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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY 2021
PRESENT
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA NO.10473 OF 2012(MV)
C/W
MFA NO.5077/2012(MV)
IN MFA 10473/2012
BETWEEN:
MEENA DUBAY M.,
W/O GNANADEV DUBAY M
AGED ABOUT 58 YEARS
R/AT NO.32, RAGHAVA NILAYA
G.M.COTTAGES, DODDABIDRAKALLU
NAGASANDRA POST
BANGALORE-73.
.... APPELLANT
(BY SRI.SHRIPAD V SHASTRI, ADV.)
AND
1. ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
PRESTIGE CORNICHE
62/1, 2ND FLOOR
RICHMOND ROAD
BANGALORE-25.
BY ITS MANAGER.
2. ANBUSHAM
S/O D.S. SHANM MAJOR
2
R/AT NO.58, RAVI KIRLOSKAR LAYOUT
NAGASANDRA POST
BANGALORE-73.
...RESPONDENTS
(BY SRI.LAKSHMINARASAPPA, ADV. FOR
SRI.A.M.VENKATESH, ADV. FOR R1:
NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:26.09.2011 PASSED IN MVC NO.6132/2010
ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL
CAUSES, PRINCIPAL MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA 5077/2012
BETWEEN
M/S ICICI LOMBARD GENERAL
INSURANCE CO. LTD.,
PRESTIGE CORNICHE
BANGALORE-25.
BY ITS MANAGER.
POLICY ISSUED BY ITS BRANCH OFFICE
AT ZENITH HOUSE
KESHAV RAO KHADE MARG
MAHALAXMI, MUMBAI-400 034.
... APPELLANT
(BY SRI. LAKSHMINARASAPPA, ADV. FOR
SRI. A.M.VENKATESH, ADV.)
AND
1. SMT.MEENA DUBAY M.,
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W/O GNANADEV DUBAY M
AGED ABOUT 56 YEARS
R/AT NO.32, RAGHAVA NILAYA
G.M.COTTAGES, DODDABIDRAKALLU
NAGASANDRA POST
BANGALORE-560 073.
2. SRI. ANBUSHAM
S/O D.S.SHAM
MAJOR
R/AT NO.58, RAVI KIRLOSKAR LAYOUT
NAGASANDRA POST
BANGALORE-560 073.
...RESPONDENTS
(BY SRI. SRIPAD V SHASTRI, ADV. FOR R1:
NOTICE TO R2 IS DISPENSED WITH)
THE MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 26.09.2011 PASSED IN MVC NO.6132/2010
ON THE FILE OF THE CHIEF JUDGE COURT OF SMALL
CAUSES AND PRINCIPAL MACT, BANGALORE,
AWARDING A COMPENSATION OF RS.92,302/- WITH
INTEREST @ 6% FROM THE DATE OF PETITION TILL
REALIZATION.
THESE MFAs COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, THIS DAY, H.T.
NARENDRA PRASAD J., DELIVERED THE
FOLLOWING:
JUDGMENT
MFA.No.10473/2012 is filed by the claimant whereas MFA.No.5077/2012 is filed by the Insurance 4 Company under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) being aggrieved by the judgment dated 26.09.2011 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeals briefly stated are that on 27.06.2010, the claimant was proceeding in a car bearing registration No.KA- 04/P-2938 being driven by her daughter, when they reached near ABB Junction, Nelagadaranahalli Road, at about 5.45 p.m., at that time, a car bearing registration No.KA-04/MC-3689, being driven by its driver, at a high speed and in a rash and negligent manner in north-south direction, dashed against the car of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
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3. The claimant filed a petition under Section 166 of the Act on the ground that she was working as teacher in Jindal Public School and getting a salary of Rs.14,200/- per month. It was pleaded that she also 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.1- Insurance Company appeared through its 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. It was further pleaded that the accident was due to rash and negligent driving of the vehicle of the claimant. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the driver of the offending vehicle 6 was not holding valid and effective driving licence as on the date of accident. 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.2 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 herself was examined as PW-1 and Dr.S.Praveen as PW-2 and got exhibited 11 documents namely Ex.P1 to Ex.P11. On the other hand, the respondent neither examined any witness nor got marked any documents on their behalf. 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, 7 the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.92,302/- 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 for the claimant has raised the following contentions.
Firstly, at the time of accident the claimant was working as teacher in Jindal Public School and getting a salary of Rs.14,200/- per month. The Tribunal is not justified in taking monthly income of the claimant as only Rs.3,000/-.
Secondly, due to the accident, claimant has suffered three grievous injuries, she has taken treatment as inpatient for a period of 6 days and she has suffered lot of pain during the treatment. She has examined the doctor, who has deposed that the 8 claimant sustained whole body disability of 8%. She has to suffer with the disability throughout her life. The compensation awarded by the Tribunal under the heads of 'pain & sufferings' and 'loss of amenities' are on the lower side.
Thirdly, compensation awarded by the Tribunal under the heads of 'attendant charges' and 'conveyance expenses' are on the lower side. Hence, he sought for allowing the appeal filed by the claimant in MFA.No.10473/2012 and dismissing the appeal filed by the Insurance Company in MFA.No.5077/2012.
7. On the other hand, learned counsel for the Insurance Company has raised the following counter contentions.
Firstly, even though the claimant has claimed that she was working as teacher in Jindal Public School and getting salary of Rs.14,200/-, but she has not produced any documents to show that she was 9 working as teacher in the said school. The monthly income assessed by the Tribunal as Rs.3,000/- is on the higher side.
Secondly, even though the doctor has assessed disability of 8%, there is no loss of income due to disability. The Tribunal has rightly not granted any compensation under the head of 'loss of income due to disability'.
Thirdly, the claimant was inpatient only for a period of 6 days, the injuries suffered by her are minor in nature. The compensation awarded by the Tribunal under the heads of 'pain & sufferings' and 'loss of amenities' are on the higher side. Hence, he sought for allowing the appeal filed by the Insurance Company in MFA.No.5077/2012 and dismissing the appeal filed by the claimant in MFA.No.10473/2012. 10
8. Heard the learned counsel for the parties. Perused the judgment and award of the claims Tribunal and original records.
9. It is not in dispute that the claimant suffered injuries in a road traffic accident occurred on 27.06.2010 due to rash and negligent driving of the offending vehicle by its driver. Due to the accident, the claimant has suffered the following injuries.
1. Contusion over the right side of the neck 3 cm x 2 cm,
2. Contusion over the right and left side of chest 5 cm x 4 cm,
3. Contusion of the right knee joint 3 cm x 4 cm.
X ray showed fracture of IV, V, VI and VII right side and III and IV left side ribs.
The claimant has examined Dr.S.Praveen as PW.2, who issued wound certificate, has deposed that the claimant has suffered whole body disability of 8% and she was inpatient for a period of 6 days. Even 11 though the claimant has claimed that she was working as teacher and getting salary of Rs.14,200/-, but she has not produced any documents to establish the same. Under this circumstance, 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 2010, the notional income has to be taken at Rs.5,500/- per month. Accordingly, monthly income of the claimant is considered as Rs.5,500/-.
The Tribunal considering the evidence of the parties and materials available on record has rightly held that there is no loss of income due to disability.
Considering the evidence of the doctor and evidence of the parties, the claimant is entitled for compensation of Rs.16,500/- (Rs.5,500*3 months) under the head 'loss of income during laid up period'. 12
Due to the accident, the claimant has suffered the above said injuries. She has examined Dr.S.Praveen as PW.2, who has deposed that the claimant has suffered whole body disability of 8%, she has to suffer with the disability and unhappiness throughout her life. Therefore, the compensation awarded under the head of 'loss of amenities has to be enhanced from Rs.15,000/- to Rs.40,000/-. The claimant was inpatient for a period of 6 days. Therefore, the compensation awarded under the heads of 'attendant charges' and 'conveyance' have to be enhanced from Rs.6,000/- to Rs.10,000/- and Rs.2,000/- to Rs.10,000/- respectively.
The compensation awarded by the Tribunal under other heads are just and reasonable.
10. Thus, the claimant is entitled to the following compensation:
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As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 40,000 40,000 Medical expenses 23,302 23,302 Attendant charges 6,000 10,000 Loss of income during 6,000 16,500 laid up period Conveyance 2,000 10,000 Loss of 15,000 40,000 amenities/inconvenience Total 92,302 1,39,802 The claimant is entitled to a total compensation of Rs.1,39,802/-.
The Insurance Company is directed to deposit the compensation amount along with interest within a period of four weeks from the date of receipt of copy of this judgment.
Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. 14
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
The amount in deposit before this Court is ordered to be transferred to the claims Tribunal.
Accordingly, the appeals are disposed of.
Sd/-
JUDGE Mkm/-