Karnataka High Court

Sri. Mastanee S vs Sri. Santhosh Kumar Yadav on 27 October, 2023

Bench: H T Prasad

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                                                            NC: 2023:KHC:38093
                                                          MFA No. 1581 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 27TH DAY OF OCTOBER, 2023

                                             BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 1581 OF 2018 (MV)
                   BETWEEN:

                   SRI. MASTANEE S
                   W/O KADAR PASHA
                   AGED ABOUT 48 YEARS
                   R/AT NO.E-169
                   SREERAMA TEMPLE ROAD
                   DODDAKANNALI
                   BENGALURU-560 035.
                                                                  ...APPELLANT
                   (BY SRI. P S KAILAS SHANKAR., ADVOCATE)

                   AND:

                   1.    SRI. SANTHOSH KUMAR YADAV
                         S/O DOME YADAV
                         R/AT NO.11, HARALUR MAIN ROAD
                         SOMASANDRA PALYA
Digitally signed
by                       H.S.R. LAYOUT
DHANALAKSHMI             SECTOR-2, BENGALURU.
MURTHY
Location: High
Court of
Karnataka          2.    THE UNITED INDIA INS. CO. LTD.
                         REGIONAL OFFICE
                         5TH FLOOR, KRUSHI BHAVAN
                         NRUPATHUNGA ROAD
                         HUDSON CIRCLE
                         BENGALURU-560 027.
                                                               ...RESPONDENTS
                   (BY SRI.A.RAVISHANKAR., ADVOCATE FOR R2:
                   NOTICE TO R1 IS DISPENSED WITH
                   V/O DATED: 27.10.2023)
                            -2-
                                       NC: 2023:KHC:38093
                                     MFA No. 1581 of 2018




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:22.06.2017
PASSED IN MVC NO.2006/2016         ON THE FILE OF XIX
ADDITIONAL SCJ AND MACT (SCCH-17) 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

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 22.06.2017 passed by MACT, Bangalore in MVC

No.2006/2016.

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

stated are that on 28.01.2016 at about 6.00 a.m. when

the claimant was proceeding on the extreme left side of

27th Main, HSR Layout, 1st Sector, near HSR Layout police

station, at that time, a motorcycle bearing registration

No.KA-01/EN-0073 being ridden by its rider at a high

speed and in a rash and negligent manner, dashed to the

NC: 2023:KHC:38093 MFA No. 1581 of 2018

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 she 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

riding of the offending vehicle by its rider.

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

the policy. The age, avocation and income of the claimant

NC: 2023:KHC:38093 MFA No. 1581 of 2018

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 Nos.1 and 3 did not appear before

the Tribunal inspite of service of notice and were 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 herself was examined as PW-1

and Dr.Girish G. was examined as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P17. On behalf of the

respondents, neither any witness was examined nor got

exhibited documents. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident took

place on account of rash and negligent riding of the

offending vehicle by its rider, as a result of which, the

claimant sustained injuries. The Tribunal further held that

NC: 2023:KHC:38093 MFA No. 1581 of 2018

the claimant is entitled to a compensation of Rs.1,95,655/-

along with interest at the rate of 7.5% p.a. (excluding

future medical expenses) 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 she was

working as maid servant and earning Rs.12,000/- per

month, but the Tribunal has taken the notional income as

merely as Rs.7,000/- p.m.

b) Secondly, the claimant has examined the doctor as

PW-2. The doctor in his evidence has stated that the

claimant has suffered disability of 10% to whole body. But

the Tribunal has taken the whole body disability at 7%,

which is on the lower side.

c) Lastly, due to the accident, the claimant has

sustained grievous injuries. She was treated as inpatient

NC: 2023:KHC:38093 MFA No. 1581 of 2018

for a period of 2 days. Even after discharge from the

hospital, she was not in a position to discharge her regular

work. She 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.

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.12,000/- per month, she has not produced any

documents to establish her income. In the absence of

proof of income, the Tribunal has rightly assessed the

income of the claimant notionally.

b) Secondly, even though the doctor has assessed the

disability at 10%, the injury suffered by the clamant is

only in respect of facial injury and there is no fracture.

Therefore, the Tribunal considering the injuries sustained

NC: 2023:KHC:38093 MFA No. 1581 of 2018

by the claimant and evidence of the doctor, has rightly

assessed the whole body disability at 7%.

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.

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 7.5% 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.

NC: 2023:KHC:38093 MFA No. 1581 of 2018

9. It is not in dispute that the claimant has sustained

injuries in the road traffic accident occurred on 28.01.2016

due to rash and negligent driving of the offending vehicle

by its driver.

10. The claimant claims that he was earning Rs.12,000/-

per month. She has not produced any documents to prove

her 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 2016, the notional

income has to be taken at Rs.9,500/- p.m.

11. As per wound certificate, the claimant has sustained

fracture of both nasal bones and bony nasal septum and

undisplaced fracture of medial wall of right orbit. The

doctor in his evidence has stated that the claimant has

suffered disability of 10% to whole body. Therefore, taking

into consideration the deposition of the doctor and injuries

mentioned in the wound certificate, I am of the opinion

NC: 2023:KHC:38093 MFA No. 1581 of 2018

that the whole body disability is assessed at 10%. 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.1,48,200/- (Rs.9,500*12*13*10%) 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 2

months. Therefore, the claimant is entitled for

compensation of Rs.19,000/- (Rs.9,500*2 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. She was

inpatient in the hospital for a period of 2 days. She has

suffered lot of pain during treatment and she has to suffer

with the disability stated by the doctor throughout her life.

Considering the same, I am inclined to enhance the

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NC: 2023:KHC:38093 MFA No. 1581 of 2018

compensation awarded by the Tribunal under the head of

'loss of amenities' from Rs.20,000/- to Rs.40,000/-.

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                  50,000         50,000

 Medical expenses                     10,215         10,215

 Food, nourishment,                    5,000          5,000
 conveyance and
 attendant charges

 Loss of income during                14,000         19,000
 laid up period

 Loss of amenities                    20,000         40,000

 Loss of future income                76,440       1,48,200
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                                                 NC: 2023:KHC:38093
                                            MFA No. 1581 of 2018




     Future medical expenses              20,000          20,000

                   Total                1,95,655       2,92,415

16. 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.2,92,415/-.

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