Karnataka High Court
Ningaiah vs The Manager on 29 November, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2023:KHC:43144
MFA No. 114 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 114 OF 2021 (MV)
BETWEEN:
NINGAIAH
S/O KALAIAH
AGED ABOUT 51 YEARS
R/AT GANJAM
S R PATNA TOWN AND TALUK
MANDYA DISTRICT-571438
...APPELLANT
(BY SRI. VIJAY KUMAR T.,ADVOCATE)
AND:
1. THE MANAGER
UNITED INDIA INSURANCE CO. LTD.
KANTHARAJ URS ROAD
Digitally signed
by MYTHRI ARCADE
DHANALAKSHMI NEAR SARASWATHI TALKIES
MURTHY
Location: High
SARASWATHIPURAM, MYSURU-570009.
Court of
Karnataka
2. E FRANCIS
MAJOR
S/O LATE EDWARD
R/AT NO.1296, 2ND STAGE
7TH CROSS, MOTHER THERESA COLONY
RAJIV NAGARA, MYSURU-570019
...RESPONDENTS
(BY SMT. HARINI SHIVANANDA., ADVOCATE FOR R1:
NOTICE TO R2 IS DISPENSED WITH)
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MFA No. 114 of 2021
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 08.11.2019,
PASSED IN MVC NO.182/2019, ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND MACT,
SRIRANGAPATNA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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 8.11.2019 passed by MACT, Srirangapatna in MVC No.182/2019.
2. Facts giving rise to the filing of the appeal briefly stated are that on 21.12.2018 when the claimant was proceeding on bicycle on Ring Road near Pushpasharma -3- NC: 2023:KHC:43144 MFA No. 114 of 2021 junction, Mysore, at that time, motorcycle bearing registration No.KA-09-HL-9896 being ridden by its driver at a high speed and in a rash and negligent manner, dashed to 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 charges, 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 respondents appeared through counsel and only respondent No.2 filed written statement in which the averments made in the petition were denied.
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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.N.Karunakar was examined as CW-1 and got exhibited documents namely Ex.P1 to Ex.P29. On behalf of the respondents, neither any witness was examined nor any document was produced. 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.184,070/- along with interest at the rate of 9% 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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a) Firstly, even though the claimant claims that he was working in GRS Fantasy Park and earning Rs.15,000/- per month and produced salary receipt at Ex.P-13 and he has also agricultural income, but the Tribunal has taken the notional income as merely as Rs.10,387/- p.m.
b) Secondly, the claimant has examined the doctor as CW-1. The doctor in his evidence has stated that the claimant has suffered permanent physical disability of 25%. But the Tribunal has taken the whole body disability at 8%, which is on the lower side.
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.
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. -6-
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7. On the other hand, the learned counsel for the Insurance Company has raised following counter contentions:
a) Firstly, even though the claimant claims that he was earning Rs.15,000/- per month and produced salary receipt at Ex.P-13, but he has not produced any other supporting documents to establish his income and he has not examined his employer. In the absence of proof of income, the Tribunal has rightly assessed the income of the claimant notionally.
b) Secondly, the Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 8%.
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 call for interference.-7-
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d) Lastly, in view of the Division Bench decision of this Court in the case of Ms.Joyeeta Bose and others -v- 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 9% p.a. on the compensation amount 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 of the Tribunal.
9. It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 21.12.2018 due to rash and negligent driving of the offending vehicle by its driver.
10. The claimant claims that he was working in GRS Fantasy Park and earning Rs.15,000/- per month and produced Ex.P13 salary receipt and he also claims that he was getting agricultural income. As per Ex.P-13, he was -8- NC: 2023:KHC:43144 MFA No. 114 of 2021 getting salary of Rs.11,500/- p.m. He has not produced any documents to show that he was getting any agricultural income. Therefore, considering the evidence of the claimant and Ex.P-13, income of the claimant is taken at Rs.11,500/- p.m.
11. As per wound certificate, the claimant has sustained pain and swelling of lumbar region and both joints. The doctor in his evidence has stated that the claimant has suffered permanent physical disability of 25%. There is restrictions in movements. Considering the evidence of the doctor and considering the nature of injuries, the whole body disability can be taken at 10%. The claimant is 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 compensation of Rs.124,200/- (Rs.11,500*12*9*10%) on account of 'loss of future income'.
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12. 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.34,500/- (Rs.11,500*3 months) under the head 'loss of income during laid up period'.
13. The claimant was treated as inpatient for more than 15 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.30,000/- to Rs.45,000/- and under the head of 'loss of amenities' from Rs.15,000/- to Rs.40,000/-.
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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 30,000 45,000
Medical expenses 13,545 13,545
Food, nourishment, 15,000 15,000
conveyance and
attendant charges
Loss of income during 20,774 34,500
laid up period
Loss of amenities 15,000 40,000
Loss of future income 89,748 124,200
Total 184,067 272,245
Rounded off 184,070 272,250
16. In the result, the following order is passed:
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MFA No. 114 of 2021
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.272,250/-.
d) In view of judgment of the Division Bench of this
Court in the case of 'MS.JOYEETA BOSE' (supra), the enhanced compensation shall carry interest at 6% per annum.
e) The Insurance Company is directed to deposit the compensation amount along with interest 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 DM List No.: 3 Sl No.: 35