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2022 DIGILAW 757 (KAR)

Chandan S. S. v. M. Ravikumar

2022-06-17

H.T.NARENDRA PRASAD

body2022
JUDGMENT H.T. Narendra Prasad, J. - 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 and decree dated 21.09.2019 passed by the Additional Senior Civil Judge & JMFC, Ramanagara in MVC No. 509/2016. 2. Facts giving rise to the filing of the appeal briefly stated are that on 04.12.2015 at about 03.15 P.M. the claimant was going from Revanasiddeshwara Hill towards Averahalli Gate in Auto rickshaw bearing Registration No. KA-42-4136. When the said Auto Rickshaw reached near Averahalli Gate, the driver of the Lorry bearing Registration No. KA-05-AD-3752 drove the same in a rash and negligent manner and dashed against the Auto Rickshaw. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized. 3. The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver. 4. On service of notice, the respondent No. 2 appeared through counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. The driver of the offending vehicle did not have valid driving licence and was plying beyond the permitted limit and without fitness certificate as on the date of the accident. The liability is subject to terms and conditions of the policy. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition. The respondent No. 1 did not appear before the Tribunal inspite of service of notice and was placed ex-parte. 5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr. Manjunatha H, was examined as PW-2 and got exhibited documents namely Ex. P1 to Ex. P11. On behalf of the respondents, one witness was examined as RW-1 and got exhibited documents namely Ex. R1 to Ex. R2. The claimant himself was examined as PW-1 and Dr. Manjunatha H, was examined as PW-2 and got exhibited documents namely Ex. P1 to Ex. P11. On behalf of the respondents, one witness was examined as RW-1 and got exhibited documents namely Ex. R1 to Ex. R2. 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. 2,42,000/- along with interest at the rate of 7% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed. 6. Sri Raju. S, learned counsel for the claimant has raised the following contentions: Firstly, even though the claimant claims that he was working as a mason and earning Rs. 1,000/- per day, but the Tribunal has taken the notional income as merely as Rs. 6,000/- per month. Secondly, PW-2, the doctor has stated in his evidence that the claimant has suffered permanent physical and functional disability of 8% to the left arm and 18% to the left forearm and hand and 24% to the whole body. But the Tribunal has erred in taking the whole body disability at only 8.66%. Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 84 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 granted by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other heads are on the lower side. Hence, he sought for enhancement of compensation. 7. On the other hand, Sri Ravi S. Samprathi, the learned counsel for the Insurance Company has raised following counter contentions: Firstly, even though the claimant claims that he was earning Rs. 1,000/- per day, he has not produced any documents to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally. 7. On the other hand, Sri Ravi S. Samprathi, the learned counsel for the Insurance Company has raised following counter contentions: Firstly, even though the claimant claims that he was earning Rs. 1,000/- per day, he has not produced any documents to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally. Secondly, PW-2, the doctor has stated in his evidence that even though the claimant has suffered permanent physical and functional disability of 8% to the left arm and 18% to the left forearm and hand and 24% to the whole body, the Tribunal has considered 1/3rd of the total disability to assess whole body disability. Therefore, the whole body disability assessed by the Tribunal 8.66% is just and reasonable. Thirdly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the overall compensation awarded by the Tribunal is just and reasonable compensation. Lastly, in view of judgment of the Division Bench of this Court in the case of Ms. Joyeeta Bose And Others vs. Venkateshan. V. and Others (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the claimants are entitled for 6% interest but the Tribunal has granted 7% interest is on the higher side. Hence, he sought for dismissal of the appeal. 8. Heard the learned counsel for the parties and perused the records. 9. It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver. The claimant claims that he was earning Rs. 1,000/- per day. He has not produced any documents to prove his income. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2015, the notional income has to be taken at Rs. 9,000/- p.m. As per wound certificate, the claimant has sustained mild degree tenderness over the left shoulder joint and lower elbow and lower wrist etc. PW-2, the doctor has stated in his evidence that the claimant has suffered permanent physical and functional disability of 8% to the left arm and 18% to the left forearm and hand and 24% to the whole body. PW-2, the doctor has stated in his evidence that the claimant has suffered permanent physical and functional disability of 8% to the left arm and 18% to the left forearm and hand and 24% to the whole body. Therefore, taking into consideration the deposition of the doctor, PW-2 and injuries mentioned in the wound certificate, the Tribunal has rightly taken the whole body disability at 8.66%. The claimant is aged about 35 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. 1,49,645/- (Rs. 9,000*12*16*8.66%) on account of 'loss of future income'. The nature of injuries suggests that the claimant must have been under rest and treatment for a period of 08 months. Therefore, the claimant is entitled for compensation of Rs. 72,000/- (Rs. 9,000*8 months) under the head 'loss of income during laid up period'. The claimant was treated as inpatient for more than 84 days in the hospital and thereafter, has received further treatment. Hence, I am inclined to enhance the compensation awarded under the head of 'conveyance, nourishment and attendance charges' from Rs. 30,000/- to Rs. 40,000/-. Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He has suffered lot of pain during treatment and he has to suffer with the disability stated by the doctor throughout his life. Considering the same, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'loss of amenities' from Rs. 10,000/- to Rs. 40,000/- and 'pain and suffering' from Rs. 45,000/- to Rs. 55,000/-. Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable. 10. Thus, the claimant is entitled to the following compensation: Compensation under different Heads As awarded by the Tribunal (Rs.) As awarded by this Court (Rs.) Pain and sufferings 45,000.00 55,000.00 Medical expenses 21,284.50 21,284.50 Food, nourishment, conveyance and attendant charges 30,000.00 40,000.00 Loss of income during laid up period 36,000.00 72,000.00 Loss of amenities 10,000.00 40,000.00 Loss of future income 99,736.00 1,49,645.00 Total 2,42,020.50 3,77,929.50 Rounded of 2,42,000 3,77,930 11. In the result, the appeal is allowed in part. The judgment of the Claims Tribunal is modified. The claimant is entitled to a total compensation of Rs. 3,77,930/- as against Rs. 2,42,000/- awarded by the Tribunal. In the result, the appeal is allowed in part. The judgment of the Claims Tribunal is modified. The claimant is entitled to a total compensation of Rs. 3,77,930/- as against Rs. 2,42,000/- awarded by the Tribunal. In view of judgment of the Division Bench of this Court in the case of 'Ms. Joyeeta Bose', the enhanced compensation amount shall carry interest at 6% per annum. The Insurance Company is directed to deposit the compensation amount along with interest @ 7% p.a. (the enhanced compensation amount shall carry interest at 6% per annum) 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.