Partly allowed

Sri. K v. Ramakrishna v Sri. Vinaya Kumar M B

Karnataka HC18 Sept 2024MFA/6069/2018

Case brief

AI extract

What is this about?

Claimant-driver injured in a lorry accident appealed for enhancement of compensation. The High Court raised notional income to Rs.9,000, assessed whole-body disability at 60%, added future prospects per Pranay Sethi, enhanced compensation to Rs.10,37,018 with 6% interest.

What did the court decide?

Compensation enhanced to Rs.10,37,018/- with 6% p.a. interest; insurer directed to deposit within six weeks; no interest on enhancement for delayed 217 days.

Sri. K v Ramakrishna Vs Sri. Vinaya Kumar M B — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:38416 MFA No. 6069 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 6069 OF 2018 (MV)

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BETWEEN:

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SRI. K V RAMAKRISHNA S/O LATE VELAYUDHAN AGED ABOUT 54 YEARS R/AT ADISHAKTHINAGAR ,RAMPURA POST CHIKMAGALUR TALUK– 577101

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…APPELLANT

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(BY SRI. RAVIKUMAR N R.,ADVOCATE)

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AND:

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SRI. VINAYA KUMAR M B S/O BELUREGOWDA AGED ABOUT 30 YEARS R/AT SIDDEGOWDA COMPOUND KANADAL ROAD, FORT CHIKKAMAGALURU – 577101.

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Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA

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PRAJWAL PAI S/O ARUN PAI AGED ABOUT 33 YEARS PAI ASSOCIATES R/A ANDECHETRA ROAD CHIKKAMAGALURU PIN – 577101.

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THE MANAGER

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NATIONAL INSURANCE CO LTD BRANCH OFFICE YASHORAM CHAMBERS RATHNAGIRI ROAD CHIKKAMAGALURU - 577101

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…RESPONDENTS

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(BY SRI.E.I. SANMATHI., ADVOCATE FOR R3: NOTICE TO R1 & R2 ARE DISPENSED WITH V/O DATED: 26.06.2019)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 13/09/2017, PASSED IN MVC NO.628/2014, ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & CHIEF JUDICIAL MAGISTRATE, & MEMBER, ADDITIONAL MACT, CHIKKAMAGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

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ORAL JUDGMENT

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This appeal under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant being aggrieved by the judgment dated 13.09.2017 passed by the Principal Senior Civil Judge and CJM and Addl. MACT, Chikkamagalur (hereinafter referred to as ‘the Tribunal’) in MVC No.628/2014.

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Facts giving rise to the filing of the appeal briefly stated are that on 28.05.2014 at about 9.50 a.m., when the claimant was driving the school bus bearing

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registration No.KA-18/6513 to drop the school staff, when he came near by-pass road, Hiremagaluru, at that time, a lorry bearing registration No.KA-18/B-4878 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 Nos.1 to 3 appeared through counsel and filed separate written statements denying the averments made in the claim 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, in order to prove the case, examined himself as PW-1, and Dr.Ullas Shetty was examined as CW-1, and got exhibited documents namely Ex.P1 to Ex.P30. On behalf of the respondents, one witness was examined as RW-1 and got exhibited documents namely Ex.R1 to Ex.R4. 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.7,01,000/- along with interest at the rate of 9% p.a. 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 raised the following contentions:

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(i) Firstly, at the time of the accident the claimant was working as driver in a school bus. Due to the accident, he lost eyesight. He has examined the doctor as CW1, who in his deposition has stated that the claimant has suffered 40% disability in respect of vision and 17% in respect of left upper limb. Due to the disability he was unable to do his driving work and he surrendered his driving licence. To that effect he has also produced a letter as per Ex.P29. The Tribunal instead of assessing the functional disability at 100% has erred in assessing only 40% disability, which is on the lower side.

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(ii) Secondly, due to the disability he has lost his job and unable do his day today work. In view of the judgment of the Apex Court in the cases of ERUDHAYA PRIYA vs. STATE EXPRESS TRANSPORT CORPORATION LTD. 2020’ SCC Online SC 601 and in the case of ‘PAPPU DEO YADAV vs. NARESH KUMAR AND OTHERS’ AIR 2020 SC 4424, the claimant is entitled for addition of future prospects.

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(iii) Thirdly, the Tribunal erred in assuming the monthly income of the claimant as Rs.8,000/-, despite claiming that he earned Rs.10,000/- per month.

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(iv) Fourthly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 42 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment and he has to suffer the disability throughout his life. 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 to allow the appeal.

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

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(i) Firstly, even though the doctor has deposed that he has suffered 40% in respect of vision, he has not examined the employer to show that instead of driving

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work, he has been employed for any other work other than the driving.

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(ii) Secondly, the injuries suffered by the claimant in respect of eye is only 40% and he can do other works. Considering his age. the Tribunal has rightly assessed the whole body disability as 40%.

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(iii) Thirdly, the assertion of claimant that he was earning Rs.10,000/- 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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(iv) Fourthly, 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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(v) Lastly, in light of the Division Bench decision of this Court in the case of Ms.Joyeeta Bose and others –

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v- Venkateshan.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. Hence, he 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 and the original records.

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It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 28.05.2014 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.10,000/- per month. But he has not produced any documents to substantiate his claim. But since he was a driver by occupation, considering his age and avocation, I

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am of the opinion that the notional income has to be assessed at Rs.9,000/- per month.

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At the time of the accident the claimant was working as a driver in a school bus. Due to the accident he suffered laceration of upper cyclic of right eye, multiple fracture over right cheek, lacerated wound over right neck, abrasion over right knee, fracture of distal end of radius, subrachacid hemorrhage, rupture of right eye clobe and other injuries. He has examined the doctor as CW1, who in his evidence has deposed that the claimant has suffered 40% disability in respect of vision and 17% in respect of left upper limb. Since he was a driver, in view of disability, he was unable to do his day today work. As per Ex.P29, he has surrendered the driving licence. But he has not examined his employer to show that he was not given any alternative work. Considering the disability and considering that the claimant was working as a driver, I am of the opinion that the whole body disability has to be assessed at 60%. Due to disability, he was unable to do

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his day today work. Hence, in view of the law laid down by the Apex Court in the cases of PAPPU (supra) and ERUDAYA PRIYA (supra), the claimant is entitled for addition of future prospects.

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In view of the law laid down by the Hon’ble Apex Court in the case of NATIONAL INSURANCE CO. LTD. -

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v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157],

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since the claimant was aged about 55 years, 10% of his income has to be added towards future prospects and the applicable multiplier is ‘11’. Hence, the monthly income of the claimant comes to Rs.9,900/- (Rs.9,000 + 10%). Thus, the claimant is entitled to Rs.7,84,080/(Rs.9,900x12x11x60%) on account of 'loss of future income due to disability’.

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Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable and the claimant is not entitled to compensation of Rs.25,000/- under the head ‘disability’.

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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	75,000	75,000
Medical expenses	40,000	40,000
Food, nourishment, conveyance and attendant charges	40,000	40,000
Loss of income during laid up period	48,000	48,000
Loss of amenities	25,000	25,000
Loss of future income	4,23,000	7,84,018
Future medical expenses	25,000	25,000
Disability	25,000	0
Total	7,01,000	10,37,018

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In the result, the following order is passed:

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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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(iii) The claimant is entitled to a total compensation of Rs.10,37,018/- as against Rs.7,01,000/- awarded by the Tribunal.

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(iv) 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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(v) 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 a copy of this judgment.

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(vi) In view of the order dated 08.12.2023 passed by this Court, the claimant is not entitled to interest on the

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