Partly allowed

Ajit Basappa Tubaki v. the Chairman

Karnataka HC28 Aug 2024MFA/8852/2018

Case brief

AI extract

What is this about?

This is a first appeal filed under Section 173(1) of the Motor Vehicles Act challenging the compensation award of the Claims Tribunal. The High Court modified the award, enhancing compensation for pain and suffering, loss of amenities, and loss of future income to Rs. 421,180, and reduced the applicable interest rate from 9% to 6% per annum.

What did the court decide?

Appeal allowed in part; compensation enhanced to Rs. 421,180; interest rate reduced to 6% p.a.; insurance companies directed to deposit 50% each.

Ajit Basappa Tubaki Vs the Chairman — Insurance | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:34390 MFA No. 8852 of 2018

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 28^TH DAY OF AUGUST, 2024

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 8852 OF 2018 (MV)

¶6

BETWEEN:

¶7

AJIT BASAPPA TUBAKI S/O BASAPPA AGED ABOUT 33 YEARS MEKAL MARADI BAILHONGALA TALUK BELGAVI DISTRICT-590 001

¶8

…APPELLANT

¶9

(BY SRI. B PRAMOD.,ADVOCATE)

¶10

AND:

¶11

THE CHAIRMAN

¶12

Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA

¶13

THE GOKAK TALUK AGRICULTURAL PRODUCE CO-OP MARKETING SOCIETY LTD. OLD MARKET YARD, GOGAK, A/P AND TALUK GOKAK, BELGAVI DISTRICT-591307.

¶14

THE BRANCH MANAGER

¶15

THE NEW INDIA ASSURANCE COMPANY LTD., REP BY THE BRANCH MANAGER NEW INDIA ASSURANCE CO.LTD., VIJASHREE COMPLEX DAVANAGERE ROAD CHITRADURGA-577501.

¶16

VEERABHADRAPPA S C S/O CHANNAPPA MAJOR R/AT HOUSE NO.432 BOOMGONDKER POST

¶17

2 - NC: 2024:KHC:34390 MFA No. 8852 of 2018

¶18

MOLAKALMURU TALUK CHITRADURGA DISTRICT-577501

¶19

THE BRANCH MANAGER NATIONAL INSURANCE CO.LTD., B.M.COMPLEX, LAKSHMI BAZAAR CHITRADURGA-577501

¶20

…RESPONDENTS

¶21

(BY SMT. MAMTHA S SHANKAR., ADVOCATE FOR SRI. E.I. SANMATHI, ADVOCATE FOR R2: SRI. RAVISHANKAR, ADVOCATE FOR R4: NOTICE TO R1 & R3 IS SERVED AND UNREPRESENTED)

¶22

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02.08.2018 PASSED IN MVC NO.39/2017 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT-5, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶23

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

¶24

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

¶25

ORAL JUDGMENT

¶26

This appeal under Section 173(1) of Motor Vehicles

¶27

Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant challenging by the judgment dated 02.08.2018 passed by MACT, Chitradurga in MVC No.39/2017.

¶28

3 - NC: 2024:KHC:34390 MFA No. 8852 of 2018

¶29

Facts giving rise to the filing of the appeal briefly stated are that on 28.05.2016 when the claimant along with another were traveling in the lorry bearing No.KA-16A-893 from Chitradurga to Nagara Munnoli, Chikkodi Taluk, Belgaum, at that time, the driver of the said lorry drove the same in a rash and negligent manner and dashed to another lorry bearing No.KA-49-1871, which was wrongly parked without any precaution and against the traffic rules. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

¶30

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.

¶31

Upon service of notice, the respondent Nos.2 and 4 appeared through counsel and filed written statement

¶32

4 - NC: 2024:KHC:34390 MFA No. 8852 of 2018

¶33

denying the averments made in the claim petition. The respondent Nos.1 and 3, despite service of notice, did not appear before the Tribunal and were placed ex-parte.

¶34

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.Venkatashiva Reddy was examined as PW-4, and got exhibited documents namely Ex.P1 to Ex.P66. On behalf of the respondents, two witnesses were examined as RWs-1 and 2 and got exhibited documents namely Ex.R1 to Ex.R3. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of both the offending vehicles 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.328,000/- along with interest at the rate of 9% p.a. and directed both the insurance companies to deposit the compensation amount along with interest at

¶35

5 - NC: 2024:KHC:34390 MFA No. 8852 of 2018

¶36

50% each. Being aggrieved, the present appeal has been filed.

¶37

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

¶38

a) Firstly, the claimant asserts that he was earning Rs.15,000/- per month by working as cleaner. However, the Tribunal has erred in taking the income as merely as Rs.7,000/- per month.

¶39

b) Secondly, the claimant has examined the doctor as PW-4. The Tribunal undervalued the claimant's whole-body disability at 7%, contradicting the evidence of the doctor that the claimant suffered 22% disability to particular limb.

¶40

c) Lastly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 6 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 compensation awarded by the Tribunal under

¶41

6 - NC: 2024:KHC:34390 MFA No. 8852 of 2018

¶42

the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are on the lower side.

¶43

With the above contentions, the learned counsel sought to allow the appeal.

¶44

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

¶45

a) Firstly, the assertion of claimant that he was earning Rs.7,000/- 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.

¶46

b) Secondly, the Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 7%.

¶47

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

¶48

7 - NC: 2024:KHC:34390 MFA No. 8852 of 2018

¶49

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

¶50

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.

¶51

With the above contentions, the learned counsel sought to dismiss the appeal.

¶52

Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.

¶53

It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 28.05.2016 due to rash and negligent driving of the offending vehicle by its driver.

¶54

8 - NC: 2024:KHC:34390 MFA No. 8852 of 2018

¶55

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.

¶56

As per wound certificate, the claimant has sustained tenderness present on left thigh, left keen, left leg, and left foot, movements of left knee restricted and painful. There is muscular weakness in left leg. The doctor in his evidence has stated that the claimant has suffered disability of 22% to particular limb. 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 7%. The claimant is aged about 32 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.127,680/-

¶57

9 - NC: 2024:KHC:34390 MFA No. 8852 of 2018

¶58

(Rs.9,5001216*7%) on account of 'loss of future income'.

¶59

The nature of injuries indicates that the claimant must have been under rest and treatment for a period of3 months. Consequently, the claimant is entitled for compensation of Rs.28,500/- (Rs.9,500*3 months) under the head ‘loss of income during laid up period’.

¶60

The claimant was hospitalized as an inpatient for more than 6 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, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'pain and sufferings' from Rs.25,000/- to Rs.50,000/- and under the head of 'loss of amenities' from Rs.20,000/- to Rs.40,000/- .

¶61

10 - NC: 2024:KHC:34390 MFA No. 8852 of 2018

¶62

14. Considering the nature of injuries, the compensation

¶63

awarded by the Tribunal under other heads is just and reasonable.

¶64

Thus, the claimant is entitled to the following

¶65

compensation:

¶66

Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	25,000	50,000
Medical expenses	140,000	140,000
Food, nourishment, conveyance and attendant charges	15,000	15,000
Loss of income during laid up period	14,000	28,500
Loss of amenities	20,000	40,000
Loss of future income	94,000	127,680
Future medical expenses	20,000	20,000
Total	328,000	421,180

¶67

In the result, the following order is passed:

¶68

11 - NC: 2024:KHC:34390 MFA No. 8852 of 2018

¶69

ORDER

¶70

a) The appeal is allowed in part .

¶71

b) The judgment of the Claims Tribunal is modified. c) The claimant is entitled to a total compensation of Rs.421,180/-.

¶72

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.

¶73

e) Both respondent No.2 and respondent No.4 are directed to deposit the compensation amount at 50% each 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.

¶74

Sd/(H.T. NARENDRA PRASAD) JUDGE

¶75

¶76

List No.: 1 Sl No.: 20

Ajit Basappa Tubaki v. the Chairman

Case brief

What is this about?

What did the court decide?

Ajit Basappa Tubaki v. the Chairman

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Maheshnaika G Vs Vishwanath

Mr Sinan Vs Sri N R Navaneesh

Chandregowda Vs Mohammed Mohiddin Shariff @

Sri Chandranaika Vs Sri Venkatesha Reddy

Umesh K Vs Yusuf K

Mrs Vishalakshi Kathari @ Vishalakshmi Yankanchi Vs Mr Sangamesh Yankanchi