Partly allowed

Sri. Arkesh v. Sri. Shivalingaiah

Karnataka HC3 Jun 2022MFA/1102/2019

Case brief

AI extract

What is this about?

The High Court considered an appeal against an award of compensation in a motor vehicle accident claim. The court modified the tribunal's award by enhancing the compensation specifically for loss of future income based on reduced disability and notional income assessments.

What did the court decide?

Apportionment of compensation heads modified; total compensation enhanced to Rs. 24,76,952 plus interest.

Sri. Arkesh Vs Sri. Shivalingaiah — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF JUNE 2022

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BEFORE

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THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD

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MFA No.1102 OF 2019(MV)

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BETWEEN:

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SRI. ARKESH S/O SHIVANNA, AGED ABOUT 27 YEARS, R/AT YELETHOTADAHALLI VILLAGE, VIRUPAKSHIPURA HOBLI, CHANNAPATNA TALUK, RAMANAGARA DISTRICT – 562 160. (BY SRI. RAJU.S., ADVOCATE)

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…APPELLANT

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AND:

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SRI.SHIVALINGAIAH, S/O SEERAIAH, MAJOR BY AGE, R/AT NO.107, VANDARAGUPPE VILLAGE, KASABA HOBLI, CHANNAPATNA TALUK, RAMANAGARA DISTRICT – 562 160.

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THE NEW INDIA INSURANCE CO., LTD., NO.2241/4, GIRIYAMMA SHAMBUGOWDA COMPLEX, CHURCH ROAD, CHANNAPATNA TOWN – 562 160. REPRESENTED BY ITS BRANCH MANAGER.

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…RESPONDENTS

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(BY SRI.C.SHANKARA REDDY, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST JUDGMENT AND AWARD DATED 06.12.2018 PASSED IN MVC NO.296/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, ADDITIONAL MACT, CHANNAPATTANA, RAMANAGARA DISTRICT, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 173(1) of Motor

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Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant being aggrieved by the judgment and decree dated 06.12.2018 passed by the Senior Civil judge & JMFC, Addl. MACT, Channapattana, Ramanagar District in MVC

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No.296/2016.

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Facts giving rise to the filing of the appeal

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briefly stated are that on 29.05.2016 at about 09.30 P.M. when the claimant was going in motorcycle bearing Registration No.KA-51-EH-3021 and when he reached near Kuncheeranakatte of Kodamballi-

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Yelthotahalli Road, a dog suddenly came in front of him, then he stopped the vehicle, at that time, the rider of Hero Honda Splendor motorcycle bearing Registration No..KA-04-EZ-8049 came in high speed and in a rash and negligent manner and dashed against the motorcycle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section

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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 riding of the offending vehicle by its rider.

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On service of notice, the respondent No.2

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being an insurer has appeared through counsel and

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filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was not due to the rash and negligent riding of the offending vehicle by its rider. The liability is subject to terms and conditions of the policy. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.

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The respondent No.1 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.

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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. Veeresha U Mathad was

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examined as PW-2 and another witness as PW-3 and got exhibited documents namely Ex.P1 to Ex.P34. On behalf of the respondents, one witness was examined as RW-1 and got exhibited documents namely Ex.R1 to Ex.R4. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the offending vehicle 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.15,23,000/- 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, this appeal has been filed.

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Sri Raju.S, learned counsel for the claimant

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has raised the following contentions:

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Firstly, even though the claimant claims that he

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was working as a driver. To prove the same, he has

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produced driving licence as per Ex.P.8 and earning Rs.20,000/- per month, but the Tribunal has taken the notional income as merely as Rs.7,000/- per month.

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Secondly, PW-2, the doctor has stated in his evidence that the claimant has suffered permanent neurological disability which is not going to improve in future. Therefore, he assessed the whole body disability at 59%. But the Tribunal has considered the whole body disability at 50% is on lower side and the claimant is entitled for addition of future prospects. In support of his contention, he has relied upon the judgment of the Hon’ble Apex Court in the case of PAPPU DEO YADAV vs. NARESH KUMAR AND OTHERS’ 2020 SCC Online SC 752 and ‘ERUDHAYA PRIYA vs. STATE EXPRESS TRANSPORT CORPORATION LTD. 2020’ SCC Online SC 601.

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Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as

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inpatient for a period of 33 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 granted by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other heads are on the lower side. The Tribunal has failed to grant any compensation towards ‘Marriage Prospects’. Hence, he sought for enhancement of compensation.

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Per contra, Sri C. Shankar Reddy, the learned counsel for the Insurance Company has raised following counter contentions:

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Firstly, even though the claimant claims that he was earning Rs.20,000/- per month, except producing driving licence, he has not produced any Bank Statement or examined his employer to establish his

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income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally.

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Secondly, PW-2, the doctor has stated in his evidence that the claimant has suffered permanent neurological disability. The Tribunal considering the injuries sustained by the claimant, has rightly assessed the whole body disability at 50%.

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Thirdly, 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. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties and perused the judgment and award and original records.

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It is not in dispute that the claimant has

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sustained injuries in the road traffic accident occurred

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due to rash and negligent driving of the offending vehicle by its driver.

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The claimant claims that he was earning Rs.20,000/- per month as a driver and produced driving license but he has not produced any bank statement to show that he was getting monthly income of Rs.20,000/-. 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 2016, the notional income has to be taken at Rs.9,500/- p.m.

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As per wound certificate, the claimant has sustained multiple fracture of head frontal paretial region, abrasions on hands and legs (multiple), bleeding from ears and left LMN facial palsy etc. PW-2, the doctor has stated in his evidence that claimant has suffered permanent neurological disability which is not going to improve in future. Therefore, he assessed the

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whole body disability at 59%. Therefore, taking into consideration the deposition of the doctor, PW-2, Wound Certification Ex.P7, Neuro Psychological Assessment Report Ex.P15, Discharge Summary Ex.P28 and Ex.P29, I am of the opinion that the whole body disability can be assessed at 59%.

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Since he was aged about 25 years and working as a driver, due to the said disability, he has suffered permanent neurological disability and he was not in a position to do his day today work. Under these circumstances, in view of the law laid down by the Hon’ble Apex Court in the case of ‘PAPPU DEO YADAV’ (supra) and ‘ERUDHAYA PRIYA’ (supra), the claimant is entitled for addition of future prospects. Therefore as per the law laid down by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE

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CO. LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017

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SC 5157], 40% of the established income has to be

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added towards ‘future prospects’. Thus the monthly income comes to Rs.13,300/-

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The claimant is aged about 25 years at the time of the accident and multiplier applicable to his age group is ‘18’. Thus, the claimant is entitled for compensation of Rs.16,94,952/(Rs.13,3001218*59%) on account of 'loss of future income'.

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The nature of injuries suggests that the claimant must have been under rest and treatment for a period of 06 months. Therefore, the claimant is entitled for compensation of Rs.57,000/- (Rs.9,500*6 months) under the head ‘loss of income during laid up period’.

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Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the

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following compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	2,00,000	2,00,000
Medical expenses	4,25,000	4,25,000
Loss of income during laid up period	42,000	57,000
Loss of amenities	1,00,000	1,00,000
Loss of future income	7,56,000	16,94,952
Total	15,23,000	24,76,952

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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.24,76,952/- as against Rs.15,23,000/awarded by the Tribunal.

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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

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date of realization, within a period of six weeks from the date of receipt of copy of this judgment.

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Sd/JUDGE

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HA/-

Sri. Arkesh v. Sri. Shivalingaiah

Case brief

What is this about?

What did the court decide?

Sri. Arkesh v. Sri. Shivalingaiah

Case brief

What is this about?

What did the court decide?

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