Karnataka High Court

Sri Sathish vs Sri Rathnakara on 3 September, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                                NC: 2024:KHC:35888
                                                              MFA No. 7678 of 2018




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 3RD DAY OF SEPTEMBER, 2024

                                               BEFORE
                           THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                      MISCELLANEOUS FIRST APPEAL NO. 7678 OF 2018 (MV)
                      BETWEEN:
                      SRI SATHISH
                      AGED ABOUT 29 YEARS
                      S/O CHANDRASHEKHAR
                      R/AT BEDARAKOTTIGE
                      UPPINAKUDRU VILLGE
                      KUNDAPURA TALUK
                      UDUPI DISTRICT-576 230
                                                                      ...APPELLANT
                      (BY SRI.NAGARAJ HEGDE.,ADVOCATE)

                      AND:
                      1. SRI RATHNAKARA
                         AGED ABOUT 27 YEARS
                         S/O SANNAPPA
                         R/AT MARKODU
                         KOTESHWARA VILLAGE
                         KUNDAPURA TALUK
Digitally signed by      UDUPI DISTRICT-576 222.
HEMALATHA A
Location: HIGH
COURT OF              2.    THE UNIVERSAL SAMPO GENERAL
KARNATAKA                   INSURANCE CO LTD.,
                            CITY TRADE CENTRE
                            1ST FLOOR, OPP CITY HOSPITAL
                            MANGALURU-560 001
                            REP. BY ITS AUTHORISED OFFICER.
                                                                   ...RESPONDENTS

                      (BY SRI. S V HEGDE MULKHAND., ADVOCATE FOR R2:
                          NOTICE TO R1 IS H/S V/O DATED: 22.08.2024)
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                                       NC: 2024:KHC:35888
                                     MFA No. 7678 of 2018




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:03.05.2018
PASSED   IN MVC   NO.178/2017    ON THE FILE OF       THE
ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MACT, UDUPI,
[SITTING AT KUNDAPURA], KUNDAPURA, 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 03.05.2018 passed by the Additional District Judge

and Addl. MACT, Udupi (Sitting at Kundapura), Kundapura

in MVC No.178/2017.

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

stated are that on 01.08.2016 at about 9.00 hours, the

claimant was riding his motorcycle bearing Registration

No.KA-20-EA-4092 from Tallur side towards Kundapura

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side on NH-66, in slowly, steadily and on the left side of

the road, when he reached at a place near Tallur Bridge,

Tallur Village, Kundapura Taluk, at that time, a rider of the

motorcycle bearing Registration No.KA-20-EL-5196 came

from Kundapura side towards Tallur side ridden by its rider

in high speed and rash and negligent manner and due to

over speed, the rider of the said motorcycle lost control

over the same and came to right side of the road 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 riding of the offending vehicle by its rider.

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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 claimant, in order to prove the case,

examined himself as PW-1, and Dr.Dinesh Kumar Shetty

was examined as PW-2, and got exhibited documents

namely Ex.P1 to Ex.P14. 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.3,21,385/-

along with interest at the rate of 6% p.a. and directed the

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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 Tribunal erred in assuming the monthly

income of the claimant as Rs.9,000/-, despite evidence

showing he earned Rs.18,000/- per month by working as a

mason.

b) Secondly, due to the accident, the claimant has

sustained grievous injuries. He was treated as inpatient for

a period of 5 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'.

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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.18,000/- 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.

With the above contentions, learned counsel for the

Insurance Company sought to dismiss the appeal.

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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 01.08.2016

due to rash and negligent riding of the offending vehicle

by its rider.

10. The claimant claims that he was earning Rs.18,000/-

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

2016, notional income shall be taken at Rs.9,500/- p.m.

11. As per wound certificate, the claimant has sustained

comminuted fracture radius volar displaced and abrasion

right ring finger. The doctor in his evidence has stated that

the claimant has suffered disability of 20% in respect to

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his left upper 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 10%. The claimant is aged about 28

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. 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 award the compensation of Rs.40,000/- under the

head of 'loss of amenities'.

13. Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

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14. 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           40,000

 Medical expenses                    35,585           35,585

 Food, nourishment,                   7,000            7,000
 conveyance and
 attendant charges

 Loss of income during                1,200            1,200
 laid up period

 Loss of amenities                         0          40,000

 Loss of bed rest                    54,000           54,000

 Loss of future income             1,83,600       1,93,800

                 Total             3,21,385      3,71,585

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