Partly allowed

Deju Shetty v. Veeresh R K

Karnataka HC3 Nov 2023MFA/5276/2020

Case brief

AI extract

What is this about?

In a Motor Vehicles First Appeal under Section 173(1) of the Motor Vehicles Act, 1988, the High Court modified the Claims Tribunal's award by enhancing compensation from Rs.4,05,250 to Rs.5,19,150 based on notional income and permanent disability, while reducing interest to 6% p.a.

What did the court decide?

Compensation enhanced from Rs.4,05,250 to Rs.5,19,150 with interest reduced to 6% p.a.

Deju Shetty Vs Veeresh R K — Insurance | Karnataka HC (2023)

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1 - NC: 2023:KHC:39183 MFA No. 5276 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 5276 OF 2020 (MV)

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BETWEEN:

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DEJU SHETTY S/O LATE LOKAYYA SHETTY AGED ABOUT 67 YEARS R/A JALAJA NIVASA KUPPABETU, GUNDYADKA KUKKUNDOOR POST AND VILLAGE KARKALA TALUK-574104 UDUPI DISTRICT. …APPELLANT

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(BY SRI. PAVANA CHANDRA SHETTY H.,ADVOCATE)

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AND:

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Digitally signed by DHANALAKSHMI MURTHY Location: High Court of Karnataka

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VEERESH R K S/O SRI RUDRAPPA AGED ABOUT 34 YEARS R/A BLOCK B, ROOM NO.204 2ND FLOOR, QUARTERS NITTE POST AND VILLAGE KARKALA TALUK-574104 UDUPI DISTRICT.

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THE BRANCH MANAGER UNITED INDIA INSURANCE CO LTD KARKALA BRANCH, PB NO.29 2ND FLOOR, SUSHILA SANJIV ENCLAVE NEAR KARNATAKA BANK

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NC: 2023:KHC:39183 MFA No. 5276 of 2020

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MARKET ROAD KARKALA-574104 …RESPONDENTS

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(BY SRI.S KRISHNA KISHORE., ADVOCATE FOR R2: NOTICE TO R1 IS DISPENSED WITH V/O DATED: 12.09.2022)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.07.2019 PASSED IN MVC NO.862/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND AMACT, KARKALA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, 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 the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the claimant being aggrieved by the judgment dated 09.07.2019 passed by the Senior Civil Judge and AMACT, Karkala in MVC No.862/2018.

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Facts giving rise to the filing of the appeal

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briefly stated are that on 05.04.2018 at about 7.00 p.m., the claimant was proceeding on his two wheeler bearing

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3 - NC: 2023:KHC:39183 MFA No. 5276 of 2020

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registration No.KA-20/EC-3070 from Village Inn Bar and Restaurant towards his house. When he reached near the bypass road, at that time, one Maruthi car bearing registration No.KA-20/MB-3367 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle 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 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 Nos.1 and 2 appeared through counsel and filed written statements 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

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4 - NC: 2023:KHC:39183 MFA No. 5276 of 2020

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accident was due to the rash and negligent riding of the vehicle by the claimant himself. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, they sought for dismissal of the petition.

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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.Rizwan Ahmed as PW-2 and got exhibited documents namely Ex.P1 to Ex.P29 and C1 to C4. On behalf of the respondents, no witness was examined but got exhibited one document namely Ex.R1. 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.4,05,250/- along with interest at the rate of 8% p.a.

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and directed the Insurance Company to deposit the

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NC: 2023:KHC:39183 MFA No. 5276 of 2020

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compensation amount along with interest. Being not satisfied, this appeal has been filed.

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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 agricultural work and earning Rs.60,000/- per month, but the Tribunal has taken the notional income as only Rs.8,000/- per month.

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Secondly, PW-2, the doctor has stated in his evidence that the claimant has suffered permanent disability of 20.5%. But the Tribunal has erred in taking the whole body disability at only 5%.

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Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 30 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He 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

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6 - NC: 2023:KHC:39183 MFA No. 5276 of 2020

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Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other conventional heads 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 the following contentions:

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Firstly, even though the claimant claims that he was earning Rs.60,000/- 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, the claimant has suffered only fractures and the fractures are re-united. Considering the evidence of the doctor the Tribunal has rightly assessed the whole body disability as 5%.

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Thirdly, considering the injuries suffered by the claimant and considering the age and avocation, the compensation awarded by the Tribunal is just and reasonable.

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Fourthly, in view of the Division Bench decision of this Court in the case of MS.JOYEETA BOSE AND

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7 - NC: 2023:KHC:39183 MFA No. 5276 of 2020

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OTHERS vs. VENKATESHAN.V AND OTHERS (MFA 5896/2018 and connected matters disposed of on

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24.8.2020), the interest granted by the Tribunal at the rate of 8% p.a. is on the higher side and the same has to be reduced to 6% p.a. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties.

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Perused the judgment and award .

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It is not in dispute that the claimant suffered injuries in the accident occurred on 05.04.2018 due to rash and negligent driving of the car bearing registration No.KA-20/MB-3367 by its driver.

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The claimant has not produced any evidence with regard to 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 2018, the notional income has to be taken at Rs.12,500/- p.m. Due to the accident the claimant has suffered abrasion on the right

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8 - NC: 2023:KHC:39183 MFA No. 5276 of 2020

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side of forehead, abrasion on inner aspect of right upper limb, swelling and deformity of right wrist with underlying fracture of lower end of radius, contusion on the right knee with underlying fracture of condyle of tibia, abrasion on the inner aspect of upper one third of right leg and laceration muscle deep on the back of left ankle. The claimant was inpatient for 30 days. PW-2, the doctor has stated in his evidence that the claimant has suffered 20.50% permanent disability. Considering the evidence of the doctor and the age and avocation of the claimant, I am of the opinion that the whole body disability can be assessed at 10%. The claimant was aged about 65 years at the time of the accident and multiplier applicable to his age group is ‘7’. Thus, the claimant is entitled for compensation of Rs.1,05,000/- (Rs.12,500127*10%) on account of 'loss of future income'.

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Due to the accident, the claimant has suffered grievous injuries, 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

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am inclined to enhance the compensation awarded by the Tribunal under the head of 'loss of amenities' from Rs.20,000/- to Rs.40,000/- and 'loss of income during laid-up period' for a period of five months, i.e., Rs.62,500/- (Rs.12,500*5). The compensation 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	60,000	60,000
Medical expenses	2,01,650	2,01,650
Food, nourishment, conveyance and attendant charges	50,000	50,000
Loss of income during laid up period	40,000	62,500
Loss of amenities	20,000	40,000
Loss of future income	33,600	1,05,000
Total	4,05,250	5,19,150

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10 - NC: 2023:KHC:39183 MFA No. 5276 of 2020

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In view of the above, I pass the following order:

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(i) The appeal is allowed in part.

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(ii) The judgment of the claims Tribunal is modified. The claimant is entitled to a compensation of Rs.5,19,150/- in place of Rs.4,05,250/- awarded by the Tribunal.

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(iii) 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

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of copy of this judgment.

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(iv) The enhanced compensation carries interest @ 6% p.a.

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Sd/JUDGE

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List No.: 2 Sl No.: 44

Deju Shetty v. Veeresh R K

Case brief

What is this about?

What did the court decide?

Deju Shetty v. Veeresh R K

Case brief

What is this about?

What did the court decide?

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