Partly allowed

Venkatesh v. Kantha K. M.

Karnataka HC20 Sept 2024MFA/6416/2018

Case brief

AI extract

What is this about?

In a miscellaneous first appeal challenging a Motor Accidents Claims Tribunal award, the High Court enhanced compensation for loss of future income and pain and sufferings. The Court fixed interest at 6% p.a. and directed the insurer to pay despite the vehicle's invalid permit.

What did the court decide?

Compensation enhanced from Rs. 296,057 to Rs. 455,457 with interest at 6% p.a.; the Insurance Company directed to deposit the amount within six weeks.

Venkatesh Vs Kantha K. M. — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:38830 MFA No. 6416 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^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. 6416 OF 2018 (MV)

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BETWEEN:

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VENKATESH S/O RANGASWAMAIAH AGED ABOUT 46 YEARS PAINTER R/AT NO.53, PUNARVASATHI COLONY MANCHANABELE COLONY, KADABAGERE BANGALORE-562130

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…APPELLANT

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(BY SRI. R SHASHIDHARA .,ADVOCATE)

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AND:

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KANTHA K. M. S/O MALIGEGOWDA MAJOR R/AT NO.33, KODAVATHI KUNIGAL TALUK, TUMKUR DISTIRCT-572130.

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Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA

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THE LEGAL MANAGER THE SHRIRAM GENERAL INSURANCE CO LTD., NO.5/4M, 3RD FLOOR, S.V.ARCADE BELEKAHALLI MAIN ROAD LIMB POST, BANGALORE-560076

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…RESPONDENTS

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(BY SRI.O.MAHESH, ADVOCATE FOR R2: NOTICE TO R1 SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT

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AGAINST THE JUDGMENT AND AWARD DATED:07.02.2018 PASSED IN MVC NO.1085/2017 ON THE FILE OF THE 9TH

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ADDITIONAL SMALL CAUSES JUDGE & 34TH ACMM, COURT OF

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NC: 2024:KHC:38830 MFA No. 6416 of 2018

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SMALL CAUSES, MEMBER, MACT-7, BENGALURU (SCCH-7), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR 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

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Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant challenging by the judgment dated 07.02.2018 passed by MACT, Bangalore in MVC No.1085/2017.

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Facts giving rise to the filing of the appeal briefly stated are that on 26.09.2014 when the claimant was proceeding on motorcycle bearing registration No.KA-02HA-2878 along with his friend near Petrol Bunk, Channenahalli, at that time, lorry bearing registration No.KA-02-AB-2845 being driven by its driver at a high

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3 - NC: 2024:KHC:38830 MFA No. 6416 of 2018

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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

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4 - NC: 2024:KHC:38830 MFA No. 6416 of 2018

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the evidence. The Tribunal, by impugned judgment and award has partly allowed the claim petition and held that the claimant is entitled to a compensation of Rs.296,057/along with interest at the rate of 9% p.a. and directed the owner of the offending vehicle 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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a) Firstly, the claimant asserts that he was earning Rs.15,000/- per month by working as a Painter. However, the Tribunal has erred in taking the income as merely as Rs.9,000/- per month.

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b) Secondly, the claimant has examined the doctor as PW-2. The doctor has stated that the claimant has suffered 35% disability to particular limb and 10% to whole body. The said disability has affected his day to day activities and avocation. There is loss of income. But the

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5 - NC: 2024:KHC:38830 MFA No. 6416 of 2018

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Tribunal has failed to grant any compensation towards 'loss of future income'.

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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 5 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. Considering the same, the overall compensation awarded by the Tribunal is on the lower side.

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d) Liability: After considering the materials available on record, the Tribunal has rightly held that as on the date of accident, the offending vehicle was not having valid permit. Hence, the Tribunal has rightly exonerated the Insurance Company from liability. But, however, since the claimant is a third party, the Insurance Company has to pay compensation to the claimant and later recover the same from the owner of the offending vehicle. In support of his contention, he has relied upon the decision the Apex Court in the case of AMRIT PAUL SINGH AND ANOTHER V.

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6 - NC: 2024:KHC:38830 MFA No. 6416 of 2018

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TATA AIG GENERAL INSURANCE COMPANY LIMITED AND OTHERS [(2018) 7 SCC 558].

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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 disability stated by the doctor does not affect his earning capacity and therefore, the Tribunal has rightly not granted compensation towards 'loss of future income'.

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c) Thirdly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the overall compensation awarded by the

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7 - NC: 2024:KHC:38830 MFA No. 6416 of 2018

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Tribunal is 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.

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e) Liability: Admittedly, as on the date of accident, the offending vehicle was not having valid permit. Since the insured has violated the policy conditions, the Insurance Company is not liable to pay compensation, Hence, the Tribunal has rightly exonerated the Insurance Company from liability.

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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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8 - NC: 2024:KHC:38830 MFA No. 6416 of 2018

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It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 26.09.2014 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.15,000/per month. But he has not produced any documents to substantiate his claim. The Tribunal considering the age and avocation of the claimant has rightly assessed the notional income at Rs.9,000/- p.m.

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As per wound certificate, the claimant has sustained fracture of left clavicle, comminuted fracture to anterial wall of maxillary sinus. The claimant has examined the doctor as PW-2. The doctor has stated that the claimant has suffered 35% disability to particular limb and 10% to whole body. The said disability has affected day to day activities and avocation of the claimant and there is loss of income. Hence, he is entitled for compensation towards 'loss of future income'. Taking into consideration the

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deposition of the doctor and injuries mentioned in the wound certificate, the whole body disability can be taken at 10%. The claimant is aged about 46 years at the time of the accident and multiplier applicable to his age group is ‘13’. Thus, the claimant is entitled for compensation of Rs.140,400/- (Rs.90001213*10%) 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 3 months. Consequently, the claimant is entitled for compensation of Rs.27,000/- (Rs.9000*3 months) under the head ‘loss of income during laid up period’.

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The claimant was hospitalized as an inpatient for more than 5 days in the hospital and subsequently received further treatment. Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. Considering the prolonged pain during treatment as well as the permanent disability certified by the doctor,

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10 - NC: 2024:KHC:38830 MFA No. 6416 of 2018

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I am inclined to enhance the compensation awarded by

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the Tribunal under the head of 'pain and sufferings' from

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Rs.40,000/- to Rs.50,000/- .

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14. 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	40,000	50,000
Medical expenses	158,057	158,057
Food, nourishment, conveyance and attendant charges	10,000	10,000
Loss of income during laid up period	18,000	27,000
Loss of amenities	50,000	50,000
Loss of future income	0	140,400

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11 -

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NC: 2024:KHC:38830 MFA No. 6416 of 2018

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Future medical expenses	20,000	20,000
Total	296,057	455,457

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LIABILITY:

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After considering the materials available on record, the Tribunal has given a finding that as on the date of accident, the offending vehicle was not having valid permit. Since the insured has violated the policy conditions, the Tribunal has rightly exonerated the Insurance Company from liability. But, however, since the claimant is a third party, in view of the decision the Apex Court in the case of AMRIT PAUL SINGH AND ANOTHER V. TATA AIG GENERAL INSURANCE COMPANY LIMITED AND OTHERS [(2018) 7 SCC 558], the Insurance Company is liable to pay the compensation to the claimant and later recover the same from the owner of the offending vehicle.

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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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NC: 2024:KHC:38830 MFA No. 6416 of 2018

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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 Rs.455,457/-.

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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%

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p.a.

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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. However, the compensation awarded under the head of 'future medical expenses' shall not carry any interest.

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f) After deposit, the Insurance Company is at liberty to recover the same from the owner of the offending vehicle.

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Sd/(H.T. NARENDRA PRASAD) JUDGE

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List No.: 1 Sl No.: 56

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Venkatesh v. Kantha K. M.

Case brief

What is this about?

What did the court decide?

Venkatesh v. Kantha K. M.

Case brief

What is this about?

What did the court decide?

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