Karnataka High Court
Sri Vijaya Poojary vs The Managing Partner on 29 July, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:29770
MFA No. 2349 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 2349 OF 2019 (MV)
BETWEEN:
SRI VIJAYA POOJARY
AGED ABOUT 37 YEARS
S/O LATE SHANKARA POOJARY
R/O BOBBARYANAMAKKI MANE
MARKODU, KOTESHWARA VILLAGE
KUNDAPURA TALUK, UDUPI DISTRICT-576201.
...APPELLANT
(BY SRI. GURURAJA SHETTY K .,ADVOCATE)
AND:
1. THE MANAGING PARTNER
AGED ABOUT 32 YEARS
M/S DURGAMBA MOTORS
NH-66 HANGALURU
KUNDAPURA TALUK
UDUPI DISTRICT-576201.
Digitally signed by
HEMALATHA A 2. THE NEW INDIA INSURANCE CO.LTD
Location: HIGH KUNDAPURA BRANCH
COURT OF
KARNATAKA KUNDAPURA TALUK-576201
REP BY ITS DIVISIONAL MANAGER
...RESPONDENTS
(BY SRI.ANUP SEETHARAMA RAO., ADVOCATE FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 19.06.2023)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:10.10.18
PASSED IN MVC NO.676/17 ON THE FILE OF THE ADDITIONAL
DISTRICT JUDGE & ADDITIONAL MACT, UDUPI [SITTING AT
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NC: 2024:KHC:29770
MFA No. 2349 of 2019
KUNDAPURA], KUNDAPURA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
ORAL JUDGMENT
1. 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 10.10.2018 passed by MACT, Udupi (Sitting at Kundapura) in MVC No.676/2017.
2. Facts giving rise to the filing of the appeal briefly stated are that on 09.06.2017 when the claimant was proceeding on motorcycle bearing registration No.KA-30- H-7330 from Kundapura side to Ampar side near Primary School, Nellikatte, at that time, private bus bearing registration No.KA-20-C-3257 being driven by its driver at a high speed and in a rash and negligent manner, dashed -3- NC: 2024:KHC:29770 MFA No. 2349 of 2019 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 respondents appeared through counsel and filed written statements denying the averments made in the claim petition.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter, recorded the evidence. The claimant, in order to prove the case, examined himself as PW-1, and Dr.Ullas Shetty was examined as PW-2, and got exhibited documents namely -4- NC: 2024:KHC:29770 MFA No. 2349 of 2019 Ex.P1 to Ex.P11. On behalf of the respondents, no witness was examined but 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.8,07,000/- 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 has submitted as follows:
a) Firstly, the Tribunal erred in assuming the monthly income of the claimant as Rs.9,000/-, despite evidence showing he earned Rs.18,000/- per month by working as a mason.-5-
NC: 2024:KHC:29770 MFA No. 2349 of 2019
b) Secondly, the claimant has examined the doctor as PW-2. Based on the evidence of the doctor, the Tribunal has rightly assessed the whole body at 35%.
c) Lastly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 15 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. But the Tribunal has failed to grant any compensation towards 'loss of amenities'. Considering the same, the compensation awarded by the Tribunal under the head of 'pain and sufferings' and other incidental expenses are on the lower side.
With the above contentions, learned counsel for the appellant sought to allow the appeal.
7. On the other hand, the learned counsel for the Insurance Company has submitted as follows: -6-
NC: 2024:KHC:29770 MFA No. 2349 of 2019
a) Firstly, 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.
b) Secondly, PW-2 is not a doctor, who treated the claimant, he is a Medico Legal Consultant and not a surgeon. Consequently, the whole body disability assessed by the Tribunal at 35% is excessive.
c) Thirdly, 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.
With the above contentions, learned counsel for the Insurance Company sought to dismiss the appeal.
8. Heard the learned counsel for the parties and perused the judgment and award of the Tribunal. -7-
NC: 2024:KHC:29770 MFA No. 2349 of 2019
9. It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 09.06.2017 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 2017, notional income shall be taken at Rs.11,000/- p.m.
11. As per wound certificate, the claimant has sustained bilateral black eye present, reddish contusion on the lower lip, reddish contusion on the back of neck with central cord syndrome with partial paralysis of all four limbs, reddish contusion on right shoulder, reddish contusion on left shoulder. The doctor in his evidence has stated that the -8- NC: 2024:KHC:29770 MFA No. 2349 of 2019 claimant has suffered disability of 35% to whole body. The Tribunal after considering the evidence of PW-2 and materials available on record has rightly assessed the whole body disability at 35%. The claimant is aged about 32 years at the time of the accident and multiplier applicable to his age group is '16'. Thus, the claimant is entitled for compensation of Rs.739,200/- (Rs.11,000*12*16*35%) on account of 'loss of future income'.
12. 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.66,000/- (Rs.11,000*6 months) under the head 'loss of income during laid up period' as against Rs.4,800/- awarded by the Tribunal towards 'bed rest' and Rs.54,000/- awarded towards 'loss of earning during treatment period'.
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NC: 2024:KHC:29770 MFA No. 2349 of 2019
13. The claimant was hospitalized as an inpatient for more than 15 days in the hospital and subsequently received further treatment. Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. Considering the prolonged pain during treatment as well as the permanent disability certified by the doctor, I am inclined to award a sum of Rs.30,000/- under the head of 'loss of amenities'.
14. Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.
15. Thus, the claimant is entitled to the following compensation:
As awarded As awarded
by the by this
Compensation under
Tribunal Court
different Heads
(Rs.) (Rs.)
Pain and sufferings 55,000 55,000
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NC: 2024:KHC:29770
MFA No. 2349 of 2019
Medical expenses 72,399 72,399
Food, nourishment, 16,000 16,000
conveyance and
attendant charges
Loss of income during 58,800 66,000
laid up period including
bed rest
Loss of amenities 0 30,000
Loss of future income 604,800 739,200
Total 806,999 978,599
Rounded off 807,000 978,600
16. In the result, the following order is passed:
ORDER
a) The appeal is allowed in part.
b) The judgment of the Claims Tribunal is modified.
c) The claimant is entitled to a total compensation of Rs.978,600/-.
d) The Insurance Company is directed to deposit the compensation amount along with interest @ 6% p.a. from the date of filing of the claim
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NC: 2024:KHC:29770 MFA No. 2349 of 2019 petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.
Sd/-
(H.T. NARENDRA PRASAD) JUDGE DM List No.: 1 Sl No.: 65