Karnataka High Court

Smt Vasanthi Shetty vs Sri Udaya Poojary on 1 August, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                              NC: 2024:KHC:30513
                                                           MFA No. 4962 of 2018




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 1ST DAY OF AUGUST, 2024

                                              BEFORE
                           THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                       MISCELLANEOUS FIRST APPEAL NO. 4962 OF 2018 (M)
                      BETWEEN:

                      SMT VASANTHI SHETTY
                      AGED ABOUT 32 YEARS
                      W/O DINESH SHETTY
                      R/AT MAVINAGULI
                      NEERKODLU GULVADI VILLAGE
                      KUNDAPURA TALUK
                      UDUPI DISTRICT-576 283
                                                                    ...APPELLANT
                      (BY SRI.NAGARAJA HEGDE., ADVOCATE)

                      AND:

                      1.    SRI UDAYA POOJARY
                            AGED ABOUT 46 YEARS
                            S/O GOVINDA POOJARY
Digitally signed by         R/AT KALNADI HOUSE
HEMALATHA A                 NERALAKATTE, KARTKUNJE VILLAGE
Location: HIGH              KUNDAPURA TALUK
COURT OF                    UDUPI DISTRICT-576 283.
KARNATAKA

                      2.    THE NEW INDIA ASSURANCE CO. LTD
                            KUNDAPURA BRANCH
                            PUSHPA BUILDING, Y.M.SHETTY
                            KUNDAPURA-576 201
                            REP. BY ITS BRANCH MANAGER.
                                                                 ...RESPONDENTS
                      (BY SRI.B.C. SEETHARAMA RAO.,ADVOCATE FOR R2:
                          NOTICE TO R1 IS SERVED AND UNREPRESENTED)
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                                        NC: 2024:KHC:30513
                                      MFA No. 4962 of 2018




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:02.12.2017
PASSED IN MVC NO.902/2016 ON THE FILE OF          THE
ADDITIONAL DISTRICT JUDGE, ADDITIONAL MACT, UDUPI
(SITTING AT KUNDAPURA), KUNDAPURA, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:   HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

                    ORAL 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 challenging by the judgment dated

02.12.2017 passed by the MACT, Udupi (Sitting at

Kundapura) in MVC No.902/2016.

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

stated are that on 01.06.2016 at about 17.00 hours, the

claimant was standing in front of Smt.Devaki Shetty

House, Mavinaguli, Neerkondlu, Gulvadi Village, at that

time, the driver of Ace mini Goods Rickshaw bearing

Registration No.KA-20-C-5970 drove the same in reverse

side with high speed, rash and negligent manner. Due to

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over speed, the driver of the said vehicle lost control over

the vehicle and dashed against the claimant from its back

side. 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 she spent

significant amount towards medical expenses, conveyance

charges and other related costs. It was further pleaded

that the accident occurred solely on account of rash and

negligent driving of the offending vehicle by its driver.

4. Upon service of notice, the respondent No.2

appeared through counsel and filed written statement

denying the averments made in the claim petition. The

respondent No.1, despite service of notice, did not appear

before the Tribunal and was placed ex-parte.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter, recorded

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the evidence. The claimant, in order to prove the case,

examined herself as PW-1, and Dr.Durgaprasad was

examined as PW-2, and got exhibited documents namely

Ex.P1 to Ex.P14. On behalf of the respondents, no witness

was examined but got exhibited a document namely

Ex.R1. 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.9,28,155/- along with

interest at the rate of 6% p.a. and directed the Insurance

Company to deposit the compensation amount along with

interest excluding the interest on future medical expenses.

Being aggrieved, the present appeal has been filed.

6. The learned counsel for the claimant has raised the

following contentions:

a) Firstly, the claimant asserts that she was earning

Rs.15,000/- per month by working as Coolie. However, the

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Tribunal has erred in taking the income as merely as

Rs.9,000/- per month.

b) Secondly, the claimant has examined the doctor as

PW-2. The Tribunal undervalued the claimant's whole-body

disability at 33.5%, contradicting the evidence of the

doctor that the claimant suffered 67% disability to the left

lower limb.

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

sustained grievous injuries. She was treated as inpatient

for a period of 13 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. Due

to the said disability, she is unable to do her day to day

work. Therefore, she is entitled for addition of future

prospects. In support of his contention, he has relief upon

the judgment reported in 2022(4)KAR L.J.627.

d) Fourthly, considering the evidence of the parties and

material available on record, the compensation awarded

by the Tribunal under the heads of 'loss of amenities',

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'pain and sufferings' and other incidental expenses are on

the lower side.

With the above contentions, the learned counsel

sought to allow the appeal.

7. On the other hand, the learned counsel for the

Insurance Company has raised the following counter-

contentions:

a) Firstly, the assertion of claimant that he was earning

Rs.15,000/- per month, remains unsubstantiated due to

lack of documentary evidence. In the absence of proof of

income, the Tribunal has assessed the income of the

claimant notionally.

b) Secondly, the claimant examined the doctor as PW-2.

He has deposed that the claimant suffered 67% disability

to the left lower limb. To assess the whole body disability,

1/3rd of limb disability has to be considered. But the

Tribunal has assessed the whole body disability at 33.5%

is on the higher side. There is no evidence to show that

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the said disability has affected his future earning capacity.

The Tribunal has rightly not granted any compensation

under future prospects.

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 on higher side.

With the above contentions, the learned counsel

sought to dismiss 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 01.06.2016

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.15,000/-

per month. But he has not produced any documents to

substantiate his claim. Therefore, in the absence of proof

of income, notional income has to be assessed. According

to the guidelines issued by the Karnataka State Legal

Services Authority, for accidents occurred in the year

2016, notional income shall be taken at Rs.9,500/- p.m.

11. As per wound certificate, the claimant has sustained

fracture of distal tibia left leg, fracture of distal fibula left

leg, swelling, gross deformity and bony tenderness. In

respect of the disability is concerned, the doctor in his

evidence has stated that the claimant suffered 67%

disability to the left lower 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 33.5%.

Considering the evidence of PW-1, injuries suffered by the

claimant and medical records, the Tribunal has rightly

come to the conclusion that the claimant is not entitled for

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future prospects. The claimant is aged about 30 years at

the time of the accident and multiplier applicable to his

age group is '17'. Thus, the claimant is entitled for

compensation of Rs.6,49,230/-(Rs.9,500*12*17*33.5%)

on account of 'loss of future income'.

12. Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. Considering

the prolonged pain during treatment as well as the

permanent disability certified by the doctor, I am inclined

to grant the compensation of Rs.30,000/- under the head

of 'loss of amenities'.

13. Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

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14. 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                  1,00,000      1,00,000

 Medical expenses                       78,193        78,193

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

 Loss of income during                   3,900         3,900
 treatment

 Loss of earning during                 81,000        81,000
 bed rest

 Loss of amenities                          0         30,000

 Loss of future income                6,15,060      6,49,230

 Future medical expenses                40,000        40,000

                 Total                9,28,153     9,92,323

15. In the result, the following order is passed: