Karnataka High Court

Devaraja @ Devarajegowda vs The Divisional Controller on 31 July, 2024

Author: H T Narendra Prasad

Bench: H T Narendra Prasad

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                                                               NC: 2024:KHC:30219
                                                         MFA No. 8447 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 31ST DAY OF JULY, 2024

                                              BEFORE
                         THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                      MISCELLANEOUS FIRST APPEAL NO. 8447 OF 2018 (MV)
                      BETWEEN:
                      DEVARAJA @ DEVARAJEGOWDA
                      S/O RANGEGOWDA
                      AGED ABOUT 41 YEARS
                      R/AT GOWDAGERE VILLAGE KASABA HOBLI
                      CHANNARAYAPATNA TALUK
                      HASSAN DISTRICT-573201.
                                                                     ...APPELLANT
                      (BY SRI. SHRIPAD V SHASTRI .,ADVOCATE)

                      AND:
                      THE DIVISIONAL CONTROLLER
                      KSRTC CHIKMAGALUR DIVISION
                      REPRESENTED BY THE
                      DIVISIONAL CONTROLLER K S R T C
                      HASSAN DIVISION-573201.
                                                                   ...RESPONDENT
Digitally signed by   (BY SRI. NAGARAJA K.,ADVOCATE)
HEMALATHA A
Location: HIGH             THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
COURT OF
KARNATAKA             AGAINST THE JUDGMENT AND AWARD DATED:09.09.2014
                      PASSED IN MVC NO.1592/2012, ON THE FILE OF THE
                      PRESIDING OFFICER, FAST TRACK COURT AND ADDITIONAL
                      M.A.C.T., CHANNARAYAPATNA, 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
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                                        NC: 2024:KHC:30219
                                      MFA No. 8447 of 2018




                    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 09.09.2014 passed by MACT, Channarayapatna in

MVC No.1592/2012.

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

stated are that on 26.11.2011 when the claimant along

with another was proceeding on motorcycle bearing

registration No.KA-30-H-8055 near Shettalamma Temple

on NH-48 between Shettihalli-Jogipura, at that time,

KSRTC bus bearing registration No.KA-18-F-426 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.

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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 respondent appeared

through counsel and filed written statement 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.V.Mahesh was

examined as PW-2, and got exhibited documents namely

Ex.P1 to Ex.P187. On behalf of the respondents, one

witness was examined as RW-1 and got exhibited

documents namely Ex.R1 to Ex.R2. The Claims Tribunal,

by the impugned judgment, inter alia, held that the

NC: 2024:KHC:30219

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.294,240/- along with interest at the rate of 6% p.a.

and directed the KSRTC 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 claimant asserts that he was earning

Rs.15,000/- per month by doing agriculture. However, the

Tribunal has erred in taking the income as merely as

Rs.4,500/- per month.

b) Secondly, the claimant has examined the doctor as

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

disability at 16%, contradicting the evidence of the doctor

that the claimant suffered 48% disability to particular

limb.

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

sustained grievous injuries. He was treated as inpatient for

a period of 30 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. The

Tribunal has failed to grant any compensation towards

'loss of income during laid-up period'. Considering the

same, the compensation awarded by the Tribunal under

the heads of 'loss of amenities', 'pain and sufferings',

'future medical expenses' and other incidental expenses

are on the lower side.

With the above contentions, the learned counsel

sought to allow the appeal.

7. On the other hand, the learned counsel for the

KSRTC has raised the following counter-contentions:

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

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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 16%.

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, the learned counsel

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 26.11.2011

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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

2011, notional income shall be taken at Rs.6,500/- p.m.

11. As per wound certificate, the claimant has sustained

fracture of right shaft femur, fracture of neck of right

femur, fracture of right hip and fracture of rotator cup of

right shoulder. The doctor in his evidence has stated that

the claimant has suffered disability of 48% 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

16%. The Tribunal has rightly applied multiplier of '16'.

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Thus, the claimant is entitled for compensation of

Rs.199,680/- (Rs.6,500*12*16*16%) 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 6

months. Consequently, the claimant is entitled for

compensation of Rs.39,000/- (Rs.6,500*6 months) under

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

13. The claimant was hospitalized as an inpatient for

more than 30 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 'pain and sufferings' from

Rs.40,000/- to Rs.50,000/- and under the head of 'loss

of amenities' from Rs.20,000/- to Rs.40,000/-.

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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                 40,000            50,000

 Medical expenses                    50,000            50,000

 Food, nourishment,                  21,000            21,000
 conveyance and
 attendant charges

 Loss of income during                     0           39,000
 laid up period

 Loss of amenities                   20,000            40,000

 Loss of future income              138,240           199,680

 Future medical expenses             25,000            25,000

                 Total             294,240        424,680

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