Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 1264 (KAR)

Regional Manager v. Raju

2023-11-02

H.T.NARENDRA PRASAD

body2023
JUDGMENT 1. MFA No.4564/2020 is filed by the Insurance Company and MFA No.221/2021 is filed by the claimant under Sec. 173(1) of the Motor Vehicles Act, (for short, 'the Act') being aggrieved by the judgment and award dtd. 12/2/2020 passed by the Additional District and Sessions Judge, Chamarajanagar (sitting at Kollegal) (for short, 'the Tribunal') in MVC No.360/2014. Since the challenge is to the same judgment, both the appeals are clubbed together, heard and common judgment is being passed. 2. Facts giving rise to the filing of the appeals briefly stated are that on 13/3/2023 at about 6.15 p.m. the claimant was proceeding in a motorcycle bearing registration No.KA-10/Q-5509 along with a pillion rider from Terakanambi towards Lakkuru village. When they reached near the bridge at Terekanambi Hundi petrol bunk, at that time, a lorry bearing registration No.KA05/C-7997 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle in which the claimant was proceeding. As a result of the aforesaid accident, the claimant fell down, sustained grievous injuries and was hospitalized. 3. The claimant filed petition under Sec. 166 of the Act seeking compensation. It was pleaded that he has 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. The age, avocation and income of the claimants and the medical expenses are denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the driver of the lorry was not having a valid and effective driving licence. It was further pleaded that the liability is subject to the terms and conditions of the policy. 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 and hence he 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. 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 and hence he 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 examined himself as PW-1 and got exhibited documents namely Ex.P1 to Ex.P9 and also examined CW1 - Dr.T.S.Vasan and produced Exs. C1 to C3. On behalf of the respondents, neither any witness was examined nor got exhibited documents. 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 compensation of Rs.11, 50, 645.00 along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed. 6. The learned counsel appearing for the Insurance Company has raised the following contentions: (i) Firstly, the accident occurred due to the negligence of the claimant. He came in a rash and negligent manner and dashed against the lorry and the accident has occurred in the middle of the road. But the Tribunal has erred in holding that the driver of the lorry alone is negligent in causing the accident. (ii) Secondly, even though the doctor has deposed that the claimant has suffered 65% whole body disability, he has not suffered physical disability. Considering the injuries sustained by the claimant, the disability assessed by the Tribunal at 65% is on the higher side. (iii) Thirdly, the claimant was inpatient for a period of 40 days. Considering the evidence of the doctor and the injuries suffered by the claimant, the compensation awarded by the Tribunal for 'pain and sufferings' and other incidental expenses is on the higher side. Hence, he prays for allowing the appeal filed by the Insurance Company and dismissal of the appeal filed by the claimant. 7. Per contra, the learned counsel for the claimant has raised the following contentions: (i) Firstly, accident has occurred due to the negligence of the driver of the lorry. Hence, he prays for allowing the appeal filed by the Insurance Company and dismissal of the appeal filed by the claimant. 7. Per contra, the learned counsel for the claimant has raised the following contentions: (i) Firstly, accident has occurred due to the negligence of the driver of the lorry. He was driving the lorry at a high speed and in a rash and negligent manner and came from right side and dashed against the motorcycle. Immediately thereafter the police have registered FIR against the driver of the lorry and filed the charge sheet. Considering the evidence of the parties and the materials available on record, the Tribunal has rightly held that the driver of the lorry alone is negligent in causing the accident. (ii) Secondly, due to the accident, the claimant has suffered head injury. He has examined the doctor. The doctor has deposed that the claimant has suffered 65% whole body disability. Considering the injuries suffered by the claimant and the medical records, the Tribunal has rightly assessed the whole body disability as 65%. (iii) Thirdly, at the time of the accident claimant was aged about 23 years. Due to the head injury, he was unable to do his day today work and the Tribunal has not considered addition of future prospects. In support of his contentions, he relied on the judgments of the Apex Court in the case of 'PAPPU DEO YADAV vs. NARESH KUMAR AND OTHERS' 2020 SCC Online SC 752 and 'ERUDHAYA PRIYA vs. STATE EXPRESS TRANSPORT CORPORATION LTD. 2020 SCC Online SC 601'. (iv) Fourthly, due to accidental injury, the claimant has suffered 65% whole body disability. He has to suffer the disability and unhappiness throughout his life. The Tribunal has not awarded any compensation for 'loss of amenities' and the compensation awarded by the Tribunal for 'pain and sufferings' and other incidental expenses is on the lower side. Hence, he prays for allowing the appeal filed by the claimant and dismissing the appeal filed by the Insurance Company. 8. Heard the learned counsel for the parties and perused the judgment and award and the original records. 9. The case of the claimant is that on 13/3/2023 at about 6.15 p.m. he was proceeding in a motorcycle bearing registration No.KA-10/Q-5509 along with a pillion rider from Terakanambi towards Lakkuru village. 8. Heard the learned counsel for the parties and perused the judgment and award and the original records. 9. The case of the claimant is that on 13/3/2023 at about 6.15 p.m. he was proceeding in a motorcycle bearing registration No.KA-10/Q-5509 along with a pillion rider from Terakanambi towards Lakkuru village. When they reached near the bridge at Terekanambi Hundi petrol bunk, at that time, a lorry bearing registration No.KA05/C-7997 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle in which the claimant was proceeding. As a result of the aforesaid accident, the claimant fell down, sustained grievous injuries and was hospitalized. To prove the case, claimant examined himself as PW1 and he has produced 9 documents. To disprove the case of the claimant the respondents have neither examined any witnesses nor marked any documents. Considering the IMV report and the mahazar it is very clear that the accident has occurred at the middle of the road. The driver of the lorry came in a rash and negligent manner and dashed against the motorcycle. The rider of the motorcycle was riding the motorcycle in the middle of the road. Considering the evidence of PW1, IMV report, mahazar and FIR, I am of the opinion that the claimant has also contributed 10% to the accident. Therefore, in respect of negligence is concerned, the driver of the lorry has contributed 90% to the accident and the claimant has contributed 10% to the accident. Re.quantum: 10. Even though the claimant claimed that he was earning Rs.15, 000.00 per month, he has not produced any document to establish the same. Therefore, the notional income has to be assessed as per the guidelines issued by the Legal Services Authority. For the accident occurred in 2013, notional income has to be considered as Rs.8, 000.00. Due to the accident the claimant has suffered fracture involving the lateral wall of orbit and zygomatic fracture. He has examined the doctor as CW1. In his evidence the doctor has deposed that the claimant has suffered 65% whole body disability. Considering the injuries suffered by the claimant and considering the evidence of the doctor, wound certificate "" Ex.P6, I am of the opinion that the whole body disability has to be assessed at 50%. At the time of the accident claimant was aged about 23 years. Considering the injuries suffered by the claimant and considering the evidence of the doctor, wound certificate "" Ex.P6, I am of the opinion that the whole body disability has to be assessed at 50%. At the time of the accident claimant was aged about 23 years. He suffered head injury. He has to suffer throughout his life. This injury will affect his avocation. Therefore, in view of the law laid down by the Hon'ble Apex Court in the case of PAPPU DEO YADAV (supra) and ERUDHAYA PRIYA (supra), the claimant is entitled for addition of future prospects. In view of the law laid down by the Hon'ble Apex Court in the case of NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS [ AIR 2017 SC 5157 ], since the claimant was aged about 23 years, 40% of his income has to be added towards future prospects and the applicable multiplier is 18'. Hence, the monthly income of the claimant comes to Rs.11, 200.00 (Rs.8, 000.00 + Rs.3, 200.00). Thus, the claimant is entitled to Rs.12, 09, 600.00 (Rs.11, 200.00x12x18x50%) on account of 'loss of future income due to disability'. 11. Due to the accident, the claimant has suffered grievous injuries. He was inpatient for a period of 40 days. He has suffered lot of pain during treatment. Considering the evidence of the doctor and injuries suffered by the claimant, I am of the opinion that the compensation awarded by the Tribunal for 'pain and sufferings' has to be enhanced from Rs.20, 000.00 to Rs.60, 000.00, for 'food, conveyance and attendant charges' from Rs.16, 000.00 to Rs.20, 000.00 and 'loss of income during laid-up period' for a period of three months, i.e., Rs.24, 000.00 (Rs.8, 000.00*3). Due to the accident the claimant has suffered 65% whole body disability and he has to suffer throughout his life, he is entitled for loss of amenities at Rs.50, 000.00. Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable. 12. Thus, the claimant is entitled to the following compensation: 13. In the result, I pass the following order: (i) The appeals are disposed of. (ii) The judgment of the Claims Tribunal is modified. The claimant is entitled to 90% of Rs.15, 60, 645.00, i.e., Rs.14, 04, 580.00 as against Rs.11, 50, 645.00 awarded by the Tribunal. 12. Thus, the claimant is entitled to the following compensation: 13. In the result, I pass the following order: (i) The appeals are disposed of. (ii) The judgment of the Claims Tribunal is modified. The claimant is entitled to 90% of Rs.15, 60, 645.00, i.e., Rs.14, 04, 580.00 as against Rs.11, 50, 645.00 awarded by the Tribunal. (iii) The Insurance Company is directed to deposit the compensation amount along with interest @ 6% p.a. 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. (iv) The amount in deposit is ordered to be transferred to the Tribunal forthwith. (v) All pending applications stand disposed of.