PRAKASHA v. CHIKKEGOWDA @ GOOTEGOWDA

(BY SRI.C.R. RAVISHANKAR., ADVOCATE FOR R6: NOTICE TO R1, 4 & R5 IS SERVED AND UNREPRESENTED: NOTICE TO R2 & R3 IS DISPENSED WITH V/O DATED: 16.01.2023) …RESPONDENTS THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.04.2019, PASSED IN MVC NO. 695/2016 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND MACT, MANDYA, 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:33580 MFA No. 699 of 2020 dated 09.04.2019 passed by the II Additional Senior Civil Judge and MACT, Mandya (hereinafter referred to as ‘the Tribunal’) in MVC No.695/2016.

2. Facts giving rise to the filing of the appeal briefly stated are that on 24.06.2015 at about 9.45 a.m., when the claimant was proceeding as a pillion rider on motorcycle bearing registration No.KA-11/EB-8607 from Mandya towards Balachanchi Village, near Ganta Gowdanahalli Gate, two tractors were coming from the opposite direction, out of which one tractor stopped the vehicle on the left side of the road and another tractor and trailer bearing registration No.KA-11/T-9523/9524 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.

3. The claimant filed a petition under Section 166 of the Act, seeking compensation. It was pleaded that he spent significant amount towards medical expenses, - 4 - NC: 2024:KHC:33580 MFA No. 699 of 2020 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. Upon service of notice, the respondent Nos.1 and 2 appeared through counsel and respondent No.2 filed written statement denying the averments made in the claim petition.

5. 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-1 and got exhibited documents namely Ex.P1 to Ex.P20. 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 - 5 - NC: 2024:KHC:33580 MFA No. 699 of 2020 claimant is entitled to a compensation of Rs.8,16,560/- 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, the present appeal has been filed.

6. The learned counsel for the claimant raised the following contentions: (i) Firstly, the Tribunal erred in assuming the monthly income of the claimant as Rs.8,000/-, despite claiming that he earned Rs.20,000/- per month by working as a flower vendor. (ii) Secondly, the claimant has examined the doctor as PW-2. The Tribunal undervalued the claimant's whole-body disability at 18%, contradicting the evidence of the doctor that the claimant suffered 72.9% disability to a particular limb and 24.3% to the whole body. (iii) Lastly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for - 6 - NC: 2024:KHC:33580 MFA No. 699 of 2020 a period of 4 months. 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.

7. On the other hand, the learned counsel for the Insurance Company raised following counter- contentions: (i) Firstly, the assertion of claimant that he was earning Rs.20,000/- 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. - 7 - NC: 2024:KHC:33580 MFA No. 699 of 2020 (ii) Secondly, the Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 18%. (iii) Thirdly, the injuries suffered by the claimant are minor in nature. 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. With the above submissions, learned counsel for the Insurance Company sought to dismiss the appeal.

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

9. It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 24.06.2015 - 8 - NC: 2024:KHC:33580 MFA No. 699 of 2020 due to rash and negligent driving of the offending vehicle by its driver.

10. 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 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 2015, notional income shall be taken at Rs.9,000/- p.m.

11. As per wound certificate, the claimant has sustained tenderness over head, laceration wound over right shoulder, tenderness with swelling with laceration wound over middle thigh and other injuries. The doctor in his evidence has stated that the claimant has suffered disability of 72.9% to particular limb and 24.3% to whole body. But the Tribunal has taken the whole body disability at 18%, which is on the lower side. Therefore, taking into consideration the deposition of the doctor and injuries - 9 - NC: 2024:KHC:33580 MFA No. 699 of 2020 mentioned in the wound certificate, I am of the opinion that the whole body disability has to be assessed at 24%. The claimant was 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.4,14,720/- (Rs.9,000*12*16*24%) on account of 'loss of future income'.

12. The nature of injuries indicates that the claimant must have been under rest and treatment for a period of 7 months. Consequently, the claimant is entitled compensation of Rs.63,000/- (Rs.9,000*7 months) under the head ‘loss of income during laid up period’.

13. The claimant was hospitalized as an inpatient for more than four months in the hospital and subsequently received further treatment. Therefore, I am inclined to enhance the compensation awarded under the head of ‘food, nourishment, conveyance and attendant charges’ from Rs.44,500/- to Rs.55,000/-. - 10 - NC: 2024:KHC:33580 MFA No. 699 of 2020

14. 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.25,000/- to Rs.50,000/- and under the head of 'loss of amenities' from Rs.20,000/- to Rs.40,000/-.

15. Considering the nature of injuries, compensation awarded by the Tribunal under other heads is just and reasonable.

16. 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 25,000 50,000 Medical expenses 3,94,580 394,580 - 11 - NC: 2024:KHC:33580 MFA No. 699 of 2020 Food, nourishment, conveyance and attendant charges Loss of income during laid up period 44,500 55,000 56,000 63,000 Loss of amenities 20,000 40,000 Loss of future income 2,76,480 414,720 Total 8,16,560 1,017,300

17. In the result, the following order is passed: ORDER (i) The appeal is allowed in part. (ii) The judgment of the Claims Tribunal is modified. (iii) The claimant is entitled to a total compensation of Rs.10,17,300/- as against Rs.8,16,560/- awarded by the Tribunal. (iv) 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 - 12 - NC: 2024:KHC:33580 MFA No. 699 of 2020 realization, within a period of six weeks from the date of receipt of a copy of this judgment. Sd/- (H.T. NARENDRA PRASAD) JUDGE CM List No.: 1 Sl No.: 17