Karnataka High Court
Sri Hemanth S vs Sri Somashekar on 1 October, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:40806
MFA No. 9641 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 9641 OF 2018 (MV)
BETWEEN:
SRI HEMANTH S
S/O. V K SREE KUMAR
AGED ABOUT 28 YEARS
R/AT NO. 30, ISHWARYA II CROSS
LINGAPPA BLOCK,DEVEGOWDA ROAD
RT NAGAR, BANGALORE 32
...APPELLANT
(BY SRI. SHRIPAD V SHASTRI .,ADVOCATE)
AND:
1. SRI SOMASHEKAR
NO. 10/1 1st MAIN
BHUVANESHWARI NAGAR
RT NAGAR, BENGALURU 560032.
2. RELIANCE GENERAL INSURANCE CO LTD
NO. 28, EAST WING
Digitally signed by 5TH FLOOR, CENTENARY BUILDING
HEMALATHA A MG ROAD, BANGALORE 01
Location: HIGH
COURT OF BY ITS MANAGER
KARNATAKA ...RESPONDENTS
(BY SRI.B PRADEEP.,ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 27.08.2024)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:04.07.2018
PASSED IN MVC NO.2411/2017 ON THE FILE OF THE VIII
ADDITIONAL SMALL CAUSES JUDGE AND XXXIII ACMM,
MEMBER-MACT, BENGALURU (SCCH-5), PARTLY ALLOWING
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MFA No. 9641 of 2018
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 challenging the judgment dated
04.07.2018 passed by MACT, Bengaluru in MVC
No.2411/2017.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 28.11.2016 when the claimant was
proceeding on motorcycle bearing registration No.KL-09-X-
3766 proceeding from his residence at Ningappa Block,
R.T.Nagar, towards shop on Devegowda Road, at that
time, another motorcycle bearing registration No.KA-50-
W-7611 being ridden by its rider at a high speed and in a
rash and negligent manner, dashed to the vehicle of the
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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 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 Tribunal, by impugned judgment and
award has partly allowed the claim petition and held that
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the claimant is entitled to a compensation of Rs.3,43,000/-
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 has raised the
following contentions:
a) Firstly, the claimant asserts that he was earning
Rs.35,000/- per month by working as Business
Development Executive at Coverging Minds Management
Pvt. Ltd. and produced Salary slips to prove that the
deceased was getting monthly salary of Rs.35,000/-.
However, the Tribunal has erred in taking the income as
merely as Rs.7,000/- per month.
b) Secondly, the claimant has examined the doctor as
PW-3. The Tribunal undervalued the claimant's whole-body
disability at 7%, contradicting the evidence of the doctor
that the claimant suffered 13% disability to whole body.
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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 3 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 overall compensation awarded by the Tribunal is
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
Insurance Company has raised the following counter-
contentions:
a) Firstly, even though the claimant claimed that he was
earning Rs.35,000/- per month and produced documents
i.e. Ex.P.11-salary slips, he has not examined the author
of the said documents. Therefore, the Tribunal has
assessed the income of the claimant notionally.
b) Secondly, even though the claimant suffered
fractures, they have reunited and the only remaining
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disability is the amputation of the 3rd toe of the right foot.
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, 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.
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 28.11.2016
due to rash and negligent riding of the offending vehicle
by its rider.
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10. The claimant claims that he was earning Rs.35,000/-
per month and he produced the salary slip to show that he
was getting a salary of Rs.35,000/-. But he was not
examined the author of the document. 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 2016, notional income shall be taken
at Rs.9,500/- p.m.
11. As per wound certificate, the claimant has sustained
degloving wound over the dorsum of 3rd toe, web space
and forefoot with complete avulsion of 3rd toe and
neurovascular devicits, fracture of proximal phalanx 4th
finger right hand, undisplaced fracture proximal phalynx
2nd toe. He has examined the doctor as PW-2. He deposed
that the claimant suffered 13% disability to whole body
and 4% to the loss of 3rd toe. He also deposed that the
fractures have reunited. Taking into consideration the
deposition of the doctor and injuries mentioned in the
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wound certificate, I am of the opinion that the whole body
disability is assessed at 10%. The claimant is aged about
27 years at the time of the accident and multiplier
applicable to his age group is '17'. Thus, the claimant is
entitled for compensation of Rs.1,93,800/-
(Rs.9,500*12*17*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 2
months. Consequently, the claimant is entitled for
compensation of Rs.19,000/- (Rs.9,500*2 months) under
the head 'loss of income during laid up period'.
13. 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.25,000/-
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to Rs.40,000/- and under the head of 'loss of amenities'
from Rs.10,000/- to Rs.25,000/-.
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 25,000 40,000
Medical expenses 1,98,000 1,98,000
Food, nourishment, 10,000 10,000
conveyance and
attendant charges
Loss of income during 0 19,000
laid up period
Loss of amenities 10,000 25,000
Loss of future income 1,00,000 1,93,800
Total 3,43,000 4,85,800
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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.4,85,800/-.
d) The Insurance Company is directed to deposit the
compensation amount along with interest
@ 6% p.a. 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.
Sd/-
(H.T. NARENDRA PRASAD)
JUDGE
HA
