Karnataka High Court

V Shankar vs Meru Cab Company Ltd on 23 September, 2023

Bench: H T Prasad

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                                                           NC: 2023:KHC:34610
                                                       MFA No. 4523 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 23RD DAY OF SEPTEMBER, 2023

                                            BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 4523 OF 2018 (MV)
                   BETWEEN:

                   V SHANKAR
                   S/O VADIVELU
                   AGED ABOUT 60 YEARS
                   R/AT NO 222, DAYANANDA HUTS
                   JAYANAGAR 1ST BLOCK
                   CHICKPET BENGALURU - 11
                                                                 ...APPELLANT
                   (BY SRI. KAILAS SHANKAR P S.,ADVOCATE)

                   AND:

                   1.    MERU CAB COMPANY LTD
                         NO 90/4, ZOANSHA ALPHA BUILDING
                         2ND FLOOR, ABOVES STAPL
                         MUNEKOLALU, MARATHA HALLI
Digitally signed         OUTER RING ROAD
by
DHANALAKSHMI             BENGALURU - 560037.
MURTHY
Location: High     2.    TATA AIG GENERAL INSURANCE COMPANY LTD
Court of
Karnataka                NO 69, 3RD FLOOR
                         J P & DEVI JAMBUKESHWARA ARCADE
                         MILLERS ROAD, BENGALURU - 560052.
                                                           ...RESPONDENTS
                   (BY SRI.T T SOMASUNDAR., ADVOCATE FOR R1:
                   SRI. B. PRADEEP, ADVOCATE FOR R2)


                           THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                   AGAINST THE JUDGMENT AND AWARD DATED:23.02.2018
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                                           NC: 2023:KHC:34610
                                      MFA No. 4523 of 2018




PASSED IN MVC NO.4585/2016 ON THE FILE OF THE I
ADDITIONAL SMALL CAUSES JUDGE AND MACT, BENGALURU
[SCCH-11] 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 23.02.2018 passed by MACT, Bangalore in MVC No.

4585/2016.

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

stated are that on 10.06.2016 at about 4.00 p.m. the

claimant was proceeding on TVS scooter bearing

registration No.KA-01/J-7652 as a pillion rider on the

Kodichikkanahalli main road. When he reached near Shani

Mahathma temple, at that time, a car bearing registration

No.KA-53/A-1681 being driven by its driver at a high

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

NC: 2023:KHC:34610 MFA No. 4523 of 2018

vehicle of 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 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 riding 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

NC: 2023:KHC:34610 MFA No. 4523 of 2018

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

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 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 himself was examined as PW-1

and Dr.S.A.Somashekara was examined as PW-2 and got

exhibited documents namely Ex.P1 to Ex.P16. On behalf

of the respondents, neither any witness was examined nor

got exhibited documents namely. 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

NC: 2023:KHC:34610 MFA No. 4523 of 2018

claimant sustained injuries. The Tribunal further held that

the claimant is entitled to a compensation of Rs.2,45,183/-

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 he was

working as stone sculpture and earning Rs.20,000/- to

Rs.25,000/- per month, but the Tribunal has taken the

notional income as merely as Rs.8,000/- 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 24% to right upper limb

and 12% to whole body. 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

NC: 2023:KHC:34610 MFA No. 4523 of 2018

a period of 23 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.

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.20,000/- to Rs.25,000/- per month, he has not

produced any documents to establish his 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 deposed that

the claimant has suffered disability of 24% to right upper

limb and 12% to whole body, he has not a treated doctor.

The Tribunal has considered 1/3rd of right upper limb

NC: 2023:KHC:34610 MFA No. 4523 of 2018

disability and 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.

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.

8. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal.

NC: 2023:KHC:34610 MFA No. 4523 of 2018

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

injuries in the road traffic accident occurred on 10.06.2016

due to rash and negligent driving of the offending vehicle

by its driver.

10. The claimant claims that he was earning Rs.20,000/-

to Rs.25,000/- 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

2016, the notional income has to be taken at Rs.9,500/-

p.m.

11. As per wound certificate, the claimant has sustained

right forearm degloving injury with fracture ulnar head.

The doctor in his evidence has stated that the claimant has

suffered disability of 24% to right upper limb and 12% to

whole body. Therefore, taking into consideration the

deposition of the doctor and injuries mentioned in the

NC: 2023:KHC:34610 MFA No. 4523 of 2018

wound certificate, the Tribunal has rightly taken the whole

body disability at 8%. The claimant is aged about 58 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.82,080/- (Rs.9,500*12*9*8%) 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'.

13. The claimant was treated as inpatient for more than

23 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.10,000/- to Rs.18,000/-.

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NC: 2023:KHC:34610 MFA No. 4523 of 2018

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

'pain and sufferings' from Rs.40,000/- to Rs.60,000/-

and under the head of 'loss of amenities' from Rs.20,000/-

to Rs.40,000/-.

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                  40,000         60,000
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                                              NC: 2023:KHC:34610
                                            MFA No. 4523 of 2018




     Medical expenses                     90,063       90,063

     Food, nourishment,                   10,000       18,000
     conveyance and
     attendant charges

     Loss of income during                16,000       28,500
     laid up period

     Loss of amenities                    20,000       40,000

     Loss of future income                69,120       82,080

                   Total                2,45,183     3,18,643

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.

c) The claimant is entitled to a total compensation of

Rs.3,18,643/-.

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.

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NC: 2023:KHC:34610 MFA No. 4523 of 2018