHALLI VILLAGE
                   MALLIPATTANA HOBLI, ARAKALAGUD TALUK
                   HASSAN DISTRICT - 573 102
                                                               ...APPELLANT
                   (BY SRI. PRASANNA V R., ADVOCATE)

                   AND:

                   1.    ILYAS T M
Digitally signed         S/O MAHAMMED
by
DHANALAKSHMI             R/AT 737, KEB ROAD
MURTHY
Location: High
                         ARAKALGUD TOWN
Court of                 HASSAN DISTRICT - 573 102.
Karnataka

                   2.    CHOLAMANDALUM M S
                         GENERAL INSURANCE COMPANY
                         HASSAN CIE, KAVERI COMPLEX
                         SAA NO. 1632, B M ROAD
                         KADAMBA COMFORT, HASSAN - 573 201
                                                             ...RESPONDENTS
                   (BY SRI.O.MAHESH., ADVOCATE FOR R2:
                   NOTICE TO R1 IS DISPENSED WITH
                   V/O DATED: 22.02.2022)
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                                       NC: 2023:KHC:43151
                                     MFA No. 1414 of 2022




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED: 01.01.2022
PASSED IN MVC NO.267/2020 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MEMBER, MACT, ARAKALAGUD, 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 1.1.2022 passed by MACT, Arakalagud in MVC

No.267/2020.

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

stated are that on 8.10.2019 when the claimant was

proceeding on motorcycle bearing registration No.KA-12-

K-6125 from Mallipattana to Sampigedalu Village, at that

time, car bearing registration No.KA-05-MG-8422 being

driven by its driver at a high speed and in a rash and

negligent manner, dashed to the vehicle of the claimant.

NC: 2023:KHC:43151

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 filed written statements in which the

averments made in the petition were denied.

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 at the instance of Court, Dr.Deepak.S was examined

as CW-1 and claimant got exhibited documents namely

Ex.P1 to Ex.P153 and Ex.C-1 to 17. On behalf of the

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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.425,180/-

along with interest at the rate of 6% 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 earning Rs.40,000/- per

month, but the Tribunal has taken the notional income as

merely as Rs.9,000/- p.m.

b) Secondly, the claimant has examined the doctor as

CW-1. The doctor in his evidence has stated that the

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claimant has suffered disability of 37.48% to particular

limb. But the Tribunal has taken the whole body disability

at 12%, 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 16 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', '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.40,000/- per month, he has not produced any

documents to establish his income. In the absence of proof

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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 12%.

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. 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 8.10.2019

due to rash and negligent driving of the offending vehicle

by its driver.

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10. The claimant claims that he was earning Rs.40,000/-

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 2019, the notional

income has to be taken at Rs.14,000/- p.m.

11. As per wound certificate, the claimant has sustained

tenderness over the right leg, tenderness over right

patella and right thigh and tenderness over the chest. The

doctor in his evidence has stated that the claimant has

suffered disability of 37.48% to particular limb. 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 12%. The

claimant is aged about 47 years at the time of the

accident and multiplier applicable to his age group is '13'.

Thus, the claimant is entitled for compensation of

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Rs.262,080/- (Rs.14,000*12*13*12%) 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 3

months. Therefore, the claimant is entitled for

compensation of Rs.42,000/- (Rs.14,000*3 months)

under the head 'loss of income during laid up period'.

13. The claimant was treated as inpatient for more than

16 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.40,000/-

and under the head of 'loss of amenities' from Rs.15,000/-

to Rs.40,000/-.

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14. The doctor in his evidence has stated that the

claimant requires about Rs.25,000/- for removal of

implants. But the claimant has not produced any

estimation of future surgery. Considering the nature of

injuries and evidence of doctor, the Tribunal has rightly

awarded compensation of Rs.15,000/- towards '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                    30,000              40,000

 Medical expenses                      139,700             139,700
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                                                 NC: 2023:KHC:43151





     Food, nourishment,                  30,000            30,000
     conveyance and
     attendant charges

     Loss of income during               27,000            42,000
     laid up period

     Loss of amenities                   15,000            40,000

     Loss of future income              168,480           262,080

     Future medical expenses             15,000            15,000

                   Total                425,180           568,780

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.568,780/-.

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