Karnataka High Court
Narasimhappa vs National Insruance Co Ltd on 19 November, 2021
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.5222 OF 2019(MV)
BETWEEN:
Narasimhappa,
S/o Veerappa @ Erappa @ Erajja,
Aged about 61 years,
R/o K. Ballekatte Village,
Chitradurga Tq & Dist-577501. ... Appellant
(By Sri.Spoorthy Hegde N., Advocate)
AND:
1. National Insurance Co. Ltd.,
Rep. by its Divisional Manager,
Divisional office, Melagiri Plaza,
Opp. To Bapuji Dental Hospital,
Sundar Ram Shetty Nagar,
Davanagere-577522.
2. Manjunatha,
S/o Halappa,
Aged about 35 years,
R/o K.Ballekatter Village,
Lakshmisagara Post,
Chitradurga Tq-577501. ... Respondents
(By Sri. E.I.Sanmathi, Advocate for R1:
Notice to R2 is D/W V/O 19.11.2021)
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This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:27.12.2018 passed
in MVC No.218/2018 on the file of the I Additional Senior
Civil Judge, Additional MACT-IV, Chitradurga, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
This MFA, coming on for orders, this day, this Court,
delivered the following:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimant being aggrieved by the judgment dated 27.12.2018 passed by the Motor Accident Claims Tribunal, Chitradurga in MVC No.218/2018.
2. Facts giving rise to the filing of the appeal briefly stated are that on 09.05.2017 at about 5.00 a.m. the claimant was proceeding in his 4 wheeler bicycle on NH-4 Service road near Sardarji Dhaba Hotel, K.Ballekatte Gate, Chitradurga Taluk, at that time, the motorcycle bearing registration No.KA- 3 16/ED-6266 being ridden by its rider at a high speed and in a rash and negligent manner, dashed to the claimant from back side. 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 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 Nos. 1 and 2 appeared through counsel and filed separate written statements in which the averments made in the petition were denied. The age, avocation and 4 income of the claimant and the medical expenses are denied.
It was pleaded by respondent No.1 that the petition itself is false and frivolous in the eye of law. It was further pleaded that the rider of the motorcycle was having valid driving licence at the time of the accident. It was further pleaded that the vehicle was insured with respondent No.2 and as on the date of the accident the Insurance policy was valid and the liability if any has to be on the respondent No.2.
It was pleaded by respondent No.2 that the driver of the offending vehicle did not have valid driving licence as on the date of the accident. The liability is subject to terms and conditions of the policy. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, they sought for dismissal of the petition. 5
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1, Dr.Ujjinappa was examined as PW-2 and Dr.Kodandaram as PW-3 and got exhibited documents namely Ex.P1 to Ex.P21. On behalf of the respondents, no witness was examined but got exhibited document 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.2,28,264/- 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, this appeal has been filed.
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6. The learned counsel for the claimant has raised the following contentions:
Firstly, due to the accident the claimant has suffered head injury, he has examined the Ophthalmologist and the doctor has assessed the disability of 15% eyesight and he has also examined the Orthopedic surgeon who has assessed the disability of 40% to particular limb, but the Tribunal has wrongly taken whole body disability at 5% and also failed to grant any compensation for 'loss of future income due to disability'.
Secondly, claimant has suffered grievous injuries, he was inpatient for a period of 23 days, he has suffered lot of pain during treatment. The compensation awarded by the Tribunal for 'pain and sufferings', 'loss of amenities' and other incidental expenses is on the lower side. Hence, he sought for allowing the appeal.7
7. On the other hand, the learned counsel for the Insurance Company has raised the following contentions:
Firstly, the claimant has examined the Ophthalmologist who has deposed that there is eyesight at 6/60 and there is no mention with regard to the injury to the right eye and he has also deposed regarding injury to the eye and in the disability certificate also nothing has been mentioned relating to the eye sight disability. In respect of Orthopedic surgeon is concerned, he has assessed the limb disability as 30%. Therefore, considering the age and avocation of the claimant the Tribunal has rightly assessed the whole body disability at 5%. Since the 5% disability has not come in the way of his earnings since he was aged about 65 years, the Tribunal has rightly not granted any compensation under the head 'loss of future income due to disability'. 8
Secondly, considering the injuries suffered by the claimant and considering the age and avocation, the overall compensation awarded by the Tribunal is just and reasonable. Hence, he sought for dismissal of the appeal.
8. Heard the learned counsel for the parties. Perused the judgment and award.
9. It is not in dispute that the claimant suffered injuries in the accident occurred due to rash and negligent driving of the offending vehicle by its driver.
Due to the accident the claimant suffered injury to the frontal bone, fracture of body of mandible and bilateral condylar process of mandible with interior dislocation of bilateral tempor mandibular joints, fracture of hard palate, fracture of roof of right orbit and severe injury to the left ear and other blood 9 injuries all over the body. He has examined Orthopedic surgeon as PW-2. In his evidence he has deposed that the claimant has suffered paralysis of 5th and 7th nerves and there is eye sight at 6/60 and there is a disability of 15%. He has also examined the Ophthalmologist as PW-3. In his evidence he has deposed that the claimant has suffered permanent disability of particular limb at 30%. Considering the age of the claimant and considering the evidence of the doctor and considering the injuries suffered by the claimant I am of the opinion that the whole body disability can be assessed at 15%.
Even though the claimant claims that he was earning Rs.25,000/- at the time of the accident, he has not produced any evidence with regard to his income. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the 10 accident has taken place in the year 2017, the notional income has to be taken at Rs.11,000/- p.m. The claimant was aged about 65 years at the time of the accident and multiplier applicable to his age group is '7'. Thus, the claimant is entitled for compensation of Rs.1,38,600/- (Rs.11,000*12*7*15%) on account of 'loss of future income'.
The claimant was treated as inpatient for more than 23 days in the hospital and thereafter, has received further treatment. 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.30,000/- to Rs.50,000/- and 'loss of income during laid-up period' for a period of two months, i.e., Rs.22,000/- (Rs.11,000*2).
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The compensation awarded by the Tribunal under other heads is just and reasonable.
10. Thus, the claimant is entitled to the following compensation:
As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 30,000 50,000 Medical expenses 1,43,264 1,43,264 Food, nourishment, 15,000 15,000 conveyance and attendant charges Loss of income during 0 22,000 laid up period Loss of amenities 40,000 40,000 Loss of future income 0 138,600 Total 2,28,264 4,08,864 The claimant is entitled to a total compensation of Rs.4,08,864/-.
The Insurance Company is directed to deposit the compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the 12 date of realization, within a period of six weeks from the date of receipt of copy of this judgment.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE Cm/-