Partly allowed

Kumar v. P Mohan

Karnataka HC29 Nov 2022MFA/3514/2020

Case brief

AI extract

What is this about?

In this miscellaneous first appeal under Section 173(1) of the Motor Vehicles Act, 1988, the High Court enhanced the compensation awarded by the Claims Tribunal from Rs.4,88,000 to Rs.6,72,700 for injuries sustained in a road traffic accident, reducing the interest rate from 9% to 6% per annum.

What did the court decide?

The claimant is entitled to a total compensation of Rs.6,72,700/- with interest at 6% p.a. from the date of filing the claim petition.

Kumar Vs P Mohan — Motor Accident Claims | Karnataka HC (2022)

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MFA No. 3514 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF NOVEMBER, 2022

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BEFORE

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

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MISCELLANEOUS FIRST APPEAL NO.3514 OF 2020(MV-I)

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BETWEEN:

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KUMAR S/O KRISHNEGOWDA NOW AGED ABOUT 39 YEARS R/A KARIGOWDANAHALLIVILLAGE KUNDURU HOBLI,ALURU TALUK. …APPELLANT

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(BY SRI. RAGHU R., ADVOCATE)

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AND:

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P MOHAN

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MAJOR S/OPONNUSWAMY R/A CHIKKAMUDURLPOST PUTTURTALUK

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DAKSHINA KANNADA DISTRICT 574201.

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THEMANAGER

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Digitally signed by C MALATHI Location: High Court of Karnataka

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UNITED INDIA ISURANCE CO.LTD.,

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SHRI VENKATESHWARA BUILDING

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B.M. ROAD, HASSAN 573201. …RESPONDENTS

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(BY SMT. MANJULA N TEJASWI , ADVOCATE FOR R2:

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NOTICE TO R1 IS DISPENSED WITH V/O DATED: 29.11.2022)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:1.02.2018, PASSED IN MVC NO.1901/2016, ON THE FILE OF THE 5TH ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE CLAIM

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MFA No. 3514 of 2020

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PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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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 01.02.2018 passed by the 5^th Addl. District & Sessions Court and Addl. MACT at Hassan in MVC No.1901/2016.

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Facts giving rise to the filing of the appeal briefly stated are that on 18.03.2016 at about 11.45 a.m.

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the claimant was proceeding on motorcycle bearing registration No.KA-12/Q-5321. When he reached near Barathavalli village on Hassan – Sakaleshpur road, at that time, a tanker bearing registration No.KA-21/C-6008 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant.

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MFA No. 3514 of 2020

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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 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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On service of notice, the respondent No.2 appeared through counsel and filed written statement 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 accident was due to the rash and negligent riding of the vehicle by the claimant himself. It was further pleaded that the driver of the offending vehicle did not have valid driving licence as on the date of

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MFA No. 3514 of 2020

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the accident. 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, 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 exparte.

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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 PW1 and Dr.Gangurihal was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P17. On behalf of the respondents, neither any witness was examined nor 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

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MFA No. 3514 of 2020

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claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.4,88,000/along with interest at the rate of 9% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being not satisfied, the claimant has filed this appeal.

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Sri Raghu, the learned counsel for the claimant has raised the following contentions:

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Firstly, even though the claimant claims that he was doing contractor work and earning Rs.25,000/- per month, but the Tribunal has taken the notional income as only Rs.6,500/- per month.

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Secondly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 28 days. 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

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MFA No. 3514 of 2020

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'pain and sufferings' and other incidental expenses are on the lower side. The Tribunal has failed to award any compensation under the head 'loss of amenities'. Hence, he sought for enhancement of compensation.

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On the other hand, Smt.Manjula N.Tejaswi, the learned counsel appearing for the Insurance Company has raised the following contentions:

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Firstly, even though the claimant claims that he was earning Rs.25,000/- per month, he has not produced any documents to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally.

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Secondly, 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.

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Thirdly, in view of the law laid down by a Division Bench of this Court in the case of MS.JOYEETA BOSE

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MFA No. 3514 of 2020

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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 9% p.a. is on the higher side. Hence, she sought for dismissal of the appeal.

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Heard the learned counsel for the parties and

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perused the judgment and award.

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It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 18.03.2016 due to rash and negligent driving of the tanker lorry bearing registration No.KA-21/C-6008 by its driver.

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The claimant claims that he was earning Rs.25,000/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 2016, the notional income has to

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MFA No. 3514 of 2020

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be taken at Rs.9,500/- p.m. As per wound certificate, the claimant has sustained the following injuries:

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(i) Comminuted subtrochanteic fracture of shaft of right femur with open cut laceration wound right thigh.

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(ii) Right hand multiple metacarpal fracture with CLW 4^th web.

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(iii) Right leg abrasion wound with friction burns middle lower 1/3 junction.

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(iv) Right foot CLW 2^nd web dorsl foot.

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(v) Pain and swelling of right knee.

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Taking into consideration the deposition of the doctor, PW-2 and injuries mentioned in the wound certificate, the Tribunal has rightly taken the whole body disability at 15%. The claimant was aged about 35 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.2,73,600/- (Rs.9,5001216*15%) on account of 'loss of future income'.

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MFA No. 3514 of 2020

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Due to the accident, the claimant has suffered grievous injuries. He was treated as inpatient for more than 28 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.10,000/- to Rs.40,000/-, ‘food, conveyance and nourishment’ from Rs.10,600/- to Rs.20,600/-. The claimant is also entitled to compensation under the head 'loss of amenities' at Rs.30,000/- and 'loss of income during laid-up period' for a period of three months, i.e., Rs.28,500/- (Rs.9,500*3).

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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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MFA No. 3514 of 2020

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Thus, the claimant is entitled to the following

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compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	10,000	40,000
Medical expenses	2,55,000	2,55,000
Food, nourishment, conveyance and attendant charges	10,600	20,600
Loss of income during laid up period	0	28,500
Loss of amenities	0	30,000
Loss of future income	1,87,000	2,73,600
Surgery cost	25,000	25,000
Total	4,87,600	6,72,700
Rounded off to	4,88,000

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In the result, the appeal is allowed in part. The

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judgment of the Claims Tribunal is modified.

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MFA No. 3514 of 2020

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The claimant is entitled to a total compensation of Rs.6,72,700/- as against Rs.4,88,000/- 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.

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The Insurance Company is directed to deposit the enhanced compensation amount along with interest @ 6% p.a. 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.

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In view of the order dated 29.11.2022 passed by this Court, the claimant is not entitled to interest for the delayed period of 677 days in filing the appeal.

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Sd/JUDGE

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List No.: 2 Sl No.: 5

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Kumar v. P Mohan

Case brief

What is this about?

What did the court decide?

Kumar v. P Mohan

Case brief

What is this about?

What did the court decide?

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