Karnataka High Court
L.Basavaraj vs Mohammed Rareeq on 10 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 10TH DAY OF OCTOBER 2022
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.2714 OF 2020(MV)
BETWEEN:
L.Basavaraj,
S/o Lakshman,
Aged about 57 years,
Security work in Anjaneya Cotton Mill,
R/o 10, Chikkanahally,
Hosa Badavane,
Davanagere.
Since appellant attacked by paralysis,
He is represented by
His son Ranjitha S/o L. Basavaraj,
Aged about 23 years. ... Appellant
(By Sri.R.Shashidhara., Advocate)
AND:
1. Mohammed Rafeeq,
S/o Mohaboob Sab,
Major,
R/o Near ESI Hospital,
Opposite to Government School,
Beedi Layout,
Davanagere-577001.
2. Mohammed Rafeeq Khan
S/o K.R. Mohaboob Sab,
Major,
R/o No.158, ESI Hospital Road,
2
Beedi Layout,
Davanagere-577001.
3. The Manager,
HDFC ERGO General Insurance Co. Ltd.,
#25/1, 2nd Floor,
Shankaranarayana Building,
Building No.2, M.G. Road,
Bangalore-560 001. ... Respondents
(By Sri.B.Pradeep, Advocate for R3:
Notice to R1 & R2 is dispensed with
V/O dated: 10.10.2022)
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:15.02.2020 passed
in MVC No.560/2019 on the file of the Principal Senior Civil
Judge and Member, MACT-IV, Davanagere, partly allowing
the claim petition for compensation and seeking
enhancement of compensation.
This MFA, coming on for admission, this day, this
Court, delivered the following:
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 and decree dated 15.02.2020 passed by the Principal Senior Civil Judge and MACT-IV at Davanagere in MVC No.560/2019.
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2. Facts giving rise to the filing of the appeal briefly stated are that on 18.05.2019 at about 9.30 a.m., the claimant was proceeding on his bike on Bada Cross. At that time, a Maruthi Swift car bearing registration No.KA-17/N-7807 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 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.
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4. On service of notice, the respondent Nos.1 to 3 appeared through counsel and filed written statements in which the averments made in the petition were denied. The age, avocation and income of the claimant and the medical expenses are denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that 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. 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 and Dr.Prabhu Basavanagowda was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P11. On behalf of the respondents, neither any witness was examined nor 5 got exhibited documents. 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.1,00,200/- along with interest @ 8% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.
6. Sri R.Shashidhara, the learned counsel for the claimant has raised the following contentions:
Firstly, even though the claimant claims that he was doing Security Guard work and earning Rs.15,000/- per month, but the Tribunal has taken the notional income as only Rs.9,000/- per month.
Secondly, due to the accident, the claimant has sustained grievous injuries. He was treated as 6 inpatient for a period of 20 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 and he has to suffer the disability and unhappiness throughout his life. Considering the same, the compensation granted by the Tribunal under the heads of 'pain and sufferings', 'loss of amenities' and other heads are on the lower side. Hence, he sought for enhancement of compensation.
7. On the other hand, Sri B.Pradeep, the learned counsel for the Insurance Company has raised following counter contentions:
Firstly, 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. 7
Secondly, the injuries suffered by the claimant are minor in nature and he was inpatient for only 5 days. 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 compensation.
Thirdly, in view of the law laid down by a Division Bench of this Court in the case of MS.JOYEETA BOSE AND OTHERS vs. VENKATESHAN.V AND OTHERS (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the rate of interest awarded by the Tribunal at 8% p.a. is on the higher side. Hence, he sought for dismissal of the appeal.
8. Heard the learned counsel for the parties and perused the judgment and award.
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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, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2019, the notional income has to be taken as Rs.14,000/- p.m. Considering the evidence of the doctor and considering the injuries suffered by the claimant, the Tribunal has rightly assessed the whole body disability as 5%. The claimant was aged about 56 years at the time of the accident and multiplier applicable to his age group is '9'. Thus, the claimant is entitled for 9 compensation of Rs.75,600/- (Rs.14,000*12*9*5%) on account of 'loss of future income'.
Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He was treated as inpatient for more than 5 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 and unhappiness 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/-, 'loss of amenities' from Rs.10,000/- to Rs.35,000/-, 'food, conveyance, nourishment and attendant charges' has to be granted at 8,000/- and 'loss of income during laid-up period' for a period of two months, i.e., Rs.28,000/-.
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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:
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 2,600 2,600 Food, nourishment, 0 8,000 conveyance and attendant charges Loss of income during 9,000 28,000 laid up period Loss of amenities 10,000 35,000 Loss of future income 48,600 75,600 Total 1,00,200 1,99,200
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.1,99,200/- as against Rs.1,00,200/- awarded by the Tribunal.
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In view of the law laid down by a Division Bench of this Court in JOYEETA BOSE (supra) the enhanced compensation carries interest @ 6% p.a. The Insurance Company is directed to deposit the compensation amount along with interest @ 8% p.a. (interest @ 6% p.a. on the enhanced compensation) 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.
Sd/-
JUDGE Cm/-