Karnataka High Court

Lakshmikantha vs Yogananda on 29 July, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                           NC: 2024:KHC:29680
                                                        MFA No. 7708 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. 7708 OF 2018 (MV)
                      BETWEEN:

                      LAKSHMIKANTHA
                      S/O DODDEGOWDA
                      AGED ABOUT 23 YEARS
                      R/AT BAGESHAPURA VILLAGE
                      GANDASI HOBLI, ARASIKRE TALUK
                      PRESENTLY R/AT B.T.KOPPALU
                      ARASIKERE ROAD, HASSAN.
                                                                  ...APPELLANT
                      (BY SRI. PAVAN T G.,ADVOCATE)

                      AND:

                      1.    YOGANANDA
                            S/O DYAVEGOWDA
                            BAGESHAPURA VILLAGE
Digitally signed by         GANDASI HOBLI
HEMALATHA A                 ARASIKERE TALUK
Location: HIGH              HASSAN DISTRICT.
COURT OF
KARNATAKA
                      2.    THE MANAGER
                            UNITED INDIA INSURANCE COMPANY LTD.,
                            2ND FLOOR, VENKATESHWARA BUILDING
                            B.M.ROAD, HASSAN-573 201
                                                               ...RESPONDENTS
                      (BY SRI. SREEKANTA RAO., ADVOCATE FOR R2:
                      NOTICE TO R1 IS SERVED AND UNREPRESENTED)
                           THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                      AGAINST THE JUDGMENT AND AWARD DATED:21.07.2018
                      PASSED IN MVC NO.1888/2017 ON THE FILE OF THE II
                      ADDITIONAL DISTRICT & SESSIONS JUDE & ADDITIONAL
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                                            NC: 2024:KHC:29680
                                        MFA No. 7708 of 2018




MACT, HASSAN, 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

dated 21.07.2018 passed by the II Additional District and

Sessions Court & Additional MACT, Hassan (hereinafter

referred to as 'the Tribunal') in MVC No.1888/2017.

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

stated are that on 05.07.2017 at about 5.00 p.m. when

the claimant was proceeding on motorcycle bearing

registration No.KA-13/Y-8311 as a pillion rider on

Kengattegere Mud road, Bageshpura, at that time, the

rider of the motorcycle rode the same in a rash and

negligent manner, due to which, the motorcycle turned

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turtle. 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 rider of the motorcycle.

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.Abdul Basheer was

examined as PW-2, and got exhibited documents namely

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Ex.P1 to Ex.P17. On behalf of the respondents, neither

any witness was examined nor got exhibited documents.

The Claims Tribunal, by the impugned judgment, inter

alia, held that the accident took place on account of rash

and negligent riding of the motorcycle by its rider, as a

result of which, the claimant sustained injuries. The

Tribunal further held that the claimant is entitled to a

compensation of Rs.2,43,000/- 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 raised the

following contentions:

a) Firstly, the Tribunal erred in assuming the monthly

income of the claimant as Rs.7,000/-, despite evidence

showing he earned Rs.25,000/- per month by working as

an electrician and as an agriculturist.

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

sustained grievous injuries. He was treated as inpatient for

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a period of 7 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 'pain and sufferings' and other incidental

expenses are on the lower side and the Tribunal failed to

award any compensation under the head 'loss of

amenities'.

With the above submissions, learned counsel for the

appellant sought to allow the appeal.

7. 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.25,000/- 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.

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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, the injuries suffered by the claimant are

minor in nature and he was inpatient for only 7 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

'pain and sufferings' and other incidental expenses are just

and reasonable and it does not warrant interference.

With the above submissions, 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 05.07.2017

due to rash and negligent driving of the rider of the

motorcycle.

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10. The claimant claims that he was earning Rs.25,000/-

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

fracture trochanter left, deep laceration face and mild

head injury. The doctor in his evidence has stated that the

claimant has suffered disability of 30% to particular limb.

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

10%. The claimant was aged about 22 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.2,37,600/- (Rs.11,000*12*18*10%) on account of

'loss of future income'.

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12. 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'.

13. The claimant was hospitalized as an inpatient for

more than 7 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 awarded compensation of Rs.30,000/-

under the head '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:

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

Pain and sufferings 30,000 30,000

Medical expenses 37,994 37,994

Food, nourishment, 10,000 10,000 conveyance and attendant charges

Loss of income during 3,500 33,000 laid up period

Loss of amenities 0 30,000

Loss of future income 151,200 237,600

Future medical expenses 10,300 10,300

Total 242,994

Rounded off to 243,000 388,894

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