Karnataka High Court

C P Mahalingappa @ Mahalingaiah vs Deepak Singh on 9 September, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

                                                  -1-
                                                                NC: 2024:KHC:36653
                                                                MFA No. 81 of 2019




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 9TH DAY OF SEPTEMBER, 2024

                                               BEFORE
                            THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                           MISCELLANEOUS FIRST APPEAL NO. 81 OF 2019 (MV)
                      BETWEEN:
                      C P MAHALINGAPPA @ MAHALINGAIAH
                      S/O PUTTASWAMY GOWDA
                      AGED ABOUT 57 YEARS
                      R/AT CHAMANAHALLI, KNAVA POST
                      KUTAGAL HOBLI, RAMANAGARA TALUK-562159
                                                                      ...APPELLANT
                      (BY SRI. SHANTHARAJ K.,ADVOCATE)

                      AND:
                      1. DEEPAK SINGH
                         S/O NARENDRA SINGH
                         AGE MAJOR
                         SHANUBHOGANAHALLI
                         KUTAGAL HOBLI, RAMANAGARA TALUK-562159.

                      2.    LIBERTY VIDEOCON GEN. INS. CO LTD
                            BY ITS MANAGER
Digitally signed by         OFFICE NO.1, ALYASSA
HEMALATHA A                 1ST FLOOR, REAR PORTION
Location: HIGH
COURT OF                    OLD NO.28, NEW NO.23
KARNATAKA                   RICHMOND ROAD
                            BENGALURU-560025
                                                               ...RESPONDENTS
                      (BY SRI. RAVI S SAMPRATHI., ADVOCATE FOR R2:
                      NOTICE TO R1 IS DISPENSED WITH V/O DATED: 06.09.2019)
                             THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                      AGAINST THE JUDGMENT AND AWARD DATED:01.10.2018
                      PASSED IN MVC NO.5646/2017        ON THE FILE OF THE XIII
                      ADDITIONAL JUDGE, COURT OF SMALL CAUSES & MEMBER,
                      MACT, BENGALURU, [SCCH-15], PARTLY ALLOWING THE CLAIM
                            -2-
                                       NC: 2024:KHC:36653
                                       MFA No. 81 of 2019




PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     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 challenging by the judgment dated

01.10.2018 passed by the XIII Additional Judge, Court of

Small Causes and Member MACT, Bengaluru in MVC

No.5646/2017.

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

stated are that on 17.09.2017 at about 1.30 p.m., the

claimant was riding his motorcycle bearing Registration

No.KA-42-S-7979, when he reached near Dashavara Road,

Kanva, Channapatna Taluk, at that time, the Bullet 350 CC

Motorcycle bearing Registration No.KA-41-EK-1649 ridden

by its rider in a rash and negligent manner and dashed

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against 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 rash and

negligent riding of the offending vehicle by its rider.

4. Upon service of notice, the respondent Nos.1 and 2

appeared through counsel and filed written statement

denying the averments made in the claim petition.

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.2,22,200/-

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, at the time of the accident, the claimant was

aged about 55 years. The claimant asserts that he was

earning Rs.18,000/- per month by working as Electrician.

However, the Tribunal has erred in taking the income as

merely as Rs.8,000/- per month.

b) Secondly, the claimant has examined the doctor as

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

disability at 10%, contradicting the evidence of the doctor

that the claimant suffered 70% disability to right upper

limb and 27% to whole body.

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

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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.

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.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, the injuries suffered by the claimant are

only in respect of upper limb and even though the doctor

has assessed the whole body disability at 27%, the

Tribunal considering the injuries sustained by the claimant

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and evidence of the doctor, has rightly assessed the whole

body disability at 10%.

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

the heads of 'loss of amenities', 'pain and sufferings' and

other incidental expenses are 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 17.09.2017

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.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

2017, notional income shall be taken at Rs.11,000/- p.m.

11. As per wound certificate, the claimant has sustained

nasal bone fracture and intertrochantric fracture. The

doctor in his evidence has stated that the claimant

suffered 70% disability to right upper limb and 27% 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 assessed at 20%. The claimant is aged about

58 years at the time of the accident and multiplier

applicable to his age group is '9'. Thus, the claimant is

entitled for compensation of Rs.2,37,600/-

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(Rs.11,000*12*9*20%) 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.22,000/- (Rs.11,000*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.30,000/-

to Rs.50,000/- and under the head of 'loss of amenities'

from Rs.20,000/- to Rs.40,000/-.

14. Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

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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                 30,000           50,000

 Medical expenses                    57,700           57,700

 Food, nourishment,                  10,000           10,000
 conveyance and
 attendant charges

 Loss of income during                8,000           22,000
 laid up period

 Loss of amenities                   20,000           40,000

 Loss of future income               86,500       2,37,600

 Future medical expenses             10,000           10,000

                 Total             2,22,200      4,27,300

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