Karnataka High Court

Pruthivi Raj @ Pruthivi Raj Shetty vs Puttaraju M N on 2 September, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                             NC: 2024:KHC:35422
                                                           MFA No. 1958 of 2019




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 2ND DAY OF SEPTEMBER, 2024

                                              BEFORE
                           THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                      MISCELLANEOUS FIRST APPEAL NO. 1958 OF 2019 (MV)
                      BETWEEN:
                      PRUTHIVI RAJ @ PRUTHIVI RAJ SHETTY
                      S/O SRUESH SHETTY
                      AGED 35 YEARS R/AT # 35 II CROSS
                      NILAYA MARUTHI LAYOUT
                      ATTIGUPPE BENGALURU-560 040
                                                                   ...APPELLANT
                      (BY SRI. NAGARAJA REDDY D.,ADVOCATE)

                      AND:
                      1. PUTTARAJU M N
                         S/O NANJUNDAIAH MAJOR
                         MALAGHATTA KEREGODU HOBLI
                         MUDUGUNDURU POST
                         MANDYA DISTRICT-571 446.

                      2.    M/S RELIANCE GENERAL INSURANCE CO LTD
                            R/BY ITS MANAGER REGIONAL OFFICE
Digitally signed by         EAST WING V FLOOR CENTENARY BUILDING
HEMALATHA A                 M G ROAD BENGALURU-560 001
Location: HIGH
COURT OF                                                       ...RESPONDENTS
KARNATAKA
                      (BY SRI.B PRADEEP., ADVOCATE FOR R2:
                           NOTICE TO R1 IS DISPENSED WITH 07.08.2024)
                           THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                      AGAINST THE JUDGMENT AND AWARD DATED: 02/11/2018,
                      PASSED IN MVC NO.238/2018, ON THE FILE OF THE XVI
                      ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER,
                      MACT, BENGALURU (SCCH-14), PARTLY ALLOWING THE CLAIM
                      PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
                      OF COMPENSATION.
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                                        NC: 2024:KHC:35422
                                     MFA No. 1958 of 2019




    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 02.11.2018 passed by MACT, Bengaluru in MVC

No.238/2018.

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

stated are that on 28.12.2017 at about 1.15 p.m., when

the claimant was proceeding in a Motorcycle bearing

Registration No.KA-05-JK-0298 as a pillion rider and the

same was ridden by its rider by name Madaraj from

Vijayanagar Club Road towards Marenahalli Junction to

Pipe line road, on the extreme left side of the road slowly

and cautiously by observing all the traffic rules and

regulations, when he reached club road in front of

Vijayanagar Club, at that time, suddenly, the diver of the

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Toyato Etios Cab bearing Registration No.KA-11-B-2836

came from same road in opposite direction in a rash and

negligent manner endangering to human life without

observing any traffic rules and regulations and dashed

against the claimant's motorcycle. 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 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.

NC: 2024:KHC:35422

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, another witness was examined

as PW-2 and Dr.Nagaraj B.N. was examined as PW-3, and

got exhibited documents namely Ex.P1 to Ex.P26. 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 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.5,10,500/-

along with interest at the rate of 7% p.a. and directed the

Insurance Company to deposit the compensation amount

along with interest. Being aggrieved, the present appeal

has been filed.

NC: 2024:KHC:35422

6. The learned counsel for the claimant has raised the

following contentions:

a) Firstly, the Tribunal erred in assuming the monthly

income of the claimant as Rs.8,000/-, despite evidence

showing he earned Rs.20,000/- per month by working as a

Hotel Manager.

b) Secondly, the claimant has examined the doctor as

PW-3. The Tribunal undervalued the claimant's whole-body

disability at 12%, contradicting the evidence of the doctor

that the claimant suffered 53.3% disability of spine and

17.7% to whole body.

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

sustained grievous injuries. He was treated as inpatient for

a period of 9 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.

NC: 2024:KHC:35422

With the above contentions, learned counsel for the

appellant 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, 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, even though the doctor has assessed the

whole body disability at 17.7%, he has not a treated

doctor. Therefore, the Tribunal considering the injuries

sustained by the claimant, medical records and evidence

of the doctor, has rightly assessed the whole body

disability at 12%.

c) Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

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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.

d) 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 7% p.a. on the

compensation amount appears excessive.

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 28.12.2017

due to rash and negligent driving of the offending vehicle

by its driver.

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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

L Burst fracture with retropulsion and paraparesis, D12-13

stabilization laminectomy and decompression injury lower

back developed weakness in both lower limbs etc. The

doctor in his evidence has stated that the claimant

suffered 53.3% disability of spine and 17.7% to whole

body. Therefore, taking into consideration the deposition

of the doctor and injuries mentioned in the wound

certificate, I am of the opinion that the whole body

disability is considered at 17%. The claimant is aged about

34 years at the time of the accident and multiplier

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applicable to his age group is 16. Thus, the claimant is

entitled for compensation of Rs.3,59,040/-

(Rs.11,000*12*16*17%) 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.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 9 days in the hospital and subsequently

received further treatment. Therefore, I am inclined to

enhance the compensation awarded under the head of

'food, nourishment, conveyance and attendant charges'

from Rs.10,000/- to Rs.15,000/-.

14. Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. Considering

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NC: 2024:KHC:35422

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.30,000/- to Rs.40,000/-.

15. Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

16. 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                   2,22,000       2,22,000

 Food, nourishment,                   10,000         15,000
 conveyance and
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                                                 NC: 2024:KHC:35422





     attendant charges

     Loss of income during                24,000           33,000
     laid up period

     Loss of amenities                    30,000           40,000

     Loss of future income              1,84,500          3,59,040

                   Total                5,10,500       7,19,040

17. 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.7,19,040/-.

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.