Karnataka High Court
Manju vs Srikanta N on 10 December, 2021
Author: H. T. Narendra Prasad
Bench: H. T. Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO.6167 OF 2017 (MV)
BETWEEN:
MANJU
S/O NATARAJU, 33 YEARS
PERMANENT R/O BADANAVALU,
KASABA HOBLI, NANJANGUD TALUK-571301
PRESENTLY R/O K.G.KOPPAL, 3RD CROSS
MYSORE-570 006
...APPELLANT
(BY SRI.B.M.MANJULA, ADV., FOR R.C.NAGARAJ
ADVOCATE)
AND:
1. SRIKANTA N
S/O NATARAJU, 30 YEARS
BADANAVALU VILLAGE,
KASABA HOBLI,
NANJANGUD TALUK-571301
2. NATIONAL INSURANCE COMPANY LIMITED
2ND FLOOR, NO.67/14 (F-14),
NEW SAIVAJI RAO ROAD, KHILE MOHALLA
MYSURU-570 024
REP. BY ITS BRANCH MANAGER
... RESPONDENTS
(BY SRI. SHIVARAJ PATIL ADV., FOR R2)
(R1 SERVED)
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THIS MFA IS FILED UNDER SEC.173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 23.11.2016
PASSED IN MVC NO.43/2015 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND J.M.F.C. PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section 173 of the Motor Vehicles Act challenging the judgment and award dated 23.11.2016 passed by MACT., Nanganjud in MVC No.43/2015, whereby the Tribunal has granted a compensation of Rs.2,66,000/- with 6% interest per annum fastening the liability on the insurance company.
2. Brief facts of the case are that; on 24.01.2013 at about 9.00 pm., the petitioner being pillion rider along with respondent No.1 being the rider was going in the motor cycle bearing registration No.KA-09-EW-2447 proceeding to Devanur main road, at that time rider of the motor cycle bearing registration No.KA-09-EW-2447 has ridden the same 3 in rash and negligent manner on the road hump. Due to the impact, the petitioner fell down and sustained injuries. Immediately, thereafter he was shifted to Government Hospital, Nanjangud, thereafter shifted to K.R.Hospital, Mysuru and thereafter to BGS Apollo Hospital, Mysuru. After recovery from the injuries, the claimant has filed the claim petition under Section 166 of the Motor Vehicles Act.
3. On service of summons, respondent No.1 remained exparte, respondent No.2 appeared before the Court through its counsel and filed the statement of objections and denied the averments made in the claim petition and contended that the rider of the offending vehicle was not having a valid and effective driving licence to drive his vehicle as on the date of the accident. Hence, they sought for dismissal of the appeal.
4. On the basis of the pleadings of the parties, the Tribunal has framed the following issues:
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1. Whether the petitioner proves that, he sustained injuries in a Road Traffic Accident occurred on 24.1.2013 at about 9.00 pm., near Kalappa's land, Badanavalu-Devanur Main Road, due to rash and negligent manner of driving Motorcycle bearing Registration No.KA-09-EW-2447, by the 1st respondent?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. What order or award?
5. To prove the case, the claimant was examined himself as PW1 and examined Dr.Anil Kumar H.P as PW2 and produced 19 documents. The respondent has neither examined any witness nor produced any document.
6. On appreciation of the oral and documentary evidence, the Tribunal has granted compensation of Rs.2,66,000/- with interest at 6% per annum. 5
7. Being aggrieved by the same, the claimant has filed this appeal for enhancement of compensation.
8. Sri.Nagaraj R.C. learned counsel appearing for the claimant has contended that due to the accident, the claimant has suffered grievous injuries. He examined the doctor as PW2. In his evidence, he has deposed that the claimant has suffered 21% disability to the right leg and there is shortening of right lower limb. Due to that impact, the claimant is unable to do his day today work. The whole body disability assessed by the Tribunal at 10% is on the lower side. He further contended that at the time of the accident, the claimant was earning Rs.15,000/- per month. The Tribunal has assessed the notional income of the claimant at Rs.6,000/- per month is on the lower side. She contended that due to that accident, the claimant has suffered grievous injuries. He was inpatient for a period of 7 days. He has suffered lot of pain during the period of treatment. He has to suffer disability and unhappiness throughout his life. The 6 compensation awarded by the Tribunal for pain and suffering, loss of amenities, other incidental expenses is on the lower side. Hence, he sought for enhancement of the compensation.
9. Per contra, Sri.Shivaraj Patil, learned counsel appearing for the insurance company contended that the injuries suffered by the claimant are minor in nature. Even though the claimant has examined the doctor, the doctor has deposed that the claimant has suffered 21% of disability to the right leg. The Tribunal after considering the evidence of doctor and considering the income of the injured assessed the whole body disability at 10%. He further contended that even though the claimant has claimed that he was earning Rs.15,000/- per month, he has not produced any document to establish the same. Therefore, the Tribunal has rightly assessed the notional income of the claimant as Rs.6,000/- per month. He further contended that the injuries suffered by the claimant are minor in nature. He was inpatient only for a period of 7 days. Considering the evidence of the doctor 7 and also considering the injuries suffered by the claimant, the over all compensation awarded by the Tribunal is just and reasonable. Hence, he sought for dismissal of the appeal.
10. Heard learned counsel for the parties. Perused the judgment and award.
11. It is not in dispute that the claimant has suffered injuries in the road traffic accident occurred on 24.01.2013 due to rash and negligence driving of the rider of the motor cycle bearing registration No.KA-09-EW-2447. Due to the accident, the claimant has suffered the following injuries:
"Swelling, tenderness with shortening of right lower limb seen, limb was externally rotated, X-ray right thigh showed fracture midshaft, right femur with implant in situ, implant was removed, ORIF with plating right femur and abrasion over right index and middle finger, dorsum of hand in the area of 6 cm., x 3 cm."
12. The claimant has examined PW2 - Dr.Anil Kumar H.P. In his evidence he has deposed that the claimant has suffered permanent partial disability at 21% to the right leg. 8 Considering the evidence of the doctor and considering the nature of injuries suffered by the claimant and the impact of the injuries and avocation of the claimant, the whole body disability assessed by the Tribunal at 10% is just and reasonable.
13. Even though the claimant has claimed that she was earning Rs.15,000/- per month, he has not produced any document to establish the same. Under these circumstances, the notional income of the claimant has to be assessed as per the guidelines issued by the Karnataka Legal Services Authority. For the accident occurred in the year 2013, the notional income has to be considered as Rs.8,000/- per month. Accordingly, the monthly income of the claimant is taken as Rs.8,000/- per month. At the time of the accident he was aged about 31 years, the multiplier applicable to that age group is '16'. Accordingly, the loss of future earning due to disability has to be re-assessed as follows:
Rs.8,000/- x 12 x 16 x 10% = Rs.1,53,600/-.9
14. Due to that accident, the claimant has suffered the above said injuries. He was inpatient for a period of 7 days. He has suffered lot of pain during the period of treatment. He has to suffer this disability and unhappiness through out his life. Considering the evidence of the doctor and considering the injuries suffered by the claimant, I am inclined to enhance the compensation awarded by the Tribunal from Rs.10,000/- to Rs.40,000/- under the head loss of amenities. The claimant is entitled to loss of income during the laid up period for a period of three months (Rs.8,000/- x 3 = Rs.24,000/-) and medical expenses including diet, nourishment and attendant charges has to be enhanced from Rs.80,000/- to 90,000/-. The compensation awarded by the Tribunal under the head 'pain and suffering' is just and reasonable. Accordingly, the claimant is entitled for the compensation as under:
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Compensation Head Amount in
Rupees
Pain and suffering 60,000
Medical Expenses (including diet, 90,000
nourishment, attendant charges etc.,)
Loss of earnings due to disability 1,53,600
Loss of amenities 40,000
Loss of earnings during laid up period 24,000
TOTAL 3,67,600
15. Accordingly, the appeal is allowed in part. The Judgment and award passed by the Tribunal is modified as above. The Insurance Company is directed to deposit, with the learned Tribunal, the entire compensation amount, along with an interest @ 6% per annum, 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 the certified copy of this judgment. The amount so deposited shall be released forthwith to the claimant by the learned Tribunal after verifying his identity.
Sd/-
JUDGE GH