Karnataka High Court

Sri Vijaya Poojary vs The Managing Partner on 29 July, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                             NC: 2024:KHC:29770
                                                          MFA No. 2349 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. 2349 OF 2019 (MV)
                      BETWEEN:
                      SRI VIJAYA POOJARY
                      AGED ABOUT 37 YEARS
                      S/O LATE SHANKARA POOJARY
                      R/O BOBBARYANAMAKKI MANE
                      MARKODU, KOTESHWARA VILLAGE
                      KUNDAPURA TALUK, UDUPI DISTRICT-576201.
                                                                   ...APPELLANT
                      (BY SRI. GURURAJA SHETTY K .,ADVOCATE)

                      AND:
                      1. THE MANAGING PARTNER
                         AGED ABOUT 32 YEARS
                         M/S DURGAMBA MOTORS
                         NH-66 HANGALURU
                         KUNDAPURA TALUK
                         UDUPI DISTRICT-576201.
Digitally signed by
HEMALATHA A           2.    THE NEW INDIA INSURANCE CO.LTD
Location: HIGH              KUNDAPURA BRANCH
COURT OF
KARNATAKA                   KUNDAPURA TALUK-576201
                            REP BY ITS DIVISIONAL MANAGER
                                                                ...RESPONDENTS
                      (BY SRI.ANUP SEETHARAMA RAO., ADVOCATE FOR R2:
                      NOTICE TO R1 IS DISPENSED WITH
                      V/O DATED: 19.06.2023)
                             THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                      AGAINST    THE   JUDGMENT   AND   AWARD   DATED:10.10.18
                      PASSED IN MVC NO.676/17 ON THE FILE OF THE ADDITIONAL
                      DISTRICT JUDGE & ADDITIONAL MACT, UDUPI [SITTING AT
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                                       NC: 2024:KHC:29770
                                     MFA No. 2349 of 2019




KUNDAPURA], KUNDAPURA, 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 10.10.2018 passed by MACT, Udupi (Sitting at

Kundapura) in MVC No.676/2017.

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

stated are that on 09.06.2017 when the claimant was

proceeding on motorcycle bearing registration No.KA-30-

H-7330 from Kundapura side to Ampar side near Primary

School, Nellikatte, at that time, private bus bearing

registration No.KA-20-C-3257 being driven by its driver at

a high speed and in a rash and negligent manner, dashed

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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.Ullas Shetty was

examined as PW-2, and got exhibited documents namely

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Ex.P1 to Ex.P11. On behalf of the respondents, no witness

was examined but got exhibited documents 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.8,07,000/- 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 submitted

as follows:

a) Firstly, the Tribunal erred in assuming the monthly

income of the claimant as Rs.9,000/-, despite evidence

showing he earned Rs.18,000/- per month by working as a

mason.

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b) Secondly, the claimant has examined the doctor as

PW-2. Based on the evidence of the doctor, the Tribunal

has rightly assessed the whole body at 35%.

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. But the

Tribunal has failed to grant any compensation towards

'loss of amenities'. Considering the same, the

compensation awarded by the Tribunal under the head of

'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 submitted as follows:

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

Rs.18,000/- 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, PW-2 is not a doctor, who treated the

claimant, he is a Medico Legal Consultant and not a

surgeon. Consequently, the whole body disability assessed

by the Tribunal at 35% is excessive.

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.

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

injuries in the road traffic accident occurred on 09.06.2017

due to rash and negligent driving of the offending vehicle

by its driver.

10. The claimant claims that he was earning Rs.18,000/-

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

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

11. As per wound certificate, the claimant has sustained

bilateral black eye present, reddish contusion on the lower

lip, reddish contusion on the back of neck with central cord

syndrome with partial paralysis of all four limbs, reddish

contusion on right shoulder, reddish contusion on left

shoulder. The doctor in his evidence has stated that the

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claimant has suffered disability of 35% to whole body. The

Tribunal after considering the evidence of PW-2 and

materials available on record has rightly assessed the

whole body disability at 35%. The claimant is aged about

32 years at the time of the accident and multiplier

applicable to his age group is '16'. Thus, the claimant is

entitled for compensation of Rs.739,200/-

(Rs.11,000*12*16*35%) 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.66,000/- (Rs.11,000*6 months)

under the head 'loss of income during laid up period' as

against Rs.4,800/- awarded by the Tribunal towards 'bed

rest' and Rs.54,000/- awarded towards 'loss of earning

during treatment period'.

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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 award a sum of Rs.30,000/- under the

head of 'loss of amenities'.

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                  55,000         55,000
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                                                   NC: 2024:KHC:29770





     Medical expenses                      72,399              72,399

     Food, nourishment,                    16,000              16,000
     conveyance and
     attendant charges

     Loss of income during                 58,800              66,000
     laid up period including
     bed rest

     Loss of amenities                             0           30,000

     Loss of future income                604,800             739,200

                   Total                  806,999             978,599

          Rounded off                     807,000             978,600

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