Partly allowed

Ameer Jan v. Smt. Saraswathi

Karnataka HC15 Nov 2023MFA/992/2023

Case brief

AI extract

What is this about?

Regarding a Motor Accident appeal challenging compensation awarded by the Tribunal (10.52 lakhs), the High Court recalculated compensation based on notional income and medical evidence, enhancing the total award to 14.63 lakhs by adjusting loss of future income and laid-up period.

What did the court decide?

The appeal is allowed in part. Total compensation enhanced to Rs.14,63,000/- in place of Rs.10,52,000/-, along with interest at 6% p.a.

Ameer Jan Vs Smt. Saraswathi — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC:40605 MFA No. 992 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH 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. 992 OF 2023 (MV)

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BETWEEN:

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AMEER JAN S/O LATE SABJAN SAB NOW AGED 44 YEARS R/AT NO 20, JANATHA COLONY KALLAMBELLA, KALLAMBELLA HOBLI SIRA TALUK, TUMKURU DISTRICT. …APPELLANT

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(BY SRI. RANGEGOWDA N R., ADVOCATE)

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AND:

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Digitally signed by DHANALAKSHMI MURTHY Location: High Court of Karnataka

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SMT. SARASWATHI W/O K MURTHY AGED MAJOR R/AT MASIDI ROAD, JENUKAL NAGARA ARASIKERE TOWN, HASSAN DISTRICT.

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THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LIMITED 2ND FLOOR, SHUBHARAM COMPLEX M G ROAD, BANGALORE 560001. …RESPONDENTS

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(BY SRI.MALLIKARJUNA REDDY N.A., ADVOCATE FOR SRI. PRADEEP B., ADVOCATE FOR R2: NOTICE TO R1 IS DISPENSED WITH V/O DATED:9.08.2023)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:25.11.2022 PASSED IN MVC NO.4953/2021 ON THE FILE OF THE MEMBER, MACT, XXI ADDITIONAL JUDGE OF SMALL CAUSES COURT AND ACMM, BENGALURU, (SCCH-23), PARTLY ALLOWING THE

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NC: 2023:KHC:40605 MFA No. 992 of 2023

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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 25.11.2022 passed by the Motor Accident Claims Tribunal, XXI Additional Judge of Small Causes Court and ACMM, Bengaluru (SCCH-23) (for short, ‘the Tribunal’) in MVC No.4953/2021.

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Facts giving rise to the filing of the appeal briefly stated are that on 21.09.2021 at about 4.30 p.m., the claimant was proceeding in an autorickshaw bearing registration No.KA-52/9832 on Kunigal-Nelamangala (NH75) road. When they reached near Shanthinagara village, Kasaba Hobli, Nelamangala Taluk, at that time, a car bearing registration No.KA-12/N-8628 being driven by its driver at a high speed and in a rash and negligent manner,

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3 - NC: 2023:KHC:40605 MFA No. 992 of 2023

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dashed to the autorickshaw. 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 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 rash and negligent driving of the driver of the autorickshaw. 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

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4 - NC: 2023:KHC:40605 MFA No. 992 of 2023

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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 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, Dr.Nagaraj B.N. as PW3 and another witness as PW-2 and got exhibited documents namely Ex.P1 to Ex.P20. 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 claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.10,52,000/- along with interest at the rate of 6% p.a.

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NC: 2023:KHC:40605 MFA No. 992 of 2023

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and directed the Insurance Company to deposit the compensation amount along with interest. 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.25,000/- per month, but the Tribunal has taken the notional income as only Rs.12,000/- per month.

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(ii) Secondly, PW-3, the doctor has stated in his evidence that the claimant has suffered permanent physical disability of 35% to whole body. But 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 10 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 Tribunal under the heads of 'loss of amenities', 'pain and

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NC: 2023:KHC:40605 MFA No. 992 of 2023

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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 the following contentions:

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(i) 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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(ii) Secondly, PW-3, the doctor has assessed the whole body disability at 35%, he has not assessed the limb disability or functional disability. Considering the evidence of the doctor and the injuries suffered by the claimant, the Tribunal has rightly assessed the whole body disability at 18%.

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(iii) Thirdly, considering the injuries suffered by the claimant and considering the age and avocation, the compensation awarded by the Tribunal is just and reasonable. Hence, he sought for dismissal of the appeal.

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NC: 2023:KHC:40605 MFA No. 992 of 2023

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Heard the learned counsel for the parties. Perused the judgment and award.

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It is not in dispute that the claimant suffered injuries in the accident occurred on 21.09.2021 due to rash and negligent driving of the car bearing registration No.KA-12/N-8628 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 2021, the notional income has to be taken at Rs.15,000/- p.m. Due to the accident the claimant has suffered C3-C4, C4-C5, C5-C6, C-6, C-7 diffuse bulge with compression of the C3 nerve root moderated quadriparesis with limb girdle muscle weakness and right grade 3 AC joint dislocation. The claimant was inpatient for 10 days. PW-3, the doctor has stated in his evidence that the claimant has suffered permanent physical disability of 35% to whole body. Therefore, taking into consideration the deposition of the

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doctor - PW-3 and injuries suffered by the claimant, the whole body disability is taken at 30%. The claimant was aged about 42 years at the time of the accident and multiplier applicable to his age group is ‘14’. Thus, the claimant is entitled for compensation of Rs.7,56,000/(Rs.15,0001214*30%) on account of 'loss of future income'. In view of rise in the monthly income of the claimant, the compensation awarded by the Tribunal for 'loss of income during laid-up period' has to be enhanced from Rs.72,000/- to Rs.90,000/-. Due to the accident, the claimant has suffered grievous injuries, he has suffered lot

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of pain during treatment and he has to suffer with the disability and unhappiness throughout his life. Considering the evidence of the doctor and the injuries suffered by the claimant, the compensation awarded by the Tribunal on the other heads is just and reasonable.

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Thus, the claimant is entitled to the following compensation:

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	As awarded	As awarded
Compensation under	by the	by this

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NC: 2023:KHC:40605 MFA No. 992 of 2023

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different Heads	Tribunal	Court
	(Rs.)	(Rs.)
Pain and sufferings	70,000	70,000
Medical expenses	4,17,000	4,17,000
Food, nourishment, conveyance and attendant charges	20,000	20,000
Loss of income during laid up period	72,000	90,000
Loss of amenities	50,000	50,000
Loss of future income	3,63,000	7,56,000
Future medical expenses	60,000	60,000
Total	10,52,000	14,63,000

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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.14,63,000/- in place of Rs.10,52,000/- awarded by the Tribunal.

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(iii) The Insurance Company is directed to deposit

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the compensation amount along with interest @ 6% p.a.

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NC: 2023:KHC:40605 MFA No. 992 of 2023

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10 -

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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 interest for the compensation awarded under the head of 'future medical expenses'.

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Sd/JUDGE

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List No.: 2 Sl No.: 63

Ameer Jan v. Smt. Saraswathi

Case brief

What is this about?

What did the court decide?

Ameer Jan v. Smt. Saraswathi

Case brief

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