Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1224 (KAR)

Suresh Hosamane v. Sridhar S

2020-06-25

ALOK ARADHE, M.NAGAPRASANNA

body2020
JUDGMENT M Nagaprasanna, J. - This appeal, though listed for admission, is taken up for final disposal with the consent of the learned counsel appearing for the parties. 2. 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 9.11.2015 passed by the Senior Civil Judge and Additional Motor Accident Claims Tribunal, Kundapura, in M.V.C. No.99/2014. 2. Facts giving rise to the filing of the appeal briefly stated are that the claimant on 24.11.2013 at about 11.00 a.m. was riding a motor cycle bearing registration No. KA-20-J-4692 from Halealive side towards Koteshwara. When he reached near Manjushree Stores, Kambri, Koteshwara village, a motor cycle bearing registration No.KA-20-X-1235 came from Koteshwara towards Halealive side, which was being driven by its driver in a rash and negligent manner, lost control and dashed against motor cycle of the claimant. Due to the injuries sustained, the claimant was immediately shifted to N.R.A.M. Hospital and took treatment as inpatient from 24.11.2013 to 15.12.2013 and was thereafter shifted to KMC hospital, Manipal, for further treatment. In all, the claimant claims to have spent Rs.1,25,000/- towards medial expenses, Rs.65,000/- towards nourishing food, Rs.40,000/- towards conveyance and Rs.85,000/- towards future medical expenses. The claimant filed a claim petition before the Tribunal contending that he was a mason and also a coolie earning about Rs.15,000/- per month and due to accidental injuries, suffered huge loss and also future income and claimed compensation to the tune of Rs.21,15,000/- along with interest. 3. On service of notice, the 1st respondent remained absent and placed ex-parte. The 2nd respondent-insurance company filed statement of objections admitting the policy in respect of motor cycle bearing registration No. No.KA-20-X-1235, but denied that the accident had occurred due to rash and negligent driving of the offending vehicle. It was also contended that the claimant did not possess a valid driving licence. It was also contended that the claim petition of the claimant was fraudulent. 4. On the basis of the pleadings of the parties, the Tribunal framed the issues and thereafter recorded the evidence. The claimant, in order to prove his case, examined three witnesses namely P.Ws.1 to 3 and produced 17 documents namely Ex.P1 to Ex.P.17. It was also contended that the claim petition of the claimant was fraudulent. 4. On the basis of the pleadings of the parties, the Tribunal framed the issues and thereafter recorded the evidence. The claimant, in order to prove his case, examined three witnesses namely P.Ws.1 to 3 and produced 17 documents namely Ex.P1 to Ex.P.17. P.W.1 is the claimant himself, P.W. 2 is the eye witness and P.W.3 is an Associate Professor of Psychiatry, Manipal, who assessed the claimant with regard to his disability. The 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.2,40,750/-. Being aggrieved by the award of such compensation by the Tribunal, the claimant has preferred the instant appeal seeking enhancement of compensation. 5. We have heard Sri Nagaraja H.R., learned Counsel appearing for the appellant and Sri O. Mahesh, learned Counsel appearing for respondent No.2. 6. Learned counsel for the appellant would contend that the award of compensation by the Tribunal is meager as the Tribunal has taken the income of the claimant at Rs.7,000/- per month and it is erroneous as the claimant was earning Rs.15,000/- per month. It is contended that the disability of the claimant which is a cognitive disability at 17% assessed by the doctor is ignored by the Tribunal. 7. On the other hand, learned Counsel respondent insurance company would contend that there was no proof for the income of the claimant to be at Rs.15,000/- per month and in the absence of proof, since the claimant was a mason cum coolie, minimum wages according to the chart for workmen for the year 2013 will have to be taken into consideration and i.e., R.4,500/- per month and the disability has rightly been rejected by the Tribunal as it was not proved before the Tribunal. He would submit that the judgment of the Tribunal does not call for any interference and the claimant is not entitled to any enhancement of compensation. 8. We have considered the submissions made by the learned counsel for the parties and have perused the record. 9. He would submit that the judgment of the Tribunal does not call for any interference and the claimant is not entitled to any enhancement of compensation. 8. We have considered the submissions made by the learned counsel for the parties and have perused the record. 9. The contention of the learned Counsel for the respondent insurance company is unacceptable as in all cases where the monthly income of the claimant or the deceased is not proved, the chart provided by the High Court Legal Services Committee with regard to notional income qua the year of accident is being consistently taken. There is no warrant to deviate from the same in the case on hand. Admittedly, no evidence is produced by the claimant with regard to his income. Therefore, the notional income has to be fixed as per the guidelines issued by the High Court Legal Services Committee. Since the accident has taken place in the year 2013, the notional income has to be taken at Rs.8,000/- p.m. 10. The claimant has sustained the following injuries: "1. Abrasion 4 X 2 compensation (right leg) 2. rich black eye, 3. Closed head injury 4. Right mandible parasymphysis and right Zygomtic arch fracture." 11. According to the evidence of P.W.3-the doctor, who assessed the disability of the claimant, in his examination has deposed that the claimant has suffered a cognitive disability to the tune of 17% and in his cross-examination, has deposed that the said disability was due to head injury and after some time, can be cured by medication and but recurrence of the problem is not ruled out as it limits mental functioning. In terms of the evidence of the doctor, the Tribunal ought to have taken the disability at 17% and then assessed the compensation on various heads. Therefore, the income of the claimant is taken at Rs.8,000/- per month. Hence, the compensation of the claimant for loss of future income is assessed at Rs.2,44,800/- (Rs.8000 x 12 x 15 x 17/100). 12. Since we have taken Rs.8,000/- per month as the income of the claimant, the loss of income during the laid up period is required to be reassessed. The laid up period of the claimant is seven months and the compensation that the claimant is entitled towards loss of income during laid up period is Rs.8000 x 7 = 56,000/-. 12. Since we have taken Rs.8,000/- per month as the income of the claimant, the loss of income during the laid up period is required to be reassessed. The laid up period of the claimant is seven months and the compensation that the claimant is entitled towards loss of income during laid up period is Rs.8000 x 7 = 56,000/-. Rest of the compensation awarded by the Tribunal on various other heads, being just and proper, is not interfered. 13. The break up of the compensation awarded is as follows: 14. Thus, the claimant is entitled to total compensation of Rs.4,92,550/- Needless to state that 1 Pain and sufferings Rs. 60,000 00 2 Medical expenses, Food and Nourishment, attendant and conveyance charges Rs. 81,750 00 3 Loss of earning during the laid up period Rs. 56,000 00 4 Disability Rs. 2,44,800-00 5 Loss of amenities Rs. 50,000 - 00 Total Rs.4,92,550 -00 the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. To the aforesaid extent, the judgment of the Tribunal is modified. Accordingly, the appeal is disposed of.