Partly allowed

Sri Siddaraju v. Sri Saif Khan

Karnataka HC28 Aug 2024MFA/1805/2020

Case brief

AI extract

What is this about?

Two claimants injured in a 2016 road accident when a tanker lorry dashed their motorcycle appealed against MACT awards. The High Court reassessed notional income at Rs.9,500 per month per KSLSA guidelines, recalculated loss of future income with correct multipliers, and modestly enhanced compensation under laid-up period and loss of amenities. Interest reduced to 6% following Joyeeta Bose; appeals

What did the court decide?

Enhanced compensation: Rs.7,30,960 (rider) and Rs.5,24,500 (pillion rider), with interest at 6% p.a., excluding delay periods of 278 and 369 days respectively; Insurance Company to deposit within six

Sri Siddaraju Vs Sri Saif Khan — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:34640 MFA No. 1805 of 2020 C/W MFA No. 1682 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF AUGUST, 2024

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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.1805 OF 2020 (MV)

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C/W

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MISCELLANEOUS FIRST APPEAL NO.1682 OF 2020 (MV)

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IN MFA No.1805/2020

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BETWEEN:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SRI SIDDARAJU S/O LATE CHANDRASHEKAR AGED ABOUT 27 YEARS R/O LAKSHMAN MALAPURA VILLAGE KASABA HOBLI SRIRANGAPATANA TALUK MANDYA DISTRICT-571 401

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(BY SRI MANJUNATH N D, ADVOCATE) AND:

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…APPELLANT

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SRI SAIF KHAN S/O JAMAL UDDIN KHAN MAJOR R/AT NO.13/14 GAYATHRIPURAM, UDAYAGIRI MYSURU-570019

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NC: 2024:KHC:34640 MFA No. 1805 of 2020 C/W MFA No. 1682 of 2020

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THE MANAGER UNITED INDIA INSURANCE CO. LTD. NEAR SATHYAGRUHA SOUDAH BANGALORE - MYSURU ROAD SHIVAPURA MADDUR MANDYA DISTRICT-571 401

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…RESPONDENTS

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(BY SRI B C SEETHAMA RAO, ADVOCATE FOR R2; NOTICE TO R1 IS D/W V/O DT.25.01.2023)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.17.09.2018 PASSED IN MVC NO.1063/2016 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND MEMBER, MACT, SRIRANGAPATNA AND ETC.

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IN MFA No.1682/2020

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BETWEEN:

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SRI CHIKKATHAYAMMA W/O KARIGOWDA AGED ABOUT 41 YEARS R/O A K NAGARAJU S/O LATE KEMPEGOWDA MALAPURA VILLAGE KASABA HOBLI SRIRANGAPATANA TALUK MANDYA DISTRICT-571 401

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…APPELLANT

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(BY SRI MANJUNATH N D, ADVOCATE) AND:

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SRI SAIF KHAN S/O JAMAL UDDIN KHAN

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MAJOR

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R/AT NO.13/14 GAYATHRIPURAM, UDAYAGIRI MYSURU-570019

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THE MANAGER UNITED INDIA INSURANCE CO. LTD. NEAR SATHYAGRUHA SOUDAH BANGALORE - MYSURU ROAD SHIVAPURA MADDUR MANDYA DISTRICT-571 401

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…RESPONDENTS

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(BY SRI B C SEETHAMA RAO, ADVOCATE FOR R2; NOTICE TO R1 IS D/W V/O DT.30.09.2022)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.17.09.2018 PASSED IN MVC NO.1064/2016 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND MEMBER, MACT, SRIRANGAPATNA AND ETC.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

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ORAL JUDGMENT

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In MFA No.1805/2020

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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 challenging by the judgment dated

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17.09.2018 passed by MACT, Srirangapatana in MVC No.1063/2016.

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Facts giving rise to the filing of the appeal briefly stated are that on 30.03.2016 at about 5.30 p.m., when the claimant was proceeding on motorcycle bearing registration No.KA55-U-0682 near Kannahalli halla, Malavalli-Mysuru road at that time, tanker lorry bearing registration No.KA55-4195 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 significant amount towards medical expenses, conveyance charges and other related costs. It was further pleaded that the accident occurred solely on account of rash and negligent driving of the offending vehicle by its driver.

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Upon service of notice, the respondent No.2 appeared through counsel and filed written statement denying the averments made in the claim petition. The respondent No.1, despite service of notice, did not appear before the Tribunal 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, in order to prove the case, examined himself as PW-1 and pillion rider was examined as PW-2, and got exhibited documents namely Ex.P1 to Ex.P27. Dr. Yathiraj T has been examined as CW1 on behalf of the claimant through Court Commissioner and got exhibited documents namely Ex.C1 to C3. On behalf of the respondents, none of the witnesses were examined and got exhibited documents 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

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which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.5,89,000/- along with interest at the rate of 9% p.a. and directed respondent Nos.1 and 2 to deposit the compensation amount along with interest. Being

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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, the claimant asserts that he was earning Rs.15,000/- per month. However, the Tribunal has erred in taking the income as merely as Rs.7,000/- per month. b) Secondly, the claimant has examined the doctor as CW-1. The Tribunal undervalued the claimant's wholebody disability at 23%, contradicting the evidence of the doctor that the claimant suffered 23.5% disability to whole body.

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c) Lastly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 13 days. Even after discharge from the

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hospital, he was not in a position to discharge his regular work. He 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. With the above contentions, the learned counsel sought to allow the appeal.

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

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a) Firstly, the assertion of claimant that he was earning Rs.15,000/- per month, remains unsubstantiated due to lack of documentary evidence. In the absence of proof of income, the Tribunal has assessed the income of the claimant notionally.

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b) Secondly, the Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 23%.

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

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d) Lastly, in light 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 rate of interest awarded by the Tribunal at 9.% p.a. on the compensation amount appears excessive. With the above contentions, the learned counsel sought to dismiss 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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It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 30.03.2016

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due to rash and negligent driving of the offending vehicle by its driver. Due to the accident, the claimant has suffered the following injuries:

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Open comminuted fracture of shaft of radius and ulna of right fore-arm;

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Comminuted fracture of head of radius right elbow; and

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Open injury to right knee with chip fracture at patella.

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The claimant claims that he was earning Rs.15,000/per month. But he has not produced any documents to substantiate his claim. Therefore, in the absence of proof of income, notional income has to be assessed. According to the guidelines issued by the Karnataka State Legal Services Authority, for accidents occurred in the year 2016, notional income shall be taken at Rs.9,500/- p.m.

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As per wound certificate, the claimant has sustained open comminuted fracture of shaft of radius and ulna of right fore-arm, comminuted fracture of head of radius

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right elbow and open injury to right knee with chip fracture at patella. The doctor in his evidence has stated that the claimant has suffered disability of 23.5% to whole body. Therefore, taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate, the Tribunal has rightly taken the whole body disability at 23%. The claimant is aged about 24 years at the time of the accident and multiplier applicable to his age group is ‘18’. Thus, the claimant is entitled for compensation of Rs.4,71,960/- (Rs.9,5001218*23%) on account of 'loss of future income'.

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The nature of injuries indicates that the claimant must have been under rest and treatment for a period of 4 months. Consequently, the claimant is entitled for compensation of Rs.38,000/- (Rs.9,500*4 months) under the head ‘loss of income during laid up period’.

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Due to the accident, the claimant has suffered the injuries as mentioned above and he was hospitalized as an inpatient for a period of 13 days in the hospital. He has

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suffered lot of pain during the treatment and he has to suffer the disability through out his life. Considering the prolonged pain during treatment as well as the permanent disability certified by the doctor, I am inclined to enhance the compensation awarded by the Tribunal under the head

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of 'loss of amenities' from Rs.30,000/- 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 compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	90,000.00	90,000.00
Medical expenses	53,000.00	53,000.00
Food, nourishment, conveyance and attendant charges	13,000.00	13,000.00
Loss of income during laid up period	30,000.00	38,000.00

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Loss of amenities	30,000.00	40,000.00
Loss of future income	3,48,000.00	4,71,960.00
Future medical expenses	25,000.00	25,000.00
Total	5,89,000.00	7,30,960.00

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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. c) The claimant is entitled to a total compensation of Rs.7,30,960/-.

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d) Following the 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.

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f) In view of the order dated 25.01.2023 passed by this Court, the claimant is not entitled to interest on the enhanced compensation for the delayed period of 278 days in filing the appeal.

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In MFA No.1682/2020

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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 challenging by the judgment dated 17.09.2018 passed by MACT, Srirangapatana in MVC No.1064/2016.

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Facts giving rise to the filing of the appeal briefly stated are that on 30.03.2016 at about 5.30 p.m., when the claimant was proceeding on motorcycle bearing registration No.KA55-U-0682 as a pillion rider near Kannahalli halla, Malavalli-Mysuru road at that time, tanker lorry bearing registration No.KA55-4195 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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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 significant amount towards medical expenses, conveyance charges and other related costs. It was further pleaded that the accident occurred solely on account of rash and negligent driving of the offending vehicle by its driver.

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Upon service of notice, the respondent No.2 appeared through counsel and filed written statement denying the averments made in the claim petition. The respondent No.1, despite service of notice, did not appear before the Tribunal 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, in order to prove the case, examined herself as PW-1 and rider was examined as PW-

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2, and got exhibited documents namely Ex.P1 to Ex.P27. Dr. Yathiraj T has been examined as CW1 on behalf of the claimant through Court Commissioner and got exhibited documents namely Ex.C1 to C3. On behalf of the respondents, none of the witnesses were examined and got exhibited documents 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.4,39,000/- along with interest at the rate of 9% p.a. and directed respondent Nos.1 and 2 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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d) Firstly, the claimant asserts that he was earning Rs.15,000/- per month. However, the Tribunal has erred in taking the income as merely as Rs.7,000/- per month.

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e) Secondly, the claimant has examined the doctor as CW-1 and the evidence of the doctor that the claimant suffered 15% disability to whole body. Considering the evidence of the doctor and the injury suffered by the claimant, the Tribunal has rightly assessed whole body disability of 15%.

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f) Lastly, due to the accident, the claimant has sustained grievous injuries. She was treated as inpatient for a period of 12 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. With the above contentions, the learned counsel sought to allow the appeal.

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

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a) Firstly, the assertion of claimant that she was earning Rs.15,000/- per month, remains unsubstantiated due to lack of documentary evidence. In the absence of proof of income, the Tribunal has assessed the income of the claimant notionally.

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b) Secondly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the compensation awarded by the Tribunal under

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the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are just and reasonable and it does not warrant interference.

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c) Lastly, in light 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 rate of interest awarded by the Tribunal at 9.% p.a. on the compensation amount appears excessive. With the above

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contentions, the learned counsel sought to dismiss 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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It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 30.03.2016 due to rash and negligent driving of the offending vehicle by its driver. Due to the accident, the claimant has suffered the following injuries:

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Open fracture of ulna and radius shaft with comminuted and contamination right side;

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Open injury right elbow with dislocation of ulna humeral joint; and

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Comminuted iliac wing fracture wing fracture of left side.

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The claimant claims that she was earning Rs.15,000/- per month. But she has not produced any documents to substantiate her claim. Therefore, in the

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absence of proof of income, notional income has to be assessed. According to the guidelines issued by the Karnataka State Legal Services Authority, for accidents occurred in the year 2016, notional income shall be taken at Rs.9,500/- p.m.

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As per wound certificate, the claimant has sustained injuries as mentioned above. The doctor in his evidence has stated that the claimant has suffered disability of 15% to whole body. Therefore, taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate, the Tribunal has rightly taken the whole body disability at 15%. The claimant is aged about 38 years at the time of the accident and multiplier applicable to her age group is ‘15’. Thus, the claimant is entitled for compensation of Rs.2,56,500/- (Rs.9,5001215*15%) on account of 'loss of future income'.

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The nature of injuries indicates that the claimant

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must have been under rest and treatment for a period of 6 months. Consequently, the claimant is entitled for

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compensation of Rs.38,000/- (Rs.9,500*4 months) under

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the head ‘loss of income during laid up period’.

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Due to the accident, the claimant has suffered the injuries as mentioned above and she was hospitalized as an inpatient for a period of 12 days in the hospital. She has suffered lot of pain during the treatment and she has to suffer the disability through out her life. Considering the prolonged pain during treatment as well as the permanent disability certified by the doctor, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'loss of amenities' from Rs.30,000/- to

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Rs.40,000/-.

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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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Thus, the claimant is entitled to the following compensation:

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As awarded	As awarded
by the

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Compensation under different Heads	Tribunal (Rs.)	by this Court (Rs.)
Pain and sufferings	85,000.00	85,000.00
Medical expenses	68,000.00	68,000.00
Food, nourishment, conveyance and attendant charges	12,000.00	12,000.00
Loss of income during laid up period	30,000.00	38,000.00
Loss of amenities	30,000.00	40,000.00
Loss of future income	1,89,000.00	2,56,500.00
Future medical expenses	25,000.00	25,000.00
Total	4,39,000.00	5,24,500.00

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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.5,24,500/-.

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d) Following the judgment of the Division Bench of this

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Court in the case of ‘MS.JOYEETA BOSE’ (supra) , the

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enhanced compensation shall carry interest at 6%

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per annum.

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e) The Insurance Company is directed to deposit the compensation amount along with interest

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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

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the date of receipt of copy of this judgment.

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f) In view of the order dated 28.08.2024 passed by this Court, the claimant is not entitled to interest on the enhanced compensation for the delayed period of 369 days in filing the appeal.

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Sd/(H.T. NARENDRA PRASAD) JUDGE

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Sri Siddaraju v. Sri Saif Khan

Case brief

What is this about?

What did the court decide?

Sri Siddaraju v. Sri Saif Khan

Case brief

What is this about?

What did the court decide?

What the court decided

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