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2020 DIGILAW 1718 (KAR)

Venkatesha v. Basavaraju P L

2020-09-04

ALOK ARADHE, H.T.NARENDRA PRASAD

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JUDGMENT H T Narendra Prasad, J. - 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 26.08.2015 passed by the Motor Accident Claims Tribunal seeking enhancement of compensation. 2. Facts giving rise to the filing of the appeal briefly stated are that on 02.05.2014 in between 5.00 6.00 p.m. claimant was standing by the side of Bengaluru Mangalore National highway in front of Venkateshwara Kalayanamantapa at Yediyur. At that time, the driver of Icon Ford car bearing registration No.KA-06/C-747 drove the same in a rash and negligent manner and dashed against the claimant. As a result of the aforesaid accident, the claimant sustained injuries and was hospitalized. 3. The claimant filed a petition under Section 166 of the Act on the ground that at the of the accident claimant was aged 34 years and doing agriculture and also business and earning Rs. 20,000/- p.m. It was further pleaded that on account of the injuries sustained in the accident, he had suffered permanent disability and he became unemployed. On service of notice, the respondent No.2 filed written statement in which the averments made in the petition were denied except admitting that at the time of the accident the car in question was having insurance coverage. It was pleaded that the driver of the car was not having valid and effective driving licence to drive the car and violated the terms and conditions of the policy. Hence, he prays for dismissal of the petition. The respondent No.1 even though served did not appear and hence, he was placed ex-parte. 4. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant was examined as PW-1 and got exhibited documents namely Ex.P1 to Ex.P14. The respondents did not adduce any evidence, but got exhibited the document as Ex.R1. The claimant also examined CW-1 Dr.Prasad and got exhibited documents as Ex.C1 to Ex.C3. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the car 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. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the car 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. 12,80,000/- along with interest at the rate of 9% p.a. Being aggrieved, this appeal has been filed. 5. Learned counsel for the claimant submitted that at the time of the accident claimant was aged about 34 years and he was earning Rs. 20,000/- per month by doing agricultural work and bamboo business, but the Tribunal has taken the notional income as only Rs. 8,000/- per month. Secondly, due to the accident claimant had suffered grievous injuries and his right leg above knee was amputated and he has also suffered fracture of left femur. Dr.Prasad who was examined as CW-1 has stated that the claimant is having 100% impairment of lower limb and he cannot do his regular work and the disability assessed by the Tribunal at 35% is on the lower side. Thirdly, claimant has produced Exs.P7, P8, P13 and P14 as medical bills. Even though claimant claims that he claimed Rs. 2,14,376/- as medical expenses, the Tribunal has granted only a meager sum of Rs. 50,000/- towards medical expenses. Hence, he sought for enhancement of the compensation. 6. On the other hand, learned counsel for the insurance company submitted that even though the claimant has claimed that he was earning Rs. 20,000/- per month he has not produced any documents to establish his income. Therefore, the Tribunal has rightly considered the notional income as Rs. 8,000/- per month. Secondly, there is a clear finding of the Tribunal that there is no loss of income to the claimant due to disability. Therefore, the Tribunal is not justified in granting additional 50% of the income for future prospects. Thirdly, Exs. P13 and P14 cannot be considered as genuine medical bills. It does not carry the name of the doctor or date. It is created only for the purpose of claming compensation. Fourthly, the compensation awarded by the Tribunal for pain and suffering and loss of amenities are on the higher side. Hence, he sought for dismissal of the appeal. 7. We have considered the submissions made by the learned counsel for the appellant and have perused the record. It is created only for the purpose of claming compensation. Fourthly, the compensation awarded by the Tribunal for pain and suffering and loss of amenities are on the higher side. Hence, he sought for dismissal of the appeal. 7. We have considered the submissions made by the learned counsel for the appellant and have perused the record. It is not in dispute that the claimant suffered injuries in the road traffic accident occurred on 02.05.2014. The claimant claimed that at the time of accident he was aged 34 years and was doing agriculture and bamboo business and earning Rs. 20,000/- per month but he has not produced any document to establish the same. As per the Circular issued by the Karnataka legal Services Authority, for the accident of the year 2014, notional income has to be fixed as Rs. 8,500/-. Accordingly, notional income is considered as Rs. 8,500/-. Now that the monthly income of the claimant has been raised from Rs.8,000/- to Rs.8,500/-, the compensation granted by the Tribunal under the head loss of earnings during the period of treatment has to be enhanced. 8. Due to the accident the claimant suffered the grievous injuries. His right leg is amputated above the knee and his left femur was fractured. Dr.Prasad CW-1 in his deposition has stated as under: MOVEMENT Joint Movement Aetur range 1.Hip joint Flexion-15'-110' 0'-160' Rotation- 0'25' 0' 45 2. Knee Flexion - 0'-60' 0'-160' joint He has further stated that there is 60% permanent disability in respect of left lower limb and there is 100% impairment of lower limb. Taking into consideration the deposition of the doctor and PW1 claimant and the documents produced, we are of the opinion that the whole body disability can be assessed at 50%. At the time of the accident the age of the claimant was assessed by the Tribunal as 36 years to 40 years and the multiplier applicable is 15. Accordingly, the claimant is entitled to Rs. 7,65,000/- on account of loss of future earning capacity (Rs. 8,500 x 12 x 15 x 50/100). The claimant has suffered grievous injuries and remained inpatient for more than 50 days and thereafter, has received treatment. Therefore, it can safely be inferred that he was under treatment for more than two months and hence, he is entitled to Rs. 42,500/- (Rs. 8,500 x 12 x 15 x 50/100). The claimant has suffered grievous injuries and remained inpatient for more than 50 days and thereafter, has received treatment. Therefore, it can safely be inferred that he was under treatment for more than two months and hence, he is entitled to Rs. 42,500/- (Rs. 8,500 x 5) on account of loss of income during the period of treatment. Since the claimant has suffered grievous injuries and was under treatment for more than 50 days. Hence, we are inclined to enhance the compensation awarded under the head attendant charges, special died, conveyance, etc. from Rs. 14,000/- to Rs. 40,000/-. In respect of medical expenses is concerned, claimant was inpatient for more than 50 days. He has undergone surgery and his right leg was amputated above knee and his left femur was fractured. Taking into consideration the injuries suffered, hospitalization and the medical bills produced, we are inclined to enhance the compensation granted under the head medical expenses from Rs. 50,000/- to Rs. 1,00,000/-. The doctor CW1 in his evidence has deposed that claimant requires Rs. 30,000/- for future medical expenses. Hence, we are inclined to enhance the compensation awarded under the head future medical expenses from Rs. 20,000/- to Rs. 30,000/-. The compensation granted under the heads pain and sufferings and loss of amenities are not disturbed. Thus, the compensation awarded by the Tribunal is modified as under: Compensation under different Categories As awarded by the Tribunal (Rs.) As awarded by this Court (Rs.) Pain and sufferings 2,00,000/- 2,00,000/- Loss of amenities, future unhappiness and discomforts 2,00,000/- 2,00,000/- Medical expenses 50,000/- 1,00,000/- Future medical expenses 20,000/- 30,000/- Loss of income during treatment and laid up period 40,000/- 42,500/- Future loss of income due to disability 7,56,000/- 7,65,000/- Attendant charges, special diet, conveyance and miscellaneous expenses 14,000/- 40,000/- Total 12,80,000/- 13,77,500/ claimant is entitled to a total compensation to the tune of Rs. 13,77,500/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 9% p.a. from the date of petition till payment is made. To the aforesaid extent, the judgment of the Claims Tribunal is modified. Accordingly, the appeal is allowed in part.