Karnataka High Court
Sri B Shantharaju vs Sri Nayaz on 30 July, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:30099
MFA No. 8380 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 8380 OF 2018 (MV)
BETWEEN:
SRI B SHANTHARAJU
S/O LATE BHEEMAIAH
AGED ABOUT 51 YEARS
R/AT 7TH CROSS
C.B.LAYOUT, UPPARAHALLY
TUMKAURU CITY.
...APPELLANT
(BY SRI. M PRASHANTH, ADVCOATE FOR
SRI. NAIK N R.,ADVOCATE)
AND:
1. SRI NAYAZ
S/O SRI.HAYATH SAB
AGED ABOUT 41 YEARS
Digitally signed by R/AT 13TH CROSS
HEMALATHA A
Location: HIGH MARALUR DINNE
COURT OF TUMAKURU CITY-570001.
KARNATAKA
2. THE MANAGER
UNITED INDIA INSURANCE COMPANY LTD.,
BRANCH OFRFICE, 1ST FLOOR
JAYADEVA COMPLEX, P.B.NO.54
B.H.ROAD, TUMAKURU CITY-570001.
...RESPONDENTS
(BY SRI.Y.P. VENKATAPATHY., ADVOCATE FOR R2:
NOTICE TO R1 IS D/W V/O DATED: 21.02.2022)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:02.09.2016
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MFA No. 8380 of 2018
PASSED IN MVC NO.1248/2015 ON THE FILE OF THE I
ADDITIONAL DISTRICT & SESSIONS JUDGE, MACT,
TUMAKURU, 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 02.09.2016 passed by the I Additional District &
Sessions Judge and MACT, Tumkur in MVC No.1248/2015.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 10.06.2015 at about 05.15 p.m., the
claimant was proceeding towards his house situated at
Upparahalli in his Honda Activa Moped bearing Registration
No.KA-04-EL-7364 and he was proceeding on the extreme
end of the left side of Kunigal main road with care and
cautious manner in a moderate speed by following the
traffic rules. When he reached in front of SBM ATM
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Counter, Sadashivanagara, Tumakuru and while turning
towards Ramajois Nagara, at that time, the rider of the
TVS Star Sports Motor Bike bearing Registration No.KA-
06-EN-7922 rode the same with high speed in a rash and
negligent manner without following the traffic rules, came
from Tumakuru side and 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 riding of the offending vehicle by its rider.
4. Upon service of notice, the respondent Nos.1 and 2
appeared through counsel and filed written statement
denying the averments made in the claim petition.
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5. On the basis of the pleadings of the parties, the
Claims Tribunal framed the issues and thereafter, recorded
the evidence. The Court Commissioner examined the
claimant as CW-1, and Dr.T.V.Tyagaraj was examined as
PW-2, and got exhibited documents namely Ex.C1 to
Ex.C19 and Ex.P1 and Ex.P2. On behalf of the
respondents, neither examined any witness nor exhibited
any document. The Claims Tribunal, by the impugned
judgment, inter alia, held that the accident took place on
account of rash and negligent riding of the offending
vehicle 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.3,02,100/-
along with interest at the rate of 8% 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:
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a) Firstly, the claimant asserts that he was earning
Rs.20,000/- per month by working as auto driver.
However, the Tribunal has erred in taking the income as
merely as Rs.6,000/- per month.
b) Secondly, due to the accident, the claimant has
sustained grievous injuries. He was treated as inpatient for
a period of 4 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. The Tribunal has failed to
grant any compensation under the head of 'loss of
amenities'.
With the above contentions, learned counsel for the
appellant sought to allow the appeal.
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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, considering the injuries sustained by the
claimant and considering the age and avocation of the
claimant, the overall compensation awarded by the
Tribunal is just and reasonable and it does not warrant
interference.
c) 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 8% p.a. on the
compensation amount appears excessive.
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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 10.06.2015
due to rash and negligent riding of the offending vehicle
by its rider.
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
2015, notional income shall be taken at Rs.9,000/- p.m.
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11. As per wound certificate, the claimant has sustained
fracture of left shoulder, right leg foot bone was fracture.
The doctor in his evidence has stated that the claimant has
suffered permanent partial disability of 30% to right leg
and 10% to whole body. 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 is aged about 48 years at the time of the accident
and multiplier applicable to his age group is '13'. Thus, the
claimant is entitled for compensation of Rs.1,40,400/-
(Rs.9,000*12*13*10%) 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.27,000/- (Rs.9,000*3 months) under
the head 'loss of income during laid up period'.
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13. Due to the accident, the claimant has suffered
grievous injuries and also undergone surgery. He was
hospitalized as an inpatient for more than 4 days in the
hospital. 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.30,000/- to Rs.40,000/-. The claimant is also entitled
for the compensation of Rs.40,000/- 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 30,000 40,000
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Medical expenses 1,36,500 1,36,500
Food, nourishment, 20,000 20,000
conveyance and
attendant charges
Loss of income during 12,000 27,000
laid up period
Loss of amenities 0 40,000
Loss of future income 93,600 1,40,400
Future medical expenses 10,000 10,000
Total 3,02,100 4,13,900
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.4,13,900/-.
d) Following the judgment of the Division Bench of this
Court in the case of 'MS.JOYEETA BOSE' (supra), the
enhanced compensation shall carry interest at 6%
per annum.
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e) The Insurance Company is directed to deposit the
compensation amount along with interest
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.
f) In view of the order dated 30.07.2024 passed by this
Court, the claimant is not entitled to interest on the
enhanced compensation for the delayed period of
679 days in filing the appeal.
Sd/-
(H.T. NARENDRA PRASAD)
JUDGE
HA
