Partly allowed

Narasimhanayaka v. J K Hayath Khan

Karnataka HC23 Nov 2023MFA/732/2022

Case brief

AI extract

What is this about?

This appeal against a Motor Accident Claims Tribunal order sought higher compensation for permanent disability and other heads. The single-judge bench enhanced compensation under various heads, including loss of future income, pain and sufferings, and loss of amenities, directing the insurer to pay Rs. 5,52,040.

What did the court decide?

The judgment is modified; total compensation enhanced to Rs. 5,52,040. Directs Insurance Company to deposit amount with interest within six weeks.

Narasimhanayaka Vs J K Hayath Khan — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC:42203 MFA No. 732 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^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. 732 OF 2022 (MV)

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BETWEEN:

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NARASIMHANAYAKA S/O KALANAYAKA AGED ABOUT 40 YEARS R/AT MOTTEDODDI, KAILANCHA HOBLI RAMANAGARA TALUK-562159

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…APPELLANT

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(BY SRI. SHANTHARAJ K., ADVOCATE)

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AND:

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J K HAYATH KHAN

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S/O JALEEL KHAN AGED MAJOR

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R/AT ADIGERA KALLAHALLI VILLAGE SARJAPURA HOBLI, ANEKAL TALUK-562117.

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Digitally signed by DHANALAKSHMI MURTHY Location: High Court of Karnataka

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SRI RAM GENERAL INS. CO. LTD BY ITS MANAGER

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NO.4/5, 3RD FLOOR, S V ARCADE BILEKAHALLI MAIN ROAD,OPP B G ROAD 2ND MAIN, BENGALURU-560079.

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…RESPONDENTS (BY SRI.B.C. SHIVANNE GOWDA., ADVOCATE FOR R2: NOTICE TO R1 IS DISEPENSED WITH V/O DATED: 23.11.2023)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 16.11.2021 PASSED IN MVC NO.385/2016 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER,

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NC: 2023:KHC:42203 MFA No. 732 of 2022

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ADDITIONAL MACT, RAMANGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION. 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 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 16.11.2021 passed by the Additional Motor Accident Claims Tribunal and III Addl. District and Sessions Judge, Ramanagara (for short, ‘the Tribunal’) in MVC No.385/2016.

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Facts giving rise to the filing of the appeal briefly stated are that on 18.10.2015 at about 7.15 a.m., the claimant was traveling in a bus bearing registration No.KA51/A-6409 to Achalu village. At Achalu village, when he tried to get down from the bus, at that time, the driver of the bus moved the same in a rash and negligent manner. As a result, the claimant fell down from the bus and sustained grievous injuries and was hospitalized.

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3 - NC: 2023:KHC:42203 MFA No. 732 of 2022

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The claimant filed a petition under Section 166 of

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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 accident was due to the negligence of 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 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. The respondent No.1 did not

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4 - NC: 2023:KHC:42203 MFA No. 732 of 2022

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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 PW1, another witness as PW2 and Dr.Venkatram Kumar as PW3

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and got exhibited documents namely Ex.P1 to Ex.P50. On behalf of the respondents, one witness was examined as RW1 and got exhibited documents namely Ex.R1 to Ex.R6. 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.3,48,360/- along with interest at the rate of 6% p.a. and since the insured has violated the policy conditions, directed the Insurance Company to deposit the compensation amount along with interest with liberty to recover the same from the owner of the

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5 - NC: 2023:KHC:42203 MFA No. 732 of 2022

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offending vehicle. Being aggrieved, this appeal has been filed.

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

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(i) Firstly, even though the claimant claims that he was earning Rs.15,000/- per month, but the Tribunal has taken the notional income as only Rs.6,000/- per month.

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(ii) Secondly, PW-2, the doctor has stated in his evidence that the claimant has suffered disability of 18% to whole body. He further deposed that there is shortening of left leg of the claimant and also in his cross-examination he has admitted that the claimant has suffered disability to the tune of 50%. Therefore, the Tribunal has erred in taking the whole body disability at only 18%.

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(iii) Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 7 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.

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6 - NC: 2023:KHC:42203 MFA No. 732 of 2022

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Considering the same, the compensation granted by the Tribunal under the heads of 'pain and sufferings' and other incidental expenses are on the lower side and the Tribunal has not awarded any compensation under the head 'loss of amenities'. Hence, he sought for allowing the appeal.

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On the other hand, the learned counsel for the

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Insurance Company has raised the following contentions:

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(i) Firstly, even though the claimant claims that he was earning Rs.15,000/- 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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(ii) Secondly, PW-2, the doctor has stated in his evidence that the claimant has suffered disability of 18% to whole body and the 50% disability assessed by him is in respect of particular limb. Therefore, the whole body disability assessed by the Tribunal is just and reasonable.

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7 - NC: 2023:KHC:42203 MFA No. 732 of 2022

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(iii) Thirdly, the injuries suffered by the claimant are minor in nature. He was inpatient for only 7 days. Considering the evidence of the doctor and the injuries suffered by the claimant, the overall compensation awarded by the Tribunal is just and reasonable. 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 and the original records.

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It is not in dispute that the claimant suffered

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injuries in the accident occurred on 18.10.2015 due to rash and negligent driving of the bus bearing registration No.KA-51/A-6409 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 2015, the notional income has to be taken at Rs.9,000/- p.m. Due to the accident the claimant has suffered fracture of left tibia and

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other injuries. PW-2, the doctor has stated in his evidence that the claimant has suffered disability of 18% to whole body. In his cross-examination, he has deposed that there is shortening of left lower limb, disability to the particular limb is three times higher than the permanent disability and he has also assessed the permanent disability suffered

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by the claimant as 50%. Considering the permanent disability suffered by the claimant and considering the evidence of the doctor, the Tribunal has rightly assessed the whole body disability at 18%. The claimant was aged about 34 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.3,11,040/(Rs.9,0001216*18%) on account of 'loss of future income'. 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 am inclined to enhance the compensation awarded by the Tribunal under the head of 'pain and sufferings' from

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9 - NC: 2023:KHC:42203 MFA No. 732 of 2022

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Rs.40,000/- to Rs.50,000/- and for ‘medical expenses, conveyance, food and attendant charges’ from Rs.65,000/to Rs.77,000/- and claimant is also entitled to 'loss of amenities' at Rs.40,000/-. In view of rise in the monthly income from Rs.6,000/- to Rs.9,000/- per month, the claimant is entitled to compensation of Rs.54,000/(Rs.9,000*6) under the head 'loss of income during laidup period' instead of Rs.36,000/- awarded by the Tribunal. In respect of 'future medical expenses' the doctor deposed that the claimant has undergone surgery, there is implant and he has not assessed the cost for removal of implants and future surgery. Considering the evidence of the doctor and the injuries suffered by the claimant, I am of the opinion that the claimant is entitled to Rs.20,000/towards 'future medical expenses'. 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 compensation:

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10 - NC: 2023:KHC:42203 MFA No. 732 of 2022

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	40,000	50,000
Medical expenses, conveyance, food, nourishment and attendant charges	65,000	77,000
Loss of income during laid up period	36,000	54,000
Loss of amenities	0	40,000
Loss of future income	207,360	311,040
Future medical expenses	0	20,000
Total	348,360	552,040

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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.

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The claimant is entitled to a total compensation of Rs.5,52,040/- in place of Rs.3,48,360/- awarded by the Tribunal.

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NC: 2023:KHC:42203 MFA No. 732 of 2022

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11 -

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(iii) 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 date of realization, within a period of six weeks from the date of receipt of copy of this judgment, with liberty to recover the same from the owner of the offending vehicle.

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Sd/JUDGE

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CM List No.: 3 Sl No.: 11

Narasimhanayaka v. J K Hayath Khan

Case brief

What is this about?

What did the court decide?

Narasimhanayaka v. J K Hayath Khan

Case brief

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