Karnataka High Court
Syed Junaid vs K C Gayathri on 4 September, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:36223
MFA No. 2324 of 2019
C/W MFA.CROB No. 27 of 2022
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. 2324 OF 2019 (MV)
C/W
MFA CROSS OBJECTION NO. 27 OF 2022 (MV)
IN MFA No. 2324/2019
BETWEEN:
THE ORIENTAL INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE
TP HUB MUSLIM HOSTEL COMPLEX
SARASWATHIPURAM
MYSURU-570 009
NOW REPRESENTED BY ITS
DEPUTY MANAGER LEGAL
THE ORIENTAL INSURANCE CO LTD.,
REGIONAL OFFICE
LEO SHOPPING COMPLEX
TP HUB, RESIDENTY ROAD CROSS
Digitally signed by BANGALORE-560 025
HEMALATHA A ...APPELLANT
Location: HIGH (BY SRI. H C VRUSHABHENDRAIAH., ADVOCATE)
COURT OF
KARNATAKA
AND:
1. SYED JUNAID
S/O LATE SYED BASHEER
AGED ABOUT 39 YEARS
R/O 693 A.P. MOHALLA
CHAMARAJANAGARA
GUNDLUPET ROAD
CHAMARAJANAGAR TOWN
POST AND DISTRICT-571313.
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MFA No. 2324 of 2019
C/W MFA.CROB No. 27 of 2022
2. K C GAYATHRI
W/O K VAJREGOWDA
AGED ABOUT 50 YEARS
R/O NO. 1324, 9TH MIAN
NEAR GANAPTHI TEMPLE
ALAHANALLI LAYOUT
MYSURE-570 010.
...RESPONDENTS
(BY SMT. SUMA KEDILAYA., ADVOCATE FOR R1:
NOTICE TO R2 SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:20.08.2018
PASSED IN MVC NO.991/2015 ON THE FILE OF THE PRINCIPAL
JUDGE, COURT OF SMALL CAUSES, AS A PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL, MYSURU, AWARDING
COMPENSATION OF RS.3,74,700/-WITH INTEREST AT 7% P.A.
FROM THE DATE OF PETITION TILL ITS REALIZATION.
IN MFA.CROB NO. 27/2022
BETWEEN:
SYED JUNAID
S/O LATE SYED BASHEER
AGED ABOUT 41 YEARS
RESIDENT OF 6/93 A P MOHALLA
CHAMARAJANAGAR GUNDLUPET ROAD
CHAMARAJANAGARA TOWN AND POST
AND DISTRICT-571313.
...CROSS OBJECTOR
(BY SMT. SUMA KEDILAYA., ADVOCATE)
AND:
1. K C GAYATHRI
W/O K VAJREGOWDA
AGED ABOUT 50 YEARS
R/O NO.1324 9TH MAIN
NEAR GANAPATHI TEMPLE
ALANAHALLI LAYOUT
MYSURU-570010.
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MFA No. 2324 of 2019
C/W MFA.CROB No. 27 of 2022
2. THE ORIENTAL INSURNACE CO LTD
DIVISIONAL OFFICE
T P HUB, MUSLIM HOSTEL COMPLEX
SARASWATHIPURAM, MYSURU-570009
...RESPONDENTS
(BY SRI. H.C.VRUSHABENDRAIAH.,ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 15.07.2022)
THIS MFA FILED UNDER ORDER 41 RULWE 22 OF CPC
AGAINST THE JUDGMENT AND AWARD DATED:20.08.2018
PASSED IN MVC NO.991/2015 ON THE FILE OF THE PRINCIPAL
JUDGE, COURT OF SMALL CAUSES, AS A PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL, MYSURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL AND CROB, COMING ON FOR ADMISSION,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
ORAL JUDGMENT
MFA No.2324/2019 is filed by the Insurance
Company under Section 173(1) of the Motor Vehicles Act,
(for short, 'the Act'), whereas MFA Crob.No.27/2022 is
filed by the claimant under Order 41 Rule 22 of CPC being
aggrieved by the judgment and award dated 20.08.2018
passed by the Motor Accident Claims Tribunal, Mysuru (for
short, 'the Tribunal') in MVC No.991/2015. Since the
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challenge is to the same judgment, both the appeal and
cross objection are clubbed together, heard and common
judgment is being passed.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 16.07.2015 at about 1.00 p.m., when
the claimant was proceeding in Tata Ace bearing
registration No.KA-10/6820 in front of BAlakrishna Farm,
near Hosakempayyanahundi village, T.Narasipura Taluk, at
that time, a bus bearing registration No.KA-45/A-4959
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.
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
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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.
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-2, and Dr.Umesh was examined
as PW-4, and got exhibited documents namely Ex.P1 to
Ex.P24. 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
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Rs.3,71,400/- 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 and the cross-objection
have been filed.
6. The learned counsel for the Insurance Company
raised the following contentions:
(i) Firstly, the assertion of claimant that he was
earning Rs.400/- per day and Rs.150/- as bata, the same
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.
(ii) Secondly, the claimant has examined the doctor
as PW4, but he is not the treated doctor and he has
deposed that the fractures are re-united and the doctor
has assessed the functional disability at 24%, but the
Tribunal erred in taking the whole body disability at 15%,
which is on the higher side.
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(iii) Thirdly, the injuries suffered by the claimant are
minor in nature. 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.
(iv) 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. Hence, he
sought to allow the appeal filed by the Insurance Company
and to dismiss the cross-objection filed by the claimant.
7. On the other hand, the learned counsel for the
claimant raised the following counter-contentions:
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(i) Firstly, the Tribunal erred in assuming the monthly
income of the claimant as Rs.10,500/-, despite claiming
that he earned Rs.400/- per day and Rs.150/- as bata.
(ii) Secondly, the claimant was driver by avocation
and due to the disability he was unable to drive the
vehicle. The whole body disability assessed by the
Tribunal at 15% is on the lower side.
(iii) Lastly, due to the accident, the claimant has
sustained grievous injuries. He has suffered lot of pain
during treatment and he has to suffer the disability and
unhappiness throughout his life. 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. Hence, he
sought to dismiss the appeal filed by the Insurance
Company and to allow the cross-objection filed by the
claimant.
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8. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal and the
original records.
9. It is not in dispute that the claimant has sustained
injuries in the road traffic accident occurred on 16.07.2015
due to rash and negligent driving of the offending vehicle
by its driver.
10. The claimant claims that he was earning Rs.400/-
per day and Rs.150/- per day as bata. But he has not
produced any documents to substantiate his claim. But he
has produced the driving licence. Therefore, the Tribunal
rightly assessed the notional income of the claimant as
Rs.10,500/-.
11. As per wound certificate, the claimant has
sustained fracture of upper end tibia, injury to nasal bone
and other injuries. The doctor in his evidence has stated
that the claimant has suffered disability of 24% to
particular limb. He has also admitted that the fractures
are united. Considering the evidence of the doctor and
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injuries mentioned in the wound certificate, the whole
body disability has to be assessed at 15%. 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.1,89,000/-
(Rs.10,500*12*15*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 3
months. Consequently, the claimant is entitled for
compensation of Rs.31,500/- (Rs.10,500*3 months) under
the head 'loss of income during laid up period'.
13. The claimant was hospitalized as an inpatient for
more than one day in the hospital and subsequently
received further treatment. Therefore, I am inclined to
enhance the compensation awarded under the head of
'medical expenses and nourishment' from Rs.15,000/- to
Rs.25,000/-.
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14. Due to the accident, the claimant has suffered
grievous injuries and also undergone surgery. He has
suffered lot of pain during the treatment period and he has
to suffer the disability throughout his life. 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/- to Rs.60,000/-
and under the head of 'loss of amenities' from Rs.30,000/-
to Rs.50,000/-.
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.)
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Pain and sufferings 25,000 60,000
Medical expenses and 15,000 25,000
nourishment
Loss of income during 21,700 31,500
laid up period
Loss of amenities 30,000 50,000
Loss of future income 2,83,000 189,000
Total 3,74,700 3,55,500
17. In the result, the following order is passed:
ORDER
(i) The appeal is allowed in part and the cross-
objection is dismissed.
(ii) The judgment of the Claims Tribunal is modified.
(iii) The claimant is entitled to a total compensation of
Rs.3,55,500/- as against Rs.3,74,700/- awarded by the
Tribunal.
(iv) Following the judgment of the Division Bench of
this Court in the case of 'MS.JOYEETA BOSE' (supra), the
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rate of interest awarded by the Tribunal at 7% p.a. is
scalled down to 6% p.a.
(v) The Insurance Company is directed to deposit the
compensation amount along with interest 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 a copy of
this judgment.
Sd/-
(H.T. NARENDRA PRASAD)
JUDGE
CM
