Karnataka High Court

Sri. K. A. Raju vs Robin Joseph on 29 July, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                             NC: 2024:KHC:29766
                                                           MFA No. 5672 of 2019




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 29TH DAY OF JULY, 2024

                                               BEFORE
                           THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                      MISCELLANEOUS FIRST APPEAL NO. 5672 OF 2019 (MV)
                      BETWEEN:

                      SRI. K. A. RAJU
                      S/O. SRI. ANJANEYA SHETTY
                      AGED ABOUT 67 YEARS
                      BUSINESS
                      R/O. SHANKARPURA
                      CHIKKAMAGALURU TOWN
                      CHIKKAMAGALURU
                                                                   ...APPELLANT
                      (BY SRI. PRADEEP NAIK K.,ADVOCATE)

                      AND:

                      1.    ROBIN JOSEPH
                            S/O. JOSEPH K M
                            ENGINEER
Digitally signed by         R/AT NO. 19, LIJORA NILAYA
HEMALATHA A                 DWARKANAGAR, CHIKKABANAVARA
Location: HIGH              HESARAGHATTA MAIN ROAD
COURT OF
KARNATAKA                   BENGLAURU-90.

                      2.    THE MANAGER
                            THE UNITED INDIA INSURANCE CO LTD
                            CRESCENT COURT
                            1ST FLOOR, CHIKKAMAGALURU.

                      3.    THE MANAGER
                            TATA AIG GENERAL INSURANCE CO LTD
                            2ND FLOOR,JP & DEVI JAMBUKESHWAR ARCADE
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                                        NC: 2024:KHC:29766
                                      MFA No. 5672 of 2019




      NO. 69, MILLERS ROAD
      BENGALURU
                                           ...RESPONDENTS
(BY SRI. B PRADEEP., ADVOCATE FOR R3:
NOTICE TO R1 & R2 ARE DISPENSED WITH
V/O DATED: 23.06.2023)
       THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:25.01.2019
PASSED IN MVC NO.323/2017 ON THE FILE OF THE 1ST
ADDITIONAL       SENIOR       CIVIL     JUDGE,     AMACT,
CHIKKAMAGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR    COMPENSATION    AND    SEEKING   ENHANCEMENT    OF
COMPENSATION.

       THIS APPEAL, COMING ON FOR ORDERS, 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 25.01.2019 passed by MACT, Chikkamagaluru in

MVC No.323/2017.

NC: 2024:KHC:29766

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

stated are that on 26.11.2016 when the claimant was

proceeding on TVS XL motorcycle bearing registration

No.KA-18-J-9614 near Magadi Village on Tank Bund road

towards Belur, at that time, car bearing registration

No.KA-04-MK-5787 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.

4. Upon service of notice, the respondents appeared

through counsel and respondent Nos.2 and 3 filed written

NC: 2024:KHC:29766

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-1, and Dr.Ullas Shetty was

examined as PW-2, and got exhibited documents namely

Ex.P1 to Ex.P120. On behalf of the respondents, neither

any witness was examined nor any document was

produced. 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.495,360/-

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

Insurance Company to deposit the compensation amount

along with interest. Being aggrieved, the present appeal

has been filed.

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6. The learned counsel for the claimant has raised the

following contentions:

a) Firstly, the Tribunal erred in assuming the monthly

Income of the claimant as Rs.8,000/-, despite evidence

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

business.

b) Secondly, the claimant has examined the doctor as

PW-2 and doctor has assessed the disability at 58%.

Based on the evidence of the doctor, the Tribunal has

rightly taken the whole body disability at 19.30%.

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

sustained grievous injuries. He was treated as inpatient for

a period of 15 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.

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With the above contentions, learned counsel for the

appellant 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.20,000/- 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 Tribunal considering the injuries

sustained by the claimant and evidence of the doctor, has

rightly assessed the whole body disability at 19.30%.

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

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other incidental expenses are just and reasonable and it

does not warrant interference.

With the above contentions, 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 26.11.2016

due to rash and negligent driving of the offending vehicle

by its driver.

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

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.

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11. As per wound certificate, the claimant has sustained

abrasions over right forearm and leg and contusions over

right leg underlying fracture of tibia and fibula, contusion

over left occipital region, tenderness and swelling. The

doctor in his evidence has stated that the claimant has

suffered disability of 58%. 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 19.30%. The

claimant is aged about 65 years at the time of the

accident and multiplier applicable to his age group is '7'.

Thus, the claimant is entitled for compensation of

Rs.154,014/- (Rs.9,500*12*7*19.30%) 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 5

months. Consequently, the claimant is entitled for

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compensation of Rs.47,500/- (Rs.9,500*5 months) under

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

13. The claimant was hospitalized as an inpatient for

more than 15 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 'loss of amenities' from

Rs.30,000/- to Rs.50,000/-.

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:

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                                                NC: 2024:KHC:29766





                                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                    209,408        209,408

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

     Loss of income during                16,000         47,500
     laid up period

     Loss of amenities                    30,000         50,000

     Loss of future income               129,892        154,014

     Vehicle repair charges                5,060          5,060

     Future medical expenses              20,000         20,000

                   Total                495,360        570,982