1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.10212 OF 2013(MV)
BETWEEN:
SMT. SUDHA
W/O B.N. BALAKRISHNA
AGED ABOUT 42 YEARS
R/O NO.13, 8TH CROSS
MANDYA CITY-571401.
... APPELLANT
(BY SRI. RAJA L., ADV. )
AND
1. ERAPPA H.E.
S/O GUJJEGOWDA
R.O NO.37/1, HITTANAHALLI VILLAGE
KIRAGAVALU HOBLI
MALAVALLI TALUK-571430.
2. THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD,
1ST FLOOR NO.1576, V. V. ROAD
MANDYA-571401.
... RESPONDENTS
(BY SRI.K.SRIDHARA, ADV. FOR R2)
2
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:13.12.2012 PASSED IN MVC NO.217/2011 ON
THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE,
CJM, MACT, MANDYA PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimant being aggrieved by the judgment dated: 13.12.2012 passed by the Motor Accident Claims Tribunal.
With the consent of the learned counsel for the parties, the appeal is taken up for final disposal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 07.02.2011, the claimant was proceeding on motorcycle bearing registration No.KA-11/V-1944 for the purpose of booking the gas, 3 at about 1.30 pm and after booking the gas at Gurubarath Gas shop, the claimant was riding the motorcycle and going on Mysore-Bangalore road in front of Bangalore road from KEB office side towards northern side, at that time, Honda Active bearing No.KA11/R 2585 came from Mysore side in a rash and negligent manner and dashed against the claimant and claimant fell down and sustained injuries. After the accident, the claimant was taken to District hospital, Mandya and the claimant was admitted as inpatient for 10 days.
3. The claimant filed a petition under Section 166 of the Act on the ground that she is owning milking cows and doing milk vending business housewife and from all sources she used to earn Rs.5000/-per month. The claimant is the only earning member in the family and the entire family members depending upon the income of the claimant for their 4 livelihood. 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 riding of the offending vehicle by its rider.
4. On service of notice, the respondent No.2 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 the rash and negligent riding of the vehicle by the claimant herself. 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
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 got exhibited documents Ex.P- 1 to P-22 and Dr.Sharan Srinivasan was examined through court commission as CW-1 and got exhibited documents namely Ex.C1 to Ex.C6. On behalf of the respondents, neither any witness was examined nor any document was produced. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the offending vehicle by its rider, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.1,76,000/- along with interest at the rate of 9% p.a. and directed the Insurance Company to deposit the compensation amount along 6 with interest. Being aggrieved, this appeal has been filed.
6. The learned counsel for the claimant submitted that the claimant was aged about 41 years and doing milk vending business. The income assessed by the Tribunal at Rs.5,000/- p.m. is on the lower side. Even as per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken place in the year 2011, the notional income has to be taken at Rs.6,500/- p.m. Secondly, CW-1, the doctor has stated in his evidence that the claimant has suffered disability of 32.22% to whole body. But the Tribunal has erred in taking the whole body disability at only 15%.
Thirdly, due to the accident, the claimant has sustained injury to head, right hand, both legs and all over the body. She was treated as inpatient for a period of 10 days. Even after discharge from the 7 hospital, she was not in a position to discharge his regular work. She has suffered lot of pain during treatment. The Tribunal has not granted any compensation under the head of 'loss of amenities'. Further, the compensation granted by the Tribunal under the heads of 'pain and sufferings' and other heads are on the lower side. Hence, he sought for allowing the appeal.
7. On the other hand, the learned counsel for the Insurance Company has contended that CW-1, the doctor has stated in his evidence that the claimant has suffered disability of 32.22% to whole body. But the Tribunal considering the injuries sustained by the claimant, has rightly assessed the whole body disability at 15%.
Secondly, considering the oral and documentary evidence, the Tribunal has granted just and reasonable compensation and it does not call for 8 interference. Hence, he sought dismissal of the appeal.
8. Heard the learned counsel for the parties and perused the records.
9. It is not in dispute that the accident has occurred due to rash and negligent riding of the offending vehicle by its rider.
The claimant has not produced any evidence with regard to her 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 2011, the notional income has to be taken at Rs.6,500/- p.m. As per wound certificate, the claimant has sustained grievous injuries. CW-1, the doctor has stated in his evidence that the claimant has suffered 9 disability of 32.22% to whole body. The Tribunal considering the injuries sustained by the claimant and wound certificate, has rightly assessed the whole body disability at 15%. The claimant is aged about 41 years at the time of the accident and multiplier applicable to her age group is '14'. Thus, the claimant is entitled for compensation of Rs.1,63,800/- (Rs.6,500*12* 14*15%) on account of 'loss of future income'.
As per wound certificate, the claimant has sustained tenderness over right elbow joint, over left side of face and head, left thigh posteriorly, diffuse tenderness over abdomen. She has suffered lot of pain during treatment and she has to suffer with the disability stated by the doctor throughout her life. Considering the same, a sum of Rs.20,000/- is awarded under the head of 'loss of amenities'. Further, I am inclined to enhance the compensation 10 awarded by the Tribunal under the head of 'loss of amenities' from Rs.20,000/- to Rs.40,000/-.
The compensation awarded by the Tribunal under other heads remains unaltered.
10. Thus, the claimant is entitled to the following compensation:
As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 20,000 40,000 Medical expenses 20,000 20,000 Food, nourishment, 10,000 10,000 conveyance and attendant charges Loss of amenities 0 20,000 Loss of future income 126,000 163,800 Total 176,000 253,800 The claimant is entitled to a total compensation of Rs.2,53,800/-.
The Insurance Company is directed to deposit the compensation amount along with interest at 9% 11 p.a. within a period of four weeks from the date of receipt of copy of this judgment.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE DM