Karnataka High Court
Smt.Rathnamma vs Jayakumar D on 1 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:24472
MFA No. 5612 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 5612 OF 2021 (MV-I)
BETWEEN:
SMT.RATHNAMMA
W/O SOMESH,
AGED ABOUT 33 YEARS,
R/AT BOPPANAHALLI VILLAGE,
H. MATAKERE POST, KASABA HOBLI,
H. D. KOTE TALUK - 571 114.
...APPELLANT
(BY SRI. SUMA K., ADVOCATE)
AND:
1. JAYAKUMAR D
S/O BENJAMIN,
R/AT NO.2254/1, GENERAL HOSPITAL CAMPUS QTRS,
H.D. KOTE POST, TOWN AND TALUK - 571 114.
Digitally signed by 2. UNITED INDIA INSURANCE CO. LTD
VEDAVATHI A K DIVISIONAL OFFICE (T P HUB),
Location: High BALLAL CIRCLE, CHAMARAJAPURAM,
Court of Karnataka
MYSURU - 570 004.
...RESPONDENTS
(BY SRI. SYED AKBAR PASHA, ADVOCATE FOR R1;
SRI. K.N. SRINIVASA, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED.13.09.2019 PASSED IN MVC NO.790/2017 ON
THE FILE OF THE PRL. SMALL CAUSES, SENIOR CIVIL JUDGE,
MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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NC: 2024:KHC:24472
MFA No. 5612 of 2021
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/petitioner under Section 173(1) of Motor Vehicles Act, 1988 (for short hereinafter referred to as MV Act) challenging the judgment and award dated 13.09.2019 passed in MVC No.790/2017 passed by the Prl. Small Causes and Senior Civil Judge, MACT, Mysuru (for short hereinafter referred to as 'Tribunal') for seeking enhancement of compensation.
2. Heard the arguments of the learned counsel for the appellant and learned counsel for respondent Nos.2 and 3.
3. The appellant was petitioner and the respondents were respondents before the Trial Court. The status of the parties before the Tribunal is retained for the sake of convenience.
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4. The case of the petitioner is that, the petitioner filed petition for claiming compensation for the injury sustained by her in road traffic accident on 26.09.2016. It is alleged that on 26.09.2016 at about 5.30 p.m., after finishing her ginger cultivating work in Annur Hosahalli village of HD Kote was returning to her village in auto near Ranganna's land, Hebbal Shantipur Village, at that time, the driver of the car bearing registration No.KA-09-N-0484 who driven the car in a rash and negligent manner was coming in high speed and dashed to the auto rickshaw. Due to which she fell down and sustained injury. She was shifted to HD Kote hospital, thereafter Mysuru K.R. Hospital treated as inpatient for long time. She has spent a lot of amount on medical expenses and due to the injury, the right arm became totally disabled and she cannot lift and do any work or any other agricultural work. Therefore, she has lost the income. Hence, she filed claim petition for compensation of Rs.26,45,000/-.
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NC: 2024:KHC:24472 MFA No. 5612 of 2021
5. On receipt of the summons, the respondent No.1, owner of the vehicle appeared and filed statement of objections by denying rash and negligent driving and also denied age, occupation and income of the petitioner and contended that the vehicle was insured with the insurance company and the policy was in force. The insurer/respondent No.2 also taken similar contention and prayed for dismissing the petition.
6. On the basis of pleadings, the tribunal framed the following issues for consideration:
1. Whether the Petitioner proves that on 26.9.2016 at about 5.30 P.M. near Ranganna land of Shantipura village at H.D. Kote Taluk, when she was traveling in auto-rickshaw bearing registration No. KA-45-8734, at that time the driver of car bearing registration No. ΚΑ-09-
N-0484 drove it in a high speed with rash and negligent manner and dashed, due to that she sustained injuries?
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NC: 2024:KHC:24472 MFA No. 5612 of 2021
2. Whether the Petitioner is entitled for compensation? If so, at what rate and from whom?
3. What Order or award?
7. To prove the case, the petitioner herself was examined as P.W.1. and also examined another witness, the Doctor as PW2. They got marked documents from Exs.P1 to P19. The respondents have not lead any evidence. After hearing the arguments, the tribunal answered issue No.1 in affirmative and issue No.2 partly in affirmative. Accordingly, granted compensation of Rs.9,36,000/- at the rate of 6% p.a., interest p.a., which is as under;
1. Towards Medical expenses and Rs.1,04,000-00 nourishment
2. Towards loss of income during laid Rs.42,000-00 up period and rest
3. Towards injury pain and sufferings Rs.1,00,000-00
4. Towards loss of future income Rs.4,89,600-00
5. Towards loss of amenities of life Rs.1,00,000-00
6. Future medical expenses Rs.1,00,000-00 Total Rs.9,35,600-00 Rounded to Rs.9,36,000-00 -6- NC: 2024:KHC:24472 MFA No. 5612 of 2021
8. Being aggrieved by the quantum of compensation, the claimant is before this court.
9. The learned counsel for the petitioner has contended that the tribunal has not properly appreciated the evidence on record and evidence of PW1, especially PW2, the doctors who stated that the right arm of the petitioner was totally disabled, she was unable to do any coolie work. As such it is 100% disability and tribunal considered only 40% against evidence on record. The income was also considered as Rs.6,000/- per month, which is not correct. As per the notional income recognized by the Karnataka State Legal Services Authority, an income of Rs.9,500/- p.m. to be considered for the accidents occurred during 2016. The petitioner also entitled for future prospectus, loss of amenities, loss of food, nourishment etc., but the tribunal awarded only meagre amount. She was admitted to the hospital for -7- NC: 2024:KHC:24472 MFA No. 5612 of 2021 almost 5 months. Therefore, prayed for enhancing the compensation.
10. Per contra, learned counsel for respondents supported the judgment of tribunal and contended that the tribunal in the absence of very documents has rightly considered Rs.6,000/- per month and even the multiplier considered was at 17 for the age group of 34 to 35 years. Therefore, prayed for setting aside the same.
11. Having heard the arguments, perused the records, the point that arises for consideration is;
Whether the tribunal committed error in taking salary at Rs.6,000/- as income and 40% disability, which requires for enhancement, if so, what extent?
12. As regards to the rash and negligent driving of the car of the driver there is no dispute and respondents also not filed any additional evidence. Therefore, only quantum of compensation requires to be considered by this court. The petitioner said to be admitted in the hospital immediately after the accident dated 26.09.2016 -8- NC: 2024:KHC:24472 MFA No. 5612 of 2021 till 29.12.2016, almost more than 3 months. Subsequently, once again admitted to hospital on 10.1.2017 till 20.1.2017 for 11 days. Thereafter on 13.02.2017 till 23.3.2017 once again she was admitted to the hospital for 14 days. On perusal of the same, she was treated in the hospital for almost 5 months as inpatient.
13. The tribunal as regards to the pain and suffering has awarded Rs.1 lakh which is just and proper and no need to enhance.
14. However, regarding loss of income during laid up period and rest, the tribunal has awarded 7 months at the rate of Rs.6,000/- p.m. As per the notional income recognized by the Karnataka State Legal Services Authority, an income of Rs.9,500/- p.m. to be considered for the accidents occurred during 2016. Therefore, taking Rs.6,000/- p.m. for calculation of laid up period is very meagre and hence liable to be enhanced. Hence, Rs.9,500/-p.m., is considered as notional income. If -9- NC: 2024:KHC:24472 MFA No. 5612 of 2021 Rs.9,500/- p.m. is considered, the loss of income for laid up period is as below, Rs.9,500/- p.m. x 7 months is Rs.66,500/- loss of income during the laid up period.
15. The tribunal granted Rs.1,04,000/- towards the medical expenses and nourishment, but the medical expenses itself is Rs.94,000/-. Therefore, Rs.94,000/- medical expenses is retained as it is, but the food, nourishment, attendant charges etc., requires to be considered as the claimant is almost admitted for 5 months as inpatient in the hospital. Therefore, the question of granting of Rs.10,000/- is very meagre. Therefore, considering the facts and circumstances of the case, as she was admitted almost for thrice, she could have spent lot of amount towards the transportation charges, food and nourishment, therefore, I propose to award Rs.30,000/- towards food nourishment, attendant and conveyance charges.
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16. As regards to the future medical expenses, loss of amenities tribunal awarded Rs.1 lakh and the same is retained as it is.
17. As regards to the loss of future income, the tribunal had considered Rs.6,000/- and the same is revised as Rs.9,500/-. The age of the petitioner is stated as 30 years, therefore, the tribunal had considered 17 multiplier. However, the respondent brought to the notice of this court that the age of the injured was 34 to 35 years. Therefore, proper multiplier shall be 16 instead of 17 considered by the tribunal. Learned counsel also contended that disability of the petitioner was 85% stated by the doctor as the right hand was totally paralysed, disfigured and has taken treatment for more than 5 months involving skin grafting, and has undergone plastic surgery etc. However, the petitioner was unable to use her hand and her hand has become totally disabled and she cannot work even the household work in the house. The
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NC: 2024:KHC:24472 MFA No. 5612 of 2021 tribunal taken only 40% disability to the whole body, which is not correct.
18. As regards to the earning capacity of the petitioner totally she cannot do any work on the right hand. Though, the tribunal considered 40 % disability, but the petitioner though she cannot do any physical work through right hand and the doctor has opined 85 % of the disability, as she cannot do any work. Such being the case, reducing the disability to 40% is not correct. The functional disability of the petitioner become totally disabled. The petitioner not adduced any evidence of any of the person, to show she was actually working as coolie in any of the field or examined any employer to prove the contention. Such being the case, taking national income is correct. Therefore, when the disability is 85% of this court also looking to the facts and circumstances of the case has to consider entire 85% as disability of the petitioner for future loss of prospectus.
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19. Though it is stated already held that there is no evidence. However, I propose to take 85% disability for loss of future income.
Rs.9500 x 12 x 16 x 85% = Rs.15,50,400/-
20. As regards to the future medical expenses, the tribunal awarded Rs.1 lakh and the same is retained as it is.
21. The components awarded by this court are as below,
1. Towards Medical expenses and Rs.94,000-00 nourishment
2. Towards Food nourishment etc., Rs.30,000-00
3. Towards loss of income during Rs.66,500-00 laid up period and rest
4. Towards injury pain and Rs.1,00,000-00 suffering
5. Towards loss of future Rs.15,50,400-00 income
6. Towards loss of amenities of life Rs.1,00,000-00
7. Future medical expenses Rs.1,00,000-00 Total Rs.20,40,900-00
23. Accordingly, I pass the following:
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NC: 2024:KHC:24472
MFA No. 5612 of 2021
ORDER
i. The appeal is allowed in part.
ii. The judgment of the tribunal dated 13.09.2019
passed in MVC No.790/2017 passed by the Prl.
Court of Small Causes and Senior Civil Judge, Mysuru, is hereby modified.
iii. The claimant is entitled to a total compensation for a sum of Rs.20,40,900/- at the rate of 6% p.a., instead of Rs.9,35,600/- granted by the tribunal iv. The enhanced compensation amount shall be paid by the respondent-Insurance Company with interest @ 6% per annum, excluding the future medical expenses, within a period of two months from the date of receipt of a copy of this order; v. Out of the total amount, Rs.10 lakhs shall be deposited in the Fixed Deposit in the name of the petitioner for 10 years in any of the Nationalized Bank and the remaining amount with interest shall be released to the petitioner;
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NC: 2024:KHC:24472 MFA No. 5612 of 2021 vi. Registry is directed to return the Trial Court records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay; and vii. Draw award accordingly.
Sd/-
JUDGE AKV_List No.: 1 Sl No.: 39_CT:SK