IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
M.F.A.No.5602/2019 (MV)
BETWEEN :
SMT.THRISHA KIRAN
W/O SRI DINESH POOJARY
AGED ABOUT 39 YEARS,
R/AT 2-98-B, VENJARAKATTE,
BOLA VILLAGE, KARKALA TALUK - 575213 ...APPELLANT
(BY SRI DHANANJAY KUMAR, ADV.)
AND :
1. SRI M.K.RATHNAKAR
S/O SRI A.B.KABAYYA
AGED ABOUT 60 YEARS
R/AT 'SARALA', DANASHALA ROAD,
KARKALA KASABA VILLAGE,
KARKALA TALUK - 575213
2. THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD.,
MOODABIDRI BRANCH,
1ST FLOOR, NITHYANANDA COMPLEX,
NEAR BUS STAND, MOODABIDRI
MANGALORE TALUK - 575001 ...RESPONDENTS
(BY SRI B.C.SEETHARAMA RAO, ADV. FOR R-2; R-1 SERVED.)
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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
29.11.2018 PASSED IN MVC No.643/2018 ON THE FILE OF THE
SENIOR CIVIL JUDGE & AMACT, KARKALA, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and award dated 29.11.2018 passed in MVC No.643/2018 on the file of the Sr. Civil Judge & AMACT, Karkala [Tribunal for short].
2. The claimant instituted the petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the injuries sustained by her in the road traffic accident.
3. It was averred in the claim petition that while the claimant was proceeding on her two wheeler bearing Reg.No.KA-19-EM-3255 from Thodar towards Bola village, in front of Hotel New Padival, Marpady -3- village, Mangalore Taluk, one stage carriage Bus bearing Reg.No.KA-20-B-9949 (offending vehicle) came in a rash and negligent manner in a high speed and dashed against the claimant, as a result, she fell down and sustained serious injuries. Immediately, she was shifted to Alva's Health Centre, Moodabidri and thereafter to First Neuro Brain and Spine Superspeciality Hospital, Padil, Mangalore wherein she was hospitalized. She took treatment as an inpatient from 28.12.2017 to 29.12.2017 and has incurred huge medical expenses. She was earning Rs.15,000/- per month. Owing to the injuries sustained by her, she is not in a position to do her work as a canteen employee which she was doing prior to the accident.
4. In pursuant to the service of notice, respondent No.1 the owner of the offending vehicle remained absent and was placed exparte. The insurer appeared and contested the claim. Written statement -4- was filed denying the petition averments. Admitting the coverage of the policy it was contended that the 1st respondent has violated the policy conditions. It was contended that the driver of the offending vehicle had no valid and effective driving licence at the time of the accident. On these grounds, learned counsel sought for dismissal of the petition.
5. On the basis of the pleadings, issues were framed and answered allowing the petition in part awarding total compensation of Rs.6,73,460/- with interest @ 8% p.a. on Rs.5,73,460/- from the date of petition till realization.
6. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant has filed the present appeal.
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7. Learned counsel for the appellant/claimant submitted that the claimant has sustained grievous injuries. As per the wound certificate issued by Atharva Ortho Care Surathkal, the claimant has sustained the following injures:
"Contusion on left shoulder with x-ray No.10630 showing fracture of clavicle, contusion on the left buttock with back pain with CT scan showing fracture dislocation of 11th and 12th thoracle vertebra with fracture of transverse process of first lumber vertebra fracture with paraparessi (paralysis of both lower limbs) which are grievous in nature, abrasion on the right knee abrasion on back of right shoulder which are simple in nature."
8. Dr.Ullas Shetty who was examined as PW-2 has assessed the disability to an extent of 20% with respect to spine. However, the Tribunal has assessed the disability at 8% to the whole body. The income determined by the Tribunal at Rs.9,000/- per month is not correct. It was further argued that the compensation -6- awarded under different heads is on the lower side and the same requires to be enhanced substantially.
9. Learned counsel for the insurer submitted that the Tribunal after analyzing the oral and documentary evidence has rightly awarded the compensation and there is no scope for further enhancement and accordingly sought for dismissal of the appeal.
10. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the original records.
11. The factum of accident and injuries sustained by the claimant in the accident in question are not in dispute. PW-2 Dr.Ullas Shetty has assessed the disability to the spine at 20%. Accordingly, the Tribunal has determined the disability at 8% to the whole body which in our opinion does not suffer from -7- any infirmity. However, the monthly income determined by the Tribunal at Rs.9,000/- seems to be on the lower side. In terms of the chart prepared by the Karnataka State Legal Services Authority, it would be safe to re-determine the monthly income at Rs.11,000/- . Applying the multiplier of 15, the loss of future income due to disability would be Rs.1,58,400/-(Rs.11000 x 12 x 15 x 8%).
12. The claimant was hospitalized for a period of 15 days and has undergone surgery, as such we deem it appropriate to award Rs.1,00,000/- towards pain and agony. In all other respects, the compensation awarded by the Tribunal being just and reasonable, on re-appreciation of oral and documentary evidence, we confirm the same. Hence the compensation is re- determined as under:
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Sl.No. Particulars Amount [in Rs.]
1. Pain and agony 1,00,000
2. Loss of amenities of life 50,000
Rest, nourishment and
3. 40,000
attendant charges
1,85,360
4. Medical expenses
Loss of income during laid up
5. 58,500
period
6. Conveyance 30,000
7. Future medical expenses 1,00,000
8. Loss of future income 1,58,400
Total 7,22,260
Total compensation awarded by the Tribunal is
modified and enhanced to Rs.7,22,260/- as against Rs.6,73,460/- which shall carry interest @ 6% p.a. on the enhanced compensation from the date of the petition till its realization.
13. Hence, the following:
ORDER
i) The appeal is allowed in part.
ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.7,22,260/- (Rupees Seven Lakhs Twenty Two Thousand Two -9- Hundred and Sixty only) as against Rs.6,73,460/- with interest at the rate of 6% per annum on the enhanced compensation from the date of the claim petition till its realization.
iii) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.
iv) The portion of the order of the Tribunal inasmuch as liability and disbursement remains intact.
v) The modified compensation amount shall be disbursed in terms of the order of the Tribunal.
vi) Draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE Dvr: