Karnataka High Court
Sri C Perumal vs Sri Karigowda on 31 October, 2022
Author: H. T. Narendra Prasad
Bench: H. T. Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF OCTOBER 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.4603 OF 2019(MV)
BETWEEN
SRI C PERUMAL
S/O LATE CHINNAPPA
NOW AGED ABOUT 46 YEARS
SINCE MENTALLY NOT STABLE
HE IS REPRESENTED BY
NEXT FRIEND HIS WIFE
SMT R MUNIRATHNAMMA
W/O C PERUMAL
NOW AGED ABOUT 41 YEARS
BOTH ARE RESIDING AT
DHOBI STREET,MALUR TOWN
KOLAR DISTRICT.
...APPELLANT
(BY SRI.GOPAL KRISHNA N., ADV.)
AND
1. SRI KARIGOWDA
S/O SIDDEGOWDA
MAJOR IN AGE
R/AT BANAVASE VILLAGE
2
GORUR HOBLI
HASSAN TALUK AND
DISTRICT-573201.
2. THE SHRIRAM GENERAL
INSURANCE COMPANY LTD
3RD FLOOR S & S CORNER BUILDING
OPP:BOWRING & LADY
CURZON HOSPITAL
SHIVAJI NAGAR
BENGALURU-560001.
REP BY ITS MANAGER.
...RESPONDENTS
(BY SRI.O.MAHESH, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 14.07.2022)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:14.08.2018 PASSED IN MVC NO.3024/2016
ON THE FILE OF THE I ADDITIONAL SMALL CAUSES
JUDGE AND MACT, BENGALURU(SCCH-11), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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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 14.8.2018 passed by MACT, Bangalore in MVC 3024/2016.
2. Facts giving rise to the filing of the appeal briefly stated are that on 5.4.2016 when the claimant was proceeding on motorcycle bearing registration No.KA-08-Q-2316 on Chokkandahalli- Hanumanayakanahalli Road, Malur Taluk, Kolar at that time, lorry bearing registration No.KA-18-A-6090 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 huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
4. On service of notice, the respondent No.2 appeared through counsel and filed written statement in which the averments made in the petition were denied.
The respondent No.1 did not appear before the Tribunal inspite of service of notice 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 wife of the claimant was 5 examined as PW-1 and Dr.Sudhir Hebbar was examined as PW-2 and another witness was examined as PW-3 and got exhibited documents namely Ex.P1 to Ex.P21. On behalf of the respondents, two witnesses were examined as RWs-1 and 2 and got exhibited documents namely Ex.R1. 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.692,047/- 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 has raised the following contentions:
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Firstly, even though the claimant claims that he was doing mason work and earning Rs.15,000/- per month, but the Tribunal has taken the notional income as merely as Rs.8,000/- per month.
Secondly, the claimant has suffered head injury and he has undergone brain surgery. Due to the injuries, since he was not able to give evidence, his wife appeared as witness and was examined on his behalf as PW-1. The claimant has examined the doctor as PW-2. The doctor in his evidence has stated that the claimant has suffered psychiatric global disability of 50% and he has further deposed that in future, the patient cannot do any manual laboring and supervision work. But the Tribunal has taken the whole body disability at 25%, which is on the lower side. Due to the disability, the claimant is unable to do his day to day work and there is loss of income. There is functional disability and claimant is entitled for 7 future prospects. But the Tribunal has failed to consider future prospects. In support of his contention, he has relied upon the decision of the Apex Court in the case of ERUDHAYA PRIYA vs. STATE EXPRESS TRANSPORT CORPORATION LTD. 2020' SCC Online SC 601 and in the case of 'PAPPU DEO YADAV vs. NARESH KUMAR AND OTHERS' AIR 2020 SC 4424.
Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 35 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 sufferings' and other incidental expenses are on the lower side. Hence, he sought for allowing the appeal. 8
7. On the other hand, the learned counsel for the Insurance Company has raised following counter contentions:
Firstly, the claimant has not filed any application before the Court to examine his next friend, i.e., wife as witness on the ground that due to the injuries, he is unable to appear before the court. Without the application, the Tribunal has erred in permitting the wife of the claimant to appear on his behalf as PW-1.
Secondly, the Insurance Company has satisfied the award passed by the Tribunal. After lapse of 176 days from the date of passing the award, the claimant has filed this appeal and therefore, it is very clear that the appeal is filed only to claim more compensation.
Thirdly, the claimant has examined the doctor as PW-2. The doctor in his evidence has stated that the claimant has suffered psychiatric global disability of 50%. In his cross examination, he has admitted that 9 he has not conducted any test to decide the disability. He has also admitted that he has not produced any document in respect of assessment of disability. The Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 10%.
Fourthly, even though the claimant claims that he was earning Rs.15,000/- per month, he has not produced any documents to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally.
Fifthly, 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 call for interference. Hence, he sought for dismissal of the appeal.10
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 due to rash and negligent driving of the offending vehicle by its driver.
The claimant claims that he was earning Rs.15,000/- per month. He has not produced any documents to prove his income. Therefore, in the absence of proof of income, notional income has to be assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken place in the year 2016, the notional income has to be taken at Rs.9,500/- p.m. As per wound certificate, the claimant has sustained brain injury, blunt trauma chest, hemothorax, multiple rib fractures, blunt trauma abdomen, splenic laceration, renal laceration. The 11 doctor in his evidence has stated that the claimant has suffered psychiatric global disability of 50%. He has deposed that claimant is suffering from post traumatic brain injury, sequeale that he has mild to moderate problems in memory, attention, concentration and learning ability. Therefore, taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate and discharge summary, I am of the opinion that the whole body disability can be taken at 40%.
Due to the head injury, the claimant is unable to do his day to day work. The disability suffered by the claimant has affected his earning capacity and there is loss of income. Since there is functional disability, in view of the law laid down by the Hon'ble Apex Court in the case of ERUDAYA PRIYA (supra) and PAPPU DEO YADAV (supra), the claimant is entitled for future prospects. In view of the law laid down by the Hon'ble 12 Apex Court in the case of 'NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS' AIR 2017 SC 5157, addition of 25% of the income of the claimant towards future prospects has to be considered. Hence, the monthly income of the claimant is assessed at Rs.11,875/- (Rs.9500+25%). The claimant is aged about 45 years at the time of the accident and multiplier applicable to his age group is '14'. Thus, the claimant is entitled for compensation of Rs.7,98,000/-
(Rs.11,875*12*14*40%) on account of 'loss of future income'.
The nature of injuries suggests that the claimant must have been under rest and treatment for a period of 3 months. Therefore, the claimant is entitled for compensation of Rs.33,000/- (Rs.11,000*3 months) under the head 'loss of income during laid up period'. 13
The claimant was treated as inpatient for more than 35 days in the hospital and thereafter, has received further treatment. Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He has suffered lot of pain during treatment and he has to suffer with the disability stated by the doctor throughout his life. Considering the same, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'pain and sufferings' from Rs.40,000/- to Rs.50,000/- and under the head of 'loss of amenities' from Rs.20,000/- to Rs.40,000/-.
Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.
10. Thus, the claimant is entitled to the following compensation:
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As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 40,000 50,000 Medical expenses 271,702 271,702 Food, nourishment, 15,000 15,000 conveyance and attendant charges Loss of income during 9,345 33,000 laid up period Loss of amenities 20,000 40,000 Loss of future income 336,000 798,000 Total 692,047 12,07,702
11. In the result, the appeal is allowed in part. The judgment of the Claims Tribunal is modified.
The claimant is entitled to a total compensation of Rs.12,07,702/-.
The Insurance Company is directed to deposit the enhanced compensation amount along with interest @ 6% p.a. 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 copy of this judgment.
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In view of the order dated 14.7.2022 passed by this Court, the claimant is not entitled for interest for the delayed period of 176 days in filing the appeal.
Sd/-
JUDGE DM