Karnataka High Court

Bharath vs Sanjeeva Shetty on 2 August, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                         NC: 2024:KHC:30620
                                                      MFA No. 8854 of 2019




                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 2ND DAY OF AUGUST, 2024

                                            BEFORE
                         THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                    MISCELLANEOUS FIRST APPEAL NO. 8854 OF 2019 (MV)
                   BETWEEN:
                   BHARATH
                   AGED ABOUT 20 YEARS
                   S/O MADESH
                   R/AT DEVI DAYA P STORE
                   GOLIOKATTE ROAD, NANDALIKE VILLAGE
                   KARKALA TALUK 574104

                                                               ...APPELLANT

                   (BY SRI. PAVANA CHANDRA SHETTY H.,ADVOCATE)

                   AND:
                   1. SANJEEVA SHETTY
                      AGED ABOUT 61 YEARS
                      S/O SUBRAYA
                      R/AT A 1403, KAILASH TOWER
                      OPP BOHRA COLONY, M G ROAD
                      KANDIVALI (W), MUMBAI 400067.
Digitally signed by
HEMALATHA A
Location: HIGH
                    2.    THE DIVISIONAL MANAGER
COURT OF                  FUTURE GENERAL INDIA INSURANCE CO. LTD.
KARNATAKA                 1ST FLOOR, JALARAM BUSINESS CENTRE
                          GANJAWALLA LANE, BORIVALI (W)
                          MAHARASHTRA 400092
                                                             ...RESPONDENTS
                   (BY SRI.O.MAHESH., ADVOCATE R2:
                   NOTICE TO R1 IS DISPENSED WITH
                   V/O DATED: 04.02.2022)
                        THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                   AGAINST THE JUDGMENT AND AWARD DATED: 28.03.2019
                   PASSED IN MVC NO.406/2018 ON THE FILE OF THE SENIOR
                   CIVIL JUDGE AND ADDITIONAL MACT, KARKALA,      PARTLY
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                                       NC: 2024:KHC:30620
                                     MFA No. 8854 of 2019




ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

    THIS APPEAL, COMING ON FOR 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 being aggrieved by the judgment

dated 28.03.2019 passed by the Senior Civil Judge &

AMACT, Karkala in MVC No.406/2018.

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

stated are that on 02.05.2015 at about 05.30 p.m., the

claimant was traveling as an inmate/passenger in a

Maruthi Alto Car bearing Registration No.MH-02-BG-0315

from Belman town towards Nitte Doopasdakatte side in

Padubidri-Karkala State Highway and when the said car

reached in front of Nandalike Board High School, due to

rash and negligent manner of the driver, the said car

capsized over the left rain water channel. As a result of

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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

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

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

examined himself as PW-1, and Dr.Monappa Naik A was

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examined as PW-2, and got exhibited documents namely

Ex.P1 to Ex.P21 and Ex.C1 to Ex.C4. On behalf of the

respondents, neither examined any witness nor exhibited

any document. 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.3,69,320/-

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, at the time of the accident, the claimant was

aged about 19 years and was studying I PUC at Belman

Junior College, Belman Village. In addition to his studies,

he was employed with Mr. Sudhir Kumar Shetty, the

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proprietor of Sanath Caterers, Belman, with a monthly

income of Rs.10,000/-. However, the Tribunal's

assessment of his monthly income at Rs.4,500/- appears

to be on the lower side..

b) Secondly, the claimant has examined the doctor as

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

disability at 9%, contradicting the evidence of the doctor

that the claimant suffered 29% disability to right lower

limb locomotor function permanently.

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

sustained grievous injuries. He was treated as inpatient for

a period of 14 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, the learned counsel for the appellant sought

to allow the appeal.

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

Insurance Company has raised the following counter-

contentions:

a) Firstly, at the time of the accident, the claimant was

aged about 19 years old and was studying I PUC at

Belman Junior College. However, no documentary

evidence has been submitted to confirm the claimant's

employment with Mr. Sudhir Kumar Shetty, the proprietor

of Sanath Caterers, Belman, or his alleged monthly income

of Rs.10,000/-. Moreover, the claimant has not examined

the employer as a witness. Consequently, due to the lack

of proof of income, the Tribunal has notionally assessed

the claimant's income.

b) Secondly, the Tribunal considering the injuries

sustained by the claimant and evidence of the doctor, has

rightly assessed the whole body disability at 9%.

c) Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the overall compensation awarded by the

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Tribunal is just and reasonable and it does not warrant

interference.

d) Lastly, in light 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 appears excessive. Hence, the

learned counsel for the Insurance Company 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 02.05.2015

due to rash and negligent driving of the offending vehicle

by its driver.

10. Even though the claimant claims that he was

studying I PUC and was working with Mr. Sudhir Kumar

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Shetty, the proprietor of Sanath Caterers, Belman, with a

monthly income of Rs.10,000/-, 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 2015, notional income shall be taken

at Rs.9,000/- p.m.

11. As per wound certificate, the claimant has sustained

fracture shaft of right femur, fracture right tibia and lateral

malleolus, soft tissue injury of face, closed head injury,

laceration over chin, cheek, forehead. The doctor in his

evidence has stated that the claimant suffered 29%

disability to right lower limb locomotor function

permanently. 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 9%. The claimant is aged about 9years

at the time of the accident and multiplier applicable to

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his age group is '19'. Thus, the claimant is entitled for

compensation of Rs.1,74,960/- (Rs.9,000*12*18*9%)

on account of 'loss of future income'.

12. The nature of injuries indicates that the claimant

must have been under rest and treatment for a period of 3

months. Consequently, the claimant is entitled for

compensation of Rs.27,000/- (Rs.9,000*3 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. He was

hospitalized as an inpatient for more than 22 days in the

hospital. Considering the prolonged pain during treatment

as well as the permanent disability certified by the doctor,

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/-.

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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                    75,000         75,000

 Medical expenses                     1,31,740       1,31,740

 Food, nourishment,                     25,000         25,000
 conveyance and
 attendant charges

 Loss of income during                  20,100         27,000
 laid up period

 Loss of amenities                      30,000         40,000

 Loss of future income                  87,480       1,74,960

                 Total                3,69,320      4,73,700

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