Karnataka High Court

Deverajaiah @ Devaraju vs United India Insurance Co.Ltd on 4 September, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                            NC: 2024:KHC:36084
                                                        MFA No. 3172 of 2018




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 4TH DAY OF SEPTEMBER, 2024

                                              BEFORE
                           THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                      MISCELLANEOUS FIRST APPEAL NO. 3172 OF 2018 (MV)
                      BETWEEN:
                      DEVERAJAIAH @ DEVARAJU
                      S/O DASAPPA
                      AGED ABOUT 40 YEARS
                      R/A NO.3011-91-1
                      MARUTHI NAGAR, DODDABALLAPURA
                      BENGALURU.
                                                                  ...APPELLANT
                      (BY SRI. RAGHAVENDRA E P.,ADVOCATE)

                      AND:
                      1. UNITED INDIA INSURANCE CO.LTD.
                         MOTOR THIRD PARTY CLAIMS HUB
                         4TH FLOOR,KRISHI BHAVAN
                         HUDSON CIRCLE, BANGALORE-560 043.

                      2.  M/S CKGB KOLAR BR
Digitally signed by       MRS NIRMALA, W/O T VENKATESH
HEMALATHA A               PROPRIETOR, SRI VENKATESHWARA MOTORS
Location: HIGH            KRUTHIKA NILAYA,KOLALA
COURT OF
KARNATAKA                 KORATAGERE TALUK, TUMKUR-572 133.
                                                               ...RESPONDENTS
                      (BY SRI. A RAVISHANKAR.,ADVOCATE FOR R1:
                      NOTICE TO R2 IS DISPENSED WITH
                      V/O DATED: 27.11.2023)
                           THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                      AGAINST THE JUDGMENT AND AWARD DATED: 24/11/2017
                      PASSED IN MVC NO.3019/2016 ON THE FILE OF THE MEMBER,
                      MACT, XVI ADDL. JUDGE, COURT OF SMALL CAUSES,
                      BENGALURU (SSCH-14),     PARTLY ALLOWING THE CLAIM
                      PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
                      OF COMPENSATION.
                                -2-
                                          NC: 2024:KHC:36084
                                        MFA No. 3172 of 2018




     THIS APPEAL, COMING ON FOR FINAL HEARING, 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 by the judgment dated

24.11.2017 passed by MACT, Bengaluru in MVC

No.3019/2016.

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

stated are that on 08.11.2013 when the claimant was

driving the canter bearing registration No.KA-04-A-5836

on Doddaballapura Kanakanahalli Road near

Venkateshappa land, at that time, bus bearing registration

No.KA-06-C-6238 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 No.1

appeared through counsel and filed written statement

denying the averments made in the claim petition. The

respondent No.2, 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

the claimant is entitled to a compensation of Rs.898,000/-

along with interest at the rate of 9% p.a. and directed the

Insurance Company to deposit the compensation amount

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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.20,000/- per month by working as driver and produced

driving licence. However, the Tribunal has erred in taking

the income as merely as Rs.9,000/- per month.

b) Secondly, the claimant has examined the doctor as

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

disability at 18%, contradicting the evidence of the doctor

that the claimant suffered 29% to whole body.

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

sustained grievous injuries. He was treated as inpatient for

a period of 42 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

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sufferings' 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

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, the Tribunal considering the injuries

sustained by the claimant and evidence of the doctor, has

rightly assessed the whole body disability at 18%.

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

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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 9% p.a. on the

compensation amount appears excessive.

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 08.11.2013

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 and produced driving licence at Ex.P-9.

Considering the evidence, age and avocation of the

claimant, the Tribunal has rightly taken notional income at

Rs.9,000/- p.m.

11. As per wound certificate, the claimant has sustained

fracture of right femur sub trochanteric, fracture of left

femur, mid shaft, right proximal tibia fracture and distal

1/3rd both tibia and fibula fracture and left talonavacular

and calcanneo-cuboid dislocation. The doctor in his

evidence has stated that the claimant has suffered

permanent disability of 48.5% to right lower limb and

38.5% lower limb and 29% to whole body. Therefore,

taking into consideration the deposition of the doctor and

injuries mentioned in the wound certificate, the whole

body disability can be safely taken at 29%. The claimant is

aged about 38 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.469,800/-

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(Rs.9,000*12*15*29%) on account of 'loss of future

income'.

12. The claimant was hospitalized as an inpatient for

more than 42 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.50,000/- to Rs.60,000/- and under the head of 'loss

of amenities' from Rs.30,000/- to Rs.45,000/-.

13. Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

14. Thus, the claimant is entitled to the following

compensation:

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As awarded As awarded by the by this Compensation under Tribunal Court different Heads (Rs.) (Rs.)

Pain and sufferings 50,000 60,000

Medical expenses 446,000 446,000

Food, nourishment, 25,000 25,000 conveyance and attendant charges

Loss of income during 36,000 36,000 laid up period

Loss of amenities 30,000 45,000

Loss of future income 291,000 469,800

Future medical expenses 20,000 20,000

Total 8,98,000 11,01,800

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