Karnataka High Court

Imran vs Jai Prakash on 29 July, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                            NC: 2024:KHC:29763
                                                          MFA No. 1804 of 2018




                           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. 1804 OF 2018 (MV)


                      BETWEEN:
                      IMRAN
                      S/O KHASIM SAB
                      AGED ABOUR 24 YEARS
                      R/AT HUNASEHALLI GRAMA
                      GOWDAGERE HOBLI
                      SIRA TALUK TUMAKURU DISTRICT-572137
                                                                  ...APPELLANT
                      (BY SRI. SHANTHARAJ K.,ADVOCATE)

                      AND:
                      1. JAI PRAKASH
                         S/O RAMACHANDRAIAH
                         AGED ABOUT 49 YERS
                         R/AT HOSAPALYA
                         BUKKAPATNA HOBLISIRA TALUK
                         TUMAKURU DISTRICT-572137.
Digitally signed by
HEMALATHA A
Location: HIGH        2.    HDFC ERGA GENERAL INSURANCE COMPANY LTD
COURT OF                    REPRESENTED BY ITS MANAGER
KARNATAKA
                            2ND FLOOR, GENEVA HOUSE
                            CUNNINGHAM ROAD, BENGALURU-560052
                                                             ...RESPONDENTS
                      (BY SRI.C.S. HIRMATH., ADVOCATE FOR R1:
                      SRI. H.S. LINGARAJ, ADVOCATE FOR R2)


                             THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                      AGAINST THE JUDGMENT AND AWARD DATED:04.11.2016
                      PASSED IN MVC NO.1422/2014 ON THE FILE OF SENIOR CIVIL
                             -2-
                                          NC: 2024:KHC:29763
                                        MFA No. 1804 of 2018




JUDGE AND ADDITIONAL MACT,AND J.M.F.C., SIRA           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 being aggrieved by the judgment

dated 04.11.2016 passed by MACT, Sira in MVC

No.1422/2014.

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

stated are that on 14.12.2012 when the claimant was

standing alone along with his motorcycle on the left side of

Herur-Javagondanahalli road, Sira Taluk, at that time,

lorry bearing registration No.KA-06-C-5811 being driven

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

NC: 2024:KHC:29763

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 filed 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-1, and Dr.Sridhar was examined

as PW-2, and got exhibited documents namely Ex.P1 to

NC: 2024:KHC:29763

Ex.P9. On behalf of the respondents, no witness was

examined but got exhibited documents namely Ex.R1 and

Ex.R2. 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.160,600/- 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.

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.6,000/-, despite evidence

showing he earned Rs.15,000/- per month by doing sheep

business.

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b) Secondly, the claimant has examined the doctor as

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

disability at 10%, contradicting the evidence of the doctor

that the claimant suffered 45% disability to particular limb

and 15% to whole body.

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

sustained grievous injuries. He was treated as inpatient.

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 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:

NC: 2024:KHC:29763

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 Tribunal considering the injuries

sustained by the claimant and evidence of the doctor, has

rightly assessed the whole body disability at 10%.

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 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.

NC: 2024:KHC:29763

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

injuries in the road traffic accident occurred on 14.12.2012

due to rash and negligent driving of the offending vehicle

by its driver.

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

2012, notional income shall be taken at Rs.7,000/- p.m.

11. As per wound certificate, the claimant has sustained

fracture on left medial malleolus, fracture of right 5th

metatarsal bone and swelling. The doctor in his evidence

has stated that the claimant has suffered disability of

45% to particular limb and 15% to whole body. Therefore,

taking into consideration the deposition of the doctor and

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injuries mentioned in the wound certificate, the whole

body disability can be taken at 15%. The claimant is aged

about 20 years at the time of the accident and multiplier

applicable to his age group is '18'. Thus, the claimant is

entitled for compensation of Rs.226,800/-

(Rs.7,000*12*18*15%) 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 2

months. Consequently, the claimant is entitled for

compensation of Rs.14,000/- (Rs.7000*2 months) under

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

13. The claimant was hospitalized as an inpatient 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

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the compensation awarded by the Tribunal under the head

of 'pain and sufferings' from Rs.10,000/- to Rs.30,000/-

and under the head of 'loss of amenities' from Rs.10,000/-

to Rs.30,000/-.

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:

                            As awarded       As awarded
                              by the           by this
  Compensation under
                             Tribunal           Court
    different Heads
                                  (Rs.)         (Rs.)

 Pain and sufferings                10,000         30,000

 Medical, Food,                      5,000          5,000
 nourishment,
 conveyance and
 attendant charges

 Loss of income during               6,000         14,000
 laid up period

 Loss of amenities                  10,000         30,000
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                                              NC: 2024:KHC:29763





     Loss of future income              129,600         226,800

                   Total                160,600      305,800

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

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.305,800/-.

d) In respect of liability is concerned, in view of order

dated 15.03.2019 passed by the Tribunal in Review

Mis.No.01/2017, the Insurance Company is directed

to deposit the compensation amount along with

interest @ 6% p.a. from the date of filing of the

claim petition till the date of realization, within a

period of six weeks from the date of receipt of copy

of this judgment.