Partly allowed

Sri. Mastanee S v. Sri. Santhosh Kumar Yadav

Karnataka HC27 Oct 2023MFA/1581/2018

Case brief

AI extract

What is this about?

The High Court enhanced compensation awarded in a motor vehicle accident claim. The court recalculated notional income and disability percentage, increasing future income loss and amenities. It also adjusted the interest rate from 7.5% to 6% per annum following a Division Bench precedent.

What did the court decide?

The appeal was allowed in part; the Tribunal's judgment was modified; the claimant is entitled to total compensation of Rs. 2,92,415/-. The Insurance Company is directed to deposit the amount with int

Sri. Mastanee S Vs Sri. Santhosh Kumar… — Contract and Commercial Disputes | Karnataka HC (2023)

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1 - NC: 2023:KHC:38093 MFA No. 1581 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 1581 OF 2018 (MV)

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BETWEEN:

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SRI. MASTANEE S W/O KADAR PASHA AGED ABOUT 48 YEARS R/AT NO.E-169 SREERAMA TEMPLE ROAD DODDAKANNALI BENGALURU-560 035.

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…APPELLANT

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(BY SRI. P S KAILAS SHANKAR., ADVOCATE)

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AND:

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Digitally signed by DHANALAKSHMI MURTHY Location: High Court of Karnataka

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SRI. SANTHOSH KUMAR YADAV S/O DOME YADAV R/AT NO.11, HARALUR MAIN ROAD SOMASANDRA PALYA H.S.R. LAYOUT SECTOR-2, BENGALURU.

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THE UNITED INDIA INS. CO. LTD. REGIONAL OFFICE 5TH FLOOR, KRUSHI BHAVAN NRUPATHUNGA ROAD HUDSON CIRCLE BENGALURU-560 027.

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…RESPONDENTS

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(BY SRI.A.RAVISHANKAR., ADVOCATE FOR R2: NOTICE TO R1 IS DISPENSED WITH V/O DATED: 27.10.2023)

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2 - NC: 2023:KHC:38093 MFA No. 1581 of 2018

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:22.06.2017 PASSED IN MVC NO.2006/2016 ON THE FILE OF XIX ADDITIONAL SCJ AND MACT (SCCH-17) BENGALURU, PARTLY ALLOWING THE CLAIM 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

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Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant being aggrieved by the judgment dated 22.06.2017 passed by MACT, Bangalore in MVC No.2006/2016.

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Facts giving rise to the filing of the appeal briefly stated are that on 28.01.2016 at about 6.00 a.m. when the claimant was proceeding on the extreme left side of 27^th Main, HSR Layout, 1^st Sector, near HSR Layout police station, at that time, a motorcycle bearing registration No.KA-01/EN-0073 being ridden by its rider at a high speed and in a rash and negligent manner, dashed to the

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3 - NC: 2023:KHC:38093 MFA No. 1581 of 2018

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claimant. As a result of the aforesaid accident, the claimant fell down, 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 she 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 riding of the offending vehicle by its rider.

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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. 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 driving of the vehicle by the claimant himself. The driver of the offending vehicle did not have valid driving licence as on the date of the accident. The liability is subject to terms and conditions of the policy. The age, avocation and income of the claimant

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4 - NC: 2023:KHC:38093 MFA No. 1581 of 2018

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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 Nos.1 and 3 did not appear before the Tribunal inspite of service of notice and were 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 herself was examined as PW-1 and Dr.Girish G. 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 riding of the offending vehicle by its rider, as a result of which, the claimant sustained injuries. The Tribunal further held that

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5 - NC: 2023:KHC:38093 MFA No. 1581 of 2018

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the claimant is entitled to a compensation of Rs.1,95,655/-

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along with interest at the rate of 7.5% p.a. (excluding future medical expenses) and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, the present appeal has been filed.

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The learned counsel for the claimant has raised the following contentions:

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a) Firstly, even though the claimant claims that she was working as maid servant and earning Rs.12,000/- per month, but the Tribunal has taken the notional income as merely as Rs.7,000/- p.m.

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b) Secondly, the claimant has examined the doctor as PW-2. The doctor in his evidence has stated that the claimant has suffered disability of 10% to whole body. But the Tribunal has taken the whole body disability at 7%, which is on the lower side.

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c) Lastly, due to the accident, the claimant has sustained grievous injuries. She was treated as inpatient

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6 - NC: 2023:KHC:38093 MFA No. 1581 of 2018

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for a period of 2 days. Even after discharge from the hospital, she was not in a position to discharge her regular work. She 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.

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On the other hand, the learned counsel for the Insurance Company has raised following counter contentions:

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a) Firstly, even though the claimant claims that he was earning Rs.12,000/- per month, she has not produced any documents to establish her income. In the absence of proof of income, the Tribunal has rightly assessed the income of the claimant notionally.

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b) Secondly, even though the doctor has assessed the disability at 10%, the injury suffered by the clamant is only in respect of facial injury and there is no fracture. Therefore, the Tribunal considering the injuries sustained

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by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 7%.

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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

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other incidental expenses are just and reasonable and it does not call for interference.

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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 –vVenkateshan.V and others (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the

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rate of interest awarded by the Tribunal at 7.5% p.a. on the compensation amount is on the higher side. 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 of the Tribunal.

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8 - NC: 2023:KHC:38093 MFA No. 1581 of 2018

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It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 28.01.2016 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.12,000/per month. She has not produced any documents to prove her income. Therefore, in the absence of proof of income, notional income has to be assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident 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 fracture of both nasal bones and bony nasal septum and undisplaced fracture of medial wall of right orbit. The doctor in his evidence has stated that the claimant has suffered disability of 10% to whole body. Therefore, taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate, I am of the opinion

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that the whole body disability is assessed at 10%. The claimant is aged about 48 years at the time of the accident and multiplier applicable to his age group is ‘13’. Thus, the claimant is entitled for compensation of Rs.1,48,200/- (Rs.9,5001213*10%) 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 2 months. Therefore, the claimant is entitled for compensation of Rs.19,000/- (Rs.9,500*2 months) under the head ‘loss of income during laid up period’.

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Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. She was inpatient in the hospital for a period of 2 days. She has suffered lot of pain during treatment and she has to suffer with the disability stated by the doctor throughout her life. Considering the same, I am inclined to enhance the

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10 - NC: 2023:KHC:38093 MFA No. 1581 of 2018

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compensation awarded by the Tribunal under the head of

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'loss of amenities' from Rs.20,000/- to Rs.40,000/- .

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Considering the nature of injuries, the compensation

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awarded by the Tribunal under other heads is just and reasonable.

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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	50,000	50,000
Medical expenses	10,215	10,215
Food, nourishment, conveyance and attendant charges	5,000	5,000
Loss of income during laid up period	14,000	19,000
Loss of amenities	20,000	40,000
Loss of future income	76,440	1,48,200

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11 -

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NC: 2023:KHC:38093 MFA No. 1581 of 2018

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Future medical expenses	20,000	20,000
Total	1,95,655	2,92,415

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In the result, the following order is passed:

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ORDER

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a) The appeal is allowed in part .

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b) The judgment of the Claims Tribunal is modified.

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c) The claimant is entitled to a total compensation of

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Rs.2,92,415/-.

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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.

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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 excluding

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12 -

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NC: 2023:KHC:38093 MFA No. 1581 of 2018

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interest for the compensation awarded under the

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head of 'future medical expenses'.

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Sd/JUDGE

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List No.: 1 Sl No.: 25

Sri. Mastanee S v. Sri. Santhosh Kumar Yadav

Case brief

What is this about?

What did the court decide?

Sri. Mastanee S v. Sri. Santhosh Kumar Yadav

Case brief

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What did the court decide?

What the court decided

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