Karnataka High Court
Vidya V Shetty vs Prabhakar Shetty on 13 September, 2023
Bench: H T Prasad
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NC: 2023:KHC:33131
MFA No. 9655 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 9655 OF 2018 (MV)
BETWEEN:
VIDYA V SHETTY
AGED ABOUT 37 YEARS
W/O.VINOD SHETTY
R/AT SHIVADURGA
HIRIYANGADY, KARKALA
KASABA VILLAGE
KARKALA TALUK
UDUPI DISTRICT.
...APPELLANT
(BY SMT. SWATHI G., ADVOCATE FOR
SRI. PAVANA CHANDRA SHETTY H.,ADVOCATE)
AND:
1. PRABHAKAR SHETTY
Digitally signed AGED ABOUT 46 YEARS
by S/O.VENKAPPA SHETTY
DHANALAKSHMI
MURTHY R/AT SRINIVASA
Location: High OPP:RAVALATH TEMPLE ROAD
Court of KARKALA KASABA VILLAGE
Karnataka
UDUPI DISTRICT.
2. THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO.LTD.
UDUPI DIVISIONAL OFFICE
UDUPI.
...RESPONDENTS
(BY SRI.RAVISH BENNI., ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 30.08.2023)
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NC: 2023:KHC:33131
MFA No. 9655 of 2018
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED04.10.2017
PASSED IN MVC NO.170/2017 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND AMACT, KARKALA, 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 4.10.2017 passed by MACT, Karkala in MVC
No.170/2017.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 12.5.2016 when the claimant was
proceeding on motorcycle bearing registration No.KA-20-
EK-2474 as a pillion rider from Karkala towards Anekere in
Karkala-Moodabidri, Mangalore, at that time, the rider of
the said motorcycle in order to avoid hitting against a dry
coconut leaf hanging over the public road, applied brake.
As a result of the aforesaid accident, the claimant fell
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MFA No. 9655 of 2018
down and 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
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
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 herself was examined as PW-1
and Dr.Ullas Shetty was examined as PW-2 and got
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MFA No. 9655 of 2018
exhibited documents namely Ex.P1 to Ex.P16. On behalf
of the respondents, no witness was examined but got
exhibited documents namely Ex.R1. 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 the claimant is entitled to a compensation of
Rs.298,490/- along with interest at the rate of 8% 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 she was
doing tailoring work and earning Rs.30,000/- per month,
but the Tribunal has taken the notional income as merely
as Rs.6,000/- p.m.
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MFA No. 9655 of 2018
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 21% to particular limb.
But the Tribunal has taken the whole body disability at
5%, which is on the lower side.
c) Lastly, due to the accident, the claimant has
sustained grievous injuries. She was treated as inpatient
for a period of 7 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 she was
earning Rs.30,000/- per month, she has not produced any
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MFA No. 9655 of 2018
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, the Tribunal considering the injuries
sustained by the claimant and evidence of the doctor, has
rightly assessed the whole body disability at 5%.
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 8% p.a. on the
compensation amount is on the higher side. Hence, he
sought for dismissal of the appeal.
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MFA No. 9655 of 2018
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 12.5.2016
due to rash and negligent driving of the offending vehicle
by its driver.
10. The claimant claims that she was earning
Rs.30,000/- per month. She 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
2016, the notional income has to be taken at
Rs.9,500/- p.m.
11. As per wound certificate, the claimant has sustained
tenderness over right leg, abrasion 3cm x 3cm over left
knee, diffused swelling and tenderness around left knee
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MFA No. 9655 of 2018
with underlying fracture of upper end (lateral condyle) of
tibia, diffused swelling and tenderness over right hand
with underlying fracture of 5th metacarpal bone. The
doctor in his evidence has stated that the claimant has
suffered disability of 21% to particular limb. Therefore,
taking into consideration the deposition of the doctor and
injuries mentioned in the wound certificate, the whole
body disability has to be taken at 7%. The claimant is
aged about 37 years at the time of the accident and
multiplier applicable to her age group is '15'. Thus, the
claimant is entitled for compensation of Rs.119,700/-
(Rs.9,500*12*15*7%) 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.28,500/- (Rs.9,500*3 months) under
the head 'loss of income during laid up period'.
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MFA No. 9655 of 2018
13. The claimant was treated as inpatient for more than
7 days in the hospital and thereafter, has received further
treatment. Hence, I am inclined to enhance the
compensation awarded under the head of 'food,
nourishment, conveyance and attendant charges' from
Rs.11,000/- to Rs.18,000/-.
14. 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
'loss of amenities' from Rs.30,000/- to Rs.40,000/-.
15. Considering the nature of injuries, the compensation
awarded by the Tribunal under other heads is just and
reasonable.
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MFA No. 9655 of 2018
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 60,000 60,000
Medical expenses 78,240 78,240
Food, nourishment, 11,000 18,000
conveyance and
attendant charges
Loss of income during 16,750 28,500
laid up period
Loss of amenities 30,000 40,000
Loss of future income 67,500 119,700
Future medical expenses 35,000 35,000
Total 298,490 379,440
17. In the result, I pass the following order:
ORDER
a) The appeal is allowed in part.
b) The judgment of the Claims Tribunal is modified.
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MFA No. 9655 of 2018
c) The claimant is entitled to a total compensation of
Rs.379,440/-.
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 excluding
interest for the compensation awarded under the
head of 'future medical expenses'.
f) In view of the order dated 13.9.2023 passed by this
Court, the claimant is not entitled for interest for the
delayed period of 291 days in filing the appeal.
Sd/-
JUDGE
DM
