Karnataka High Court

Vijayakumar K vs Syed Mohammed on 31 July, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

                                                  -1-
                                                                NC: 2024:KHC:30156
                                                           MFA No. 4084 of 2020




                           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. 4084 OF 2020 (MV)
                      BETWEEN:

                      VIJAYAKUMAR K
                      S/O LATE K C KALEGOWDA
                      AGED ABOUT 38 YEARS
                      CHINAKURALI HOBLI
                      PANDAVAPURA TALUK- 571455
                                                                      ...APPELLANT
                      (BY SRI. PRAKASHA H C.,ADVOCATE)

                      AND:

                      1.    SYED MOHAMMED
                            S/O SYED ABDUL RASEED
                            MAJOR, R/AT NO. 10/6A, JEEVANPURA
                            CHANNAPATTNA TOWN
                            RAMANGARA DISTRICT-562160.
Digitally signed by
HEMALATHA A           2.    THE MANAGER
Location: HIGH              UNITED INDIA INSURANCE CO LTD
COURT OF                    T P HAB NO. 1134
KARNATAKA
                            DEVARU MANSION BUILDING
                            PRINCE OF VELS ROAD
                            CHAMARAJAPURAM, MYSURU 570001
                                                                   ...RESPONDENTS
                      (BY SRI. L SREEKANTA RAO., ADVOCATE FOR R2: NOTICE TO
                      R1 DISPENSED VIDE ORDER DATED 12.12.2022)



                           THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                      AGAINST THE JUDGMENT AND AWARD DATED: 08.04.2019
                      PASSED IN MVC NO.963/2017 ON THE FILE OF THE JUDGE,
                             -2-
                                           NC: 2024:KHC:30156
                                         MFA No. 4084 of 2020




PRINCIPAL COURT OF SMALL CAUSES, MYSURU, AS A
PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL,
MYSURU, 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 08.04.2019 passed by the Motor Accident Claims

Tribunal, Mysuru (hereinafter referred to as 'the Tribunal')

in MVC No.963/2017.

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

stated are that on 05.07.2017 at about 9.30 p.m. when

the claimant was proceeding in 407 Tempo bearing

registration No.KA-12/A-0298 with ginger. When he

reached near Channapatna KSRTC bus sand, at that time,

a cantor bearing registration No.KA-45/1991 being driven

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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.

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 Nos.1 and 2

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.Karunakar was

examined as PW-2, and got exhibited documents namely

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Ex.P1 to Ex.P15. 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 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.2,40,400/- 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.9,000/-, despite claiming

that he earned Rs.20,000/- per month by doing

agriculture.

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

other incidental expenses are on the lower side and the

Tribunal has not awarded any compensation under the

head 'incidental expenses'.

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.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.

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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 7%.

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

'loss of amenities', '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

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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.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

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

11. As per wound certificate, the claimant has sustained

fracture distal end of radius left and other injuries. 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 7%. The claimant

was aged about 36 years at the time of the accident and

multiplier applicable to his age group is '15'. Thus, the

claimant is entitled for compensation of Rs.1,38,600/-

(Rs.11,000*12*15*7%) 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 enhance the compensation awarded by

the Tribunal under the head of 'pain and sufferings' from

Rs.20,000/- to Rs.40,000/- and under the head of 'loss of

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

is also entitled to compensation of Rs.10,000/- under the

head 'incidental expenses'.

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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 Court
      Compensation under
                                 Tribunal
        different Heads                               (Rs.)
                                     (Rs.)

 Pain and sufferings                    20,000           40,000

 Medical expenses and                   60,000           60,000
 nourishment

 Incidental expenses                           0         10,000

 Loss of income during laid             27,000           33,000
 up period

 Loss of amenities                      20,000           40,000

 Loss of future income                1,13,400         1,38,600

                Total                2,40,400          3,21,600

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