Karnataka High Court

Sri Mahadevu vs Sri Venkatachalam on 10 September, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                              NC: 2024:KHC:36956
                                                            MFA No. 544 of 2020




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 10TH DAY OF SEPTEMBER, 2024

                                               BEFORE
                           THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                       MISCELLANEOUS FIRST APPEAL NO. 544 OF 2020 (MV)
                      BETWEEN:

                      SRI MAHADEVU
                      @ MADEGOWDA
                      S/O PUTEGOWDA
                      AGED ABOUT 45 YEARS
                      R/O HOSUR KALLAHALLI VILLAGE
                      K R NAGAR TALUK
                      MYSURU DISTRICT
                      NOW RESIDING AT
                      DOOR NO.2858/1
                      2ND MAIN 3RD CROSS
                      JAYANAGAR, MYSURU-570 014                  ...APPELLANT
                      (BY SRI. BHANU PRAKASH H V.,ADVOCATE)

                      AND:

                      1.    SRI VENKATACHALAM
Digitally signed by         S/O V ALRAJ
HEMALATHA A
Location: HIGH              AGED ABOUT 43 YEARS
COURT OF                    R/AT OLD NO.232 NEW NO.1/360C
KARNATAKA                   DHARMATHOPPU ANJEHALLI
                            BILIYANUR AGRAHARAM
                            PENNAGARAM TALUK
                            DHARMAPURI TAMIL NADU

                      2.    THE DIVISIONAL MANAGER
                            NEW INDIA ASSURANCE CO LTD
                            NO.2951 2ND FLOOR
                            NEAR CHAMUNDIPURAM CIRCLE
                            T P HUB JLB ROAD, CHAMUNDIPURAM
                            MYSORE-570 004.               ...RESPONDENTS
                              -2-
                                          NC: 2024:KHC:36956
                                         MFA No. 544 of 2020




(BY SRI.ASHOK N PATIL., ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH V/O DATED: 09.01.2024)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 03.07.2019
PASSED IN MVC NO. 192/2016 ON THE FILE OF THE JUDGE,
ADDITIONAL 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, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM:    HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

                     ORAL JUDGMENT

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 03.07.2019 passed by the Motor Accident Claims

Tribunal, Mysuru (hereinafter referred to as 'the Tribunal')

in MVC No.192/2016.

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

stated are that on 02.11.2015 at about 1.00 p.m., when

the claimant was proceeding on motorcycle bearing

registration No.KA-04/Y-6092 near ITC Factory on Hunsur

- Mysuru road, at that time, a Bolero vehicle bearing

NC: 2024:KHC:36956

registration No.TN-29/AL-3067 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

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

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the evidence. The claimant, in order to prove the case,

examined himself as PW-1, and Dr.Prashant Singh was

examined as PW-3, and got exhibited documents namely

Ex.P1 to Ex.P25. On behalf of the respondents, one

witness was examined as RW-1 and got exhibited

documents namely Ex.R1 to Ex.R5. 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.3,64,000/- along with interest at the rate of 6% p.a.

and directed the 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 raised the

following contentions:

(i) Firstly, due to the accident, the claimant has

suffered grievous injuries, he has examined the doctor as

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PW3. In his evidence he has deposed that the claimant has

suffered 90% disability, the Tribunal has assessed the

whole body disability at 30%, which is oh the lower side.

(ii) Secondly, due to the accidental injury, he has

suffered 90% disability, it will affect his future avocation

and he cannot do his day today work. Therefore, the

claimant is entitled for addition of future prospects. In

support of his contention, he relied on the judgments of

the Supreme court in the cases of 'PAPPU DEO YADAV

vs. NARESH KUMAR AND OTHERS' 2020 SCC Online

SC 752 and 'ERUDHAYA PRIYA vs. STATE EXPRESS

TRANSPORT CORPORATION LTD. 2020' SCC Online

SC 601.

(iii) Thirdly, the Tribunal erred in assuming the

monthly income of the claimant as Rs.6,000/-, despite

claiming that he earned Rs.18,000/- per month.

(iv) Fourthly, due to the accident, the claimant has

sustained grievous injuries. He was treated as inpatient for

a period of 11 days. Even after discharge from the

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hospital, he was not in a position to discharge his regular

work. He has suffered lot of pain during treatment and he

has to suffer the disability 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 allow the appeal.

7. On the other hand, the learned counsel for the

Insurance Company raised the following counter-

contentions:

(i) Firstly, even though the doctor has assessed the

disability at 90%, the claimant has entered the witness

box and he has answered all the questions put by the

advocate for the Insurance Company. Therefore,

considering the evidence of PW1 and evidence of the

doctor and the medical records, the Tribunal has rightly

assessed the whole body disability at 30%.

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(ii) Secondly, the functional disability of 30% will not

affect his avocation. Therefore, the Tribunal has rightly not

considered addition of future prospects.

(iii) Thirdly, 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.

(iv) Fourthly, 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. Hence, he sought to

dismiss the appeal.

8. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal and the

original records.

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9. It is not in dispute that the claimant has sustained

injuries in the road traffic accident occurred on 02.11.2015

due to rash and negligent driving of the offending vehicle

by its driver.

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 2015, notional income shall be taken

at Rs.9,000/- p.m.

11. As per wound certificate, the claimant has

sustained the following injuries:

"(i) Lacerated wound over left parieto occipital scalp measuring 6 x 2 cms. with blood clots.

(ii) Subdural collection with hyperdensity and air packets in left temporal parietal convexity.

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(iii) Resolving hemorrhage contusions in left temporal lobe.

(iv) Mass effect in the form of midline strife to right by 8 mm and effacement of ipsilateral ventricle.

(v) Extradural hemorrhage in right posterior temporal convexity and right parietal convexity.

(vi) Fracture of mastoid part of right temporal bone and

(vii) Craniotomy defect in left parietal and occipital bone."

Since the injuries suffered by the claimant is a head injury,

the doctor - PW3 has deposed that the assessment of

socio adopting functioning reveals that there is a

significant deterioration in his socio adoptive functioning

after the injury and he has assessed 90% disability.

Considering the injuries suffered by the claimant and the

evidence of the doctor, I am of the opinion that the whole

body disability can be assessed at 35%. Since the

claimant has suffered head injury, it may affect his

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avocation and future earnings. Therefore, in view of the

judgment of the Apex Court in the cases of PAPPU

(supra) and ERUDAYA PRIYA (supra), the claimant is

entitled for addition of future prospects.

12. In view of the law laid down by the Hon'ble Apex

Court in the case of NATIONAL INSURANCE CO. LTD. -

v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157],

since the claimant was aged about 42 years, 25% of his

income has to be added towards future prospects and the

applicable multiplier is '14'. Hence, the monthly income

of the claimant comes to Rs.11,250/- (Rs.9,000 + 25%).

Thus, the claimant is entitled to Rs.6,61,500/-

(Rs.11,250x12x14x35%) on account of 'loss of future

income due to disability'.

13. 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.27,000/- (Rs.9,000*3 months) under

the head 'loss of income during laid up period'.

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14. The claimant was hospitalized as an inpatient for

more than 11 days in the hospital and subsequently

received further treatment. 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.40,000/- and under the head of 'loss of

amenities' from Rs.5,000/- to Rs.25,000/-.

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
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                                              NC: 2024:KHC:36956





      different Heads            Tribunal           Court

                                     (Rs.)           (Rs.)

  Pain and sufferings                  25,000          40,000

  Medical expenses                      8,000           8,000

  Food, nourishment,                    5,500           5,500
  conveyance and
  attendant charges

  Loss of income during                18,000          27,000
  laid up period

  Loss of amenities                     5,000          25,000

  Loss of future income              3,02,500        6,61,500

                Total                3,64,000       7,67,000

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