Partly allowed

Nitesh v. Vs Karthik Dhotre

Karnataka HC9 Jun 2021MFA/3810/2020

Case brief

AI extract

What is this about?

This is a Motor Accident Appeal filed by a claimant seeking enhancement of compensation against the Karnataka Motor Accident Claims Tribunal. The Tribunal had awarded Rs. 20,30,774. The High Court found the Tribunal erred in assessing income and disability, enhancing the total compensation to Rs. 23,17,424.

What did the court decide?

The appeal was disposed of with the Claims Tribunal judgment modified to award total compensation of Rs. 23,17,424 with interest at 6% p.a.

Nitesh v Vs Karthik Dhotre — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF JUNE 2021

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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M.F.A. NO.3810 OF 2020 (MV-I)

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BETWEEN:

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NITESH V S/O VASANTHA RAJU AGED ABOUT 21 YEARS C/O DR. VINODINI P F3, HARICHARAN RESIDENCY RAMANUJA ROAD MYSURU-570 001.

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... APPELLANT

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(BY SRI VIVEKANANDA T.P. ADVOCATE)

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AND:

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KARTHIK DHOTRE

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S/O BHIMA RAJU AGED ABOUT 21 YEARS R/AT NO.4, HOSPET ONI IKAL IIKAL CMC HUNGUND BAGALKOT-587118.

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VISHWANATH SHASHIDHAR BIJJAL S/O SHASHIDHAR AGED ABOUT 51 YEARS M.J. NAGAR, 6TH CROSS A/P/T HOSPETH, CITY HOSPET DIST. BALLARY-583 101

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NATIONAL INSURANCE CO.LTD BRANCH OFFICE, NO.656/C IST FLOOR, 17TH MAIN, 5TH CROSS SARSWATHIPURAM-570 009 MYSURU.

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... RESPONDENTS

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(BY SRI. S. RUPESHKUMAR FOR R-1 SRI. VISHWANATH S.B. FOR R2- SERVED SMT. ARUNA ADVOCATE FOR R3)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.01.2020 PASSED IN MVC NO.229/2019 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE AND MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, HEMANT CHANDANGOUDAR J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) is filed by the claimant seeking enhancement of the amount of compensation, against the judgment dated 29.01.2020 passed by the III Additional District Judge and Motor Accident Claims Tribunal, Mysuru in MVC No.229/2019.

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Facts leading to filing of this appeal briefly stated are that on 08.08.2018 at about 6.20 p.m. when the claimant was proceeding on a motorbike bearing registration No.KA-35-EG-0045 as a pillion rider, the rider of

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the bike dashed against the cement slab and due to the impact, the petitioner fell down and sustained grievous injuries.

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The claimant thereupon filed a petition under Section 166 of the Act inter alia on the ground that the claimant was admitted to J.S.S. Hospital, wherein, he took treatment as in-patient from 08.08.2018 to 15.08.2018 and thereafter he took treatment at Narayana Hrudayalaya from 18.08.2018 to 22.10.2018. It was further pleaded that the claimant incurred huge amount towards medical and other incidental expenses. It was further pleaded he was pursuing engineering course and also earning Rs.6,000/- p.m. by doing part time job and due to the injury sustained by him he is unable to perform his activities as he used to perform prior to the accident. It was further pleaded that the accident occurred only due to the rash and negligent riding by the rider of the motorbike i.e. respondent No.1. The Insurance company filed written statement contending that the liability to pay the compensation is subject to terms and condition of the policy and also the rider of the motor bike was not

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holding valid driving license to ride the bike and thus violated the terms and conditions of the policy and as such is not liable to pay the compensation. The age, income and occupation of the petitioner was denied and also medical expenses alleged to have been spent by the petitioner was also denied. Hence on this grounds sought for dismissal of the petition.

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On the basis of the pleadings of the parties, the

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Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant, in order to prove his case, examined himself as PW-1 and Dr. Girish Chandra as (PW2) and got exhibited documents namely Ex.P1 to Ex.P20. The respondents examined one witness as R.W.1- Karthik Dhotre but did not mark any 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 motorbike by its rider, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.20,30,774/along with interest at the rate of 6% p.a. Being aggrieved,

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this appeal has been filed by the claimant seeking enhancement of the amount of compensation.

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Learned counsel for the claimant submitted that the Tribunal has grossly erred in assessing the income of the claimant as Rs.4,500/- per month and in any case, the same ought to have been taken as per the guidelines framed by the Karnataka State Legal Services Authority. It is further submitted that the Tribunal has erred in assessing the functional disability at 6% when the doctor P.W.2 has assessed the functional disability at 29.5%. It is further submitted that the Tribunal has not awarded any compensation towards "loss of income during laid-up period". Hence, he seeks enhancement of compensation.

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On the other hand, learned counsel for the insurance company submitted that no evidence has been adduced by the claimants to prove the income of the claimant before the Tribunal and that the Tribunal has rightly taken the income of the claimant at Rs.4,500/- per month. It is further submitted that the disability assessed by the Tribunal and the amount of compensation awarded by the

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Tribunal under all the heads is just and proper and does not call for any interference.

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We have considered the submissions made by

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learned counsel for the parties and have perused the record. The only question which arises for our consideration in this appeal is with regard to the quantum of compensation. Admittedly, the claimant has not produced any evidence with regard to proof of his income. Since the accident is of the year 2018, notional income of the claimant is to be assessed as per the guidelines issued by the Karnataka Legal Services Authority, which comes to Rs.12,500/- per month. PW.2 Dr. Girish Chandra has stated in his evidence that the claimant has suffered disability to the extent of 29.5%. The wound certificate at Ex.P.6 indicates that the claimant had suffered the following injuries:

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(1) Billateral Femur Fracture

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(2) Superficial abrasion over left elbow, left dorsum of

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foot, left knee joint, right hand, elbow

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(3) Degloving injury over right lumbar and loin region.

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The Tribunal contrary to the evidence of the doctor P.W.2 and the wound certificate at Ex.P.6 has assessed the functional disability at 6% instead of assessing the functional disability at 1/3 of 29.5% which comes to 10%. and the same is assessed at 10% to the whole body. The accident is of the year 2018 and the claimant was aged 20 years as on the date of the accident. Therefore, the claimant is entitled to Rs.2,70,000/- (Rs.12,500 x 12 x 18 x 10%) under the head 'loss of earning capacity'.

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Considering the fact that the claimant was inpatient for a period of 51 days and also having regard to the nature of injuries sustained by the claimant it would be appropriate to award a sum of Rs.75,000/- towards loss of income during laid-up period that is for 6 months. The compensation awarded towards medical expenses and other conventional heads is just and proper and the same remains unaltered.

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Thus, the claimant is held entitled to total compensation of Rs.23,17,424/-. The enhanced compensation of Rs.2,86,650/- shall carry interest at the rate

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of 6% p.a. from the date of petition till realization. To the aforesaid extent, the judgment of the claims Tribunal is modified.

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Accordingly, the appeal is disposed of.

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Sd/JUDGE

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Sd/JUDGE

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Nitesh v. Vs Karthik Dhotre

Case brief

What is this about?

What did the court decide?

Nitesh v. Vs Karthik Dhotre

Case brief

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