Karnataka High Court

Sri. Shivakumaraswamy vs Sri. Egbert G D'Souza on 7 August, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                             NC: 2024:KHC:31516
                                                             MFA No. 88 of 2020




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 7TH DAY OF AUGUST, 2024

                                               BEFORE
                            THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                           MISCELLANEOUS FIRST APPEAL NO. 88 OF 2020 (MV)
                      BETWEEN:

                      1.    SRI. SHIVAKUMARASWAMY
                            S/O LATE ADAVISHARADHYA
                            AGED ABOUT 50 YEARS
                            R/AT ANATHI KODIHALLI VILLAGE
                            BAGUR HOBLI
                            CANNARAYAPATNA TALUK
                            HASSAN DISTRICT-573 201
                                                                   ...APPELLANT
                      (BY SRI. RAJARAMA S., ADVOCATE)

                      AND:

                      1.    SRI. EGBERT G D'SOUZA
                            S/O VALERIAN J D SOUZA
Digitally signed by         AGED ABOUT 64 YEARS
HEMALATHA A                 R/O NO.857
Location: HIGH
COURT OF                    5TH CROSS
KARNATAKA
                            1ST STAGE
                            INDIRANAGAR
                            BENGALORE-560001

                      2.    THE MANAGER
                            UNITED INDIA INSURANCE CO. LTD
                            1ST FLOOR
                            VINAYAKA HEATH COMPLEX
                            NEAR MAIN BUS STAND
                            AZAD ROAD
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                                       NC: 2024:KHC:31516
                                       MFA No. 88 of 2020




     THIRTHAHALLI
     SHIMOGA-577432

     LOCAL ADDRESS
     THE MANAGER
     UNITED INDIA INSURANCE CO.LTD.
     MADHU COMPLEX
     MYSORE AND TALUK
     HASSAN DISTRICT
                                            ...RESPONDENTS
(BY SRI.SANJAY KUMAR A.,         ADVOCATE   FOR   R1:   SRI
O.MAHESH, ADVOCATE FOR R2)



      MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED. 23.08.2019, PASSED IN MVC
NO.216/2018, ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND MACT, CHANNARAYAPATNA, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

    THIS APPEAL, COMING ON FOR ADMISSION, 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

NC: 2024:KHC:31516

dated 23.08.2019 passed by the Additional Senior Civil

Judge and MACT, Channapatna (hereinafter referred to as

'the Tribunal') in MVC No.216/2018.

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

stated are that on 20.11.2017 at about 12.15 p.m., when

the claimant was proceeding on the motorcycle bearing

registration No.KA-06/R-2776 from Kodihalli village on NH

206 near SBI Bank of Biligere Village, at that time, a car

bearing registration No.KA-03/MP-3678 being driven by

its driver at a high speed and in a rash and negligent

manner, dashed to the 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

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.

NC: 2024:KHC:31516

4. Upon service of notice, the respondent Nos.1 and 2

appeared through counsel and filed separate written

statements denying the averments made in the claim

petition.

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-2, and Dr.S.C.Kiran as CW-1 and,

got exhibited documents namely Ex.P1 to Ex.P19 and C1

to C10. On behalf of the respondents, neither any witness

was examined nor got marked any documents. 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.1,32,168/- along with interest at the rate of 9% p.a.

and directed the Insurance Company to deposit the

NC: 2024:KHC:31516

compensation amount along with interest. Being

aggrieved, the present appeal has been filed.

4. The learned counsel for the claimant raised the

following contentions:

a) Firstly, the Tribunal erred in assuming the monthly

income of the claimant as Rs.7,500/-, despite claiming

that he earned Rs.20,000/- per month by doing

agriculture.

b) Secondly, due to the accident, the claimant has

sustained grievous injuries. He was treated as inpatient for

a period of 19 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.

With the above submissions, learned counsel for the

appellant sought to allow the appeal.

NC: 2024:KHC:31516

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

Insurance Company raised the following counter-

contentions:

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

Rs.7,500/- 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 Tribunal considering the injuries

sustained by the claimant and evidence of the doctor, has

rightly assessed the whole body disability at 9.28%.

c) Thirdly, the injuries suffered by the claimant are

minor in nature and he was inpatient for only 19 days.

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 warrant interference.

NC: 2024:KHC:31516

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 9% p.a. on the

compensation amount appears excessive.

With the above submissions, learned counsel for the

Insurance Company sought to dismiss the appeal.

6. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal and the

original records.

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

injuries in the road traffic accident occurred on 20.11.2017

due to rash and negligent driving of the offending vehicle

by its driver.

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

per month. But he has not produced any documents to

substantiate his claim. Therefore, in the absence of proof

NC: 2024:KHC:31516

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

2017, notional income shall be taken at Rs.11,000/- p.m.

9. As per wound certificate, the claimant has deficient

movement at left knee and left ankle joint, difficulty to sit

crossed legs, to sit for long time, for walking and climbing

stairs. The doctor in his evidence has stated that the

claimant has suffered disability of 27.85% to the left leg

and 9.28% whole body disability. Therefore, taking into

consideration the deposition of the doctor and injuries

mentioned in the wound certificate, I am of the opinion

that the whole body disability can be taken at 10%. The

claimant was aged about 57 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.1,18,800/- (Rs.11,000*12*9*10%) on account of 'loss

of future income'.

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10. The nature of injuries indicates that the claimant

must have been under rest and treatment for a period of

three months. Consequently, the claimant is entitled for

compensation of Rs.33,000/- (Rs.11,000*3 months) under

the head 'loss of income during laid up period'.

11. The claimant was hospitalized as an inpatient for

more than 19 days in the hospital and subsequently

received further treatment. 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 enhance the compensation awarded by

the Tribunal under the head of 'pain and sufferings' from

Rs.20,000/- to Rs.30,000/- and under the head of 'loss of

amenities' from Rs.10,000/- to Rs.20,000/-.

12. Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

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NC: 2024:KHC:31516

13. 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                    20,000         30,000

 Food, nourishment,                     12,000         12,000
 conveyance and
 attendant charges

 Loss of income during                  15,000         33,000
 laid up period

 Loss of amenities                      10,000         20,000

 Loss of future income                  75,168       1,18,800

                 Total                1,32,168      2,13,800

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