SRI. SHIVAKUMARASWAMY v. SRI. EGBERT G D'SOUZA

(BY SRI.SANJAY KUMAR A., ADVOCATE FOR R1: SRI O.MAHESH, ADVOCATE FOR R2) …RESPONDENTS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED. 23.08.2019, PASSED IN MVC NO.216/2018, ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT, CHANNARAYAPATNA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD ORAL JUDGMENT

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 - 3 - NC: 2024:KHC:31516 MFA No. 88 of 2020 dated 23.08.2019 passed by the Additional Senior Civil Judge and MACT, Channapatna (hereinafter referred to as ‘the Tribunal’) in MVC No.216/2018.

Facts giving rise to the filing of the appeal briefly stated are that on 20.11.2017 at about 12.15 p.m., when the claimant was proceeding on the motorcycle bearing registration No.KA-06/R-2776 from Kodihalli village on NH 206 near SBI Bank of Biligere Village, at that time, a car bearing registration No.KA-03/MP-3678 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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. - 4 - NC: 2024:KHC:31516 MFA No. 88 of 2020

Upon service of notice, the respondent Nos.1 and 2 appeared through counsel and filed separate written statements denying the averments made in the claim petition.

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-2, and Dr.S.C.Kiran as CW-1 and, got exhibited documents namely Ex.P1 to Ex.P19 and C1 to C10. On behalf of the respondents, neither any witness was examined nor got marked any 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 a compensation of Rs.1,32,168/- along with interest at the rate of 9% p.a. and directed the Insurance Company to deposit the - 5 - NC: 2024:KHC:31516 MFA No. 88 of 2020 compensation amount along with interest. Being aggrieved, the present appeal has been filed.

4. The learned counsel for the claimant raised the following contentions: a) Firstly, the Tribunal erred in assuming the monthly income of the claimant as Rs.7,500/-, despite claiming that he earned Rs.20,000/- per month by doing agriculture. b) Secondly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 19 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 the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are on the lower side. With the above submissions, learned counsel for the appellant sought to allow the appeal. - 6 - NC: 2024:KHC:31516 MFA No. 88 of 2020

5. On the other hand, the learned counsel for the Insurance Company raised following counter- contentions: a) Firstly, the assertion of claimant that he was earning Rs.7,500/- 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. b) Secondly, the Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 9.28%. c) Thirdly, the injuries suffered by the claimant are minor in nature and he was inpatient for only 19 days. Considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are just and reasonable and it does not warrant interference. - 7 - NC: 2024:KHC:31516 MFA No. 88 of 2020 d) Lastly, in light of the Division Bench decision of this Court in the case of Ms.Joyeeta Bose and others –v- Venkateshan.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. With the above submissions, learned counsel for the Insurance Company sought to dismiss the appeal.

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

It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 20.11.2017 due to rash and negligent driving of the offending vehicle by its driver.

The claimant claims that he was earning Rs.20,000/- per month. But he has not produced any documents to substantiate his claim. Therefore, in the absence of proof - 8 - NC: 2024:KHC:31516 MFA No. 88 of 2020 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 2017, notional income shall be taken at Rs.11,000/- p.m.

As per wound certificate, the claimant has deficient movement at left knee and left ankle joint, difficulty to sit crossed legs, to sit for long time, for walking and climbing stairs. The doctor in his evidence has stated that the claimant has suffered disability of 27.85% to the left leg and 9.28% whole body disability. Therefore, taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate, I am of the opinion that the whole body disability can be taken at 10%. The claimant was aged about 57 years at the time of the accident and multiplier applicable to his age group is ‘9’. Thus, the claimant is entitled for compensation of Rs.1,18,800/- (Rs.11,000*12*9*10%) on account of 'loss of future income'. - 9 - NC: 2024:KHC:31516 MFA No. 88 of 2020

The nature of injuries indicates that the claimant must have been under rest and treatment for a period of three months. Consequently, the claimant is entitled for compensation of Rs.33,000/- (Rs.11,000*3 months) under the head ‘loss of income during laid up period’.

The claimant was hospitalized as an inpatient for more than 19 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.20,000/- to Rs.30,000/- and under the head of 'loss of amenities' from Rs.10,000/- to Rs.20,000/-.

Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable. - 10 - NC: 2024:KHC:31516 MFA No. 88 of 2020

Thus, the claimant is entitled to the following compensation: Compensation under different Heads As awarded by the Tribunal As awarded by this Court (Rs.) (Rs.) Pain and sufferings 20,000 30,000 Food, nourishment, conveyance and attendant charges Loss of income during laid up period 12,000 12,000 15,000 33,000 Loss of amenities 10,000 20,000 Loss of future income 75,168 1,18,800 Total 1,32,168 2,13,800