Karnataka High Court
Nikhitha K vs Bharathi Axa General Ins Co Ltd on 1 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:24611
MFA No. 6089 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. 6089 OF 2021 (MV-I)
BETWEEN:
NIKHITHA K
D/O LATE KESHAVAPPA K,
NOW AGED ABOUT 23 YEARS,
R/AT 2ND CROSS, GANGAMMA GUDI ROAD,
NEAR SRM TUITIONS, M V EXTENSION,
HOSAKOTE - 562 114.
NOTE: THE APPELLANT SUSTAINED SEVERE HEAD
INJURY HENCE REPRESENTED BY HER MOTHER
SMT. RUKMINI AS GUARDIAN)
...APPELLANT
(BY SRI. RANGEGOWDA N R., ADVOCATE)
AND:
1. BHARATHI AXA GENERAL INS CO LTD.,
IST FLOOR, FERNS ICON,
SURVEY NO.28, DODDANEKKUNDI,
Digitally signed by MARATHAHALLI RING ROAD,
VEDAVATHI A K
Location: High
BANGALORE - 560 037.
Court of Karnataka
2. D. MOHANLAL
S/O DEVARAM,
AGED MAJOR,
SRI. KRISHNA SALES CORPORATION,
NO.30, 2ND CROSS, KANAKA NAGAR,
KEMPANNA GARDEN, PATTEGARPALYA,
BANGALORE - 560 072.
...RESPONDENTS
(BY SRI. PRADEEP B., ADVOCATE FOR R1;
VIDE ORDER DATED:6/7/2023, NOTICE TO R2 IS
DISPENSED WITH)
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NC: 2024:KHC:24611
MFA No. 6089 of 2021
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED.21.09.2021 PASSED IN MVC NO.4560/2017 ON
THE FILE OF THE II ADDITIONAL JUDGE, ACMM, COURT OF
SMALL CAUSES, BENGALURU, (SCCH-13), PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is posted for Admission, with the consent of the learned counsel for the parties, the same is taken up for final disposal.
2. This appeal is filed by the claimant under Section 173 (1) of the Motor Vehicles Act, 1988, against the judgment and award passed by II Additional Judge, ACMM, Court of Small Causes, Bangalore, dated 21.09.2021 in M.V.C.No.4560/2017, seeking enhancement of compensation.
3. Heard the arguments of the learned counsel for the appellant and learned counsel for the respondent No.1- insurance company.
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4. The appellant herein was the petitioner and respondent No.1-insurance company was respondent No.1 before the Tribunal. The rank of the parties before the Tribunal is retained for the sake of convenience.
5. The case of the petitioner is that she filed the claim petition under Section 161 of MV Act claiming compensation of Rs.25 lakhs for the injuries sustained by her in a motor accident that occurred on 22.07.2017. On the said date, at about 9.45 a.m., when the petitioner was travelling as a pillion rider on a scooter bearing registration No. KA-53-ES-6898, from Hosakote towards K.R. Puram, after LANCO Tollgate, a Renault Kwid Car bearing registration No.KA-02-MM-5008 came in a high speed and rash and negligent manner and dashed against the scooter, due to which the petitioner sustained injuries to her head, left ankle, and fracture of talus left and other parts of her body and therefore, she was admitted to the hospital. The petitioner was a student at the time of the accident and she was doing a part-time job. It was contended that due to the accident, she cannot squat, cannot climb stairs and walk on slope.
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6. On issuance of summons, the respondent-Insurance Company appeared and filed the statement of objections and denied the accident, occupation, income and injuries sustained by the petitioner.
7. Based upon the pleadings, the Tribunal framed the following issues:
1. Whether the petitioner proves that she had sustained grievous injury in RTA on 22.07.2017 about 9.45 a.m., near LANCO Toll U turn, Kolara-Bengaluru NH-75 Road, Bengaluru District due to rash and negligent driving by the driver of Renault Kwid car bearing No.KA-02-MM-5008?
2. Whether the petitioner proves that he is entitled for the compensation as claimed? If so, to what extent and from whom ?
3. What order or award ?
8. To prove the case, the petitioner herself was examined as P.W.2 and the doctor was examined as P.W.3 and marked the documents as per Exhibits P-1 to P-17. The respondents did not lead any evidence. -5-
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9. After hearing the arguments, the Tribunal answered Issue No.1 in the affirmative and Issue No. 2 partly in the affirmative and granted the global compensation of Rs.1,50,000/- together with interest at 6% p.a. from the date of petition till realisation, which is under challenge in this appeal.
10. Learned counsel for the appellant has contended that the Tribunal has committed an error in not awarding the compensation under the heads of medical expenses, future medical expenses, pain and suffering, loss of amenities and loss of earning capacity, food and nourishment, and it has blindly granted the global compensation of Rs.1,50,000/-, which is not correct.
11. Learned counsel for the respondent-Insurance Company has supported the judgment and award passed by the Tribunal.
12. Having heard the learned counsel appearing for the parties, perused the records.
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13. The accident that occurred on 22.07.2017 at about 9.45 am near Hosakote towards K.R. Puram, after LANCO Tollgate, due to rash and negligent driving of the Kwid car bearing registration No.KA-02-MM-5008, by its driver, is not in dispute.
14. Now the question for consideration is, whether the quantum of compensation granted by the Tribunal is correct or not.
15. The records especially the medical bills provided by the petitioner show that she was admitted in the hospital for 5 days, she got operated, the implants were inserted which were not yet removed. She had produced the bills to prove that she has spent Rs.79,102/- towards the medical expenses. However, the Tribunal has blindly granted the compensation of Rs.1,50,000/- which is not correct. Therefore, the compensation requires to be enhanced. -7-
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16. The petitioner claimed that she suffered restriction in the joint movements of left ankle and she is facing difficulty to squat and climb stairs and walk. She has further claimed that she was admitted in the hospital for 5 days and she had a gun operation and also taken further treatments in various hospitals and the surgery was done and nails were fixed on the ankle. Therefore, the petitioner could have suffered pain and suffering. Therefore, I propose to award Rs.25,000/- towards pain and suffering.
17. The petitioner is said to be working in a private company, earning Rs.8,000/- per month and she has also stated that she is a student. Therefore, the Tribunal has taken Rs.8,000/- per month as her income. The petitioner was admitted in various hospitals for the purpose of treatment and two months may be taken for laid up period. Therefore, Rs.16,000/- (Rs.8,000/- x 2) is granted towards the income during the laid up period.
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18. As regards the medical expenses, the petitioner has incurred Rs.79,102/- as per exhibit 14. Therefore, she is entitled for Rs.79,102/- towards medical expenses.
19. The petitioner got admitted in the hospital for 5 days and she was operated. For that, she might have spent some amount towards food and nourishment, conveyance, attendant charges. Therefore, I Rs.10,000/- towards food and nourishment, conveyance, attendant charges is awarded.
20. In respect of the loss of earning capacity, the doctor- P.W.3 has stated that the petitioner-claimant is suffering the disability of 20% to the limb and 10% to the whole body. As per the evidence of the doctor, she has a restrictions in the joint movement of ankle left and she is also complained of pain and difficulty to squat and to climb stairs and walk on slope. The x-ray produced reveals that the implants were inserted, and therefore, definitely, the there is difficulty for the petitioner in walking and sitting. Therefore, I propose to consider 7% disability to the whole body. It is stated that the petitioner was aged about 19 years as at the time of the accident. For -9- NC: 2024:KHC:24611 MFA No. 6089 of 2021 the said age, the proper multiplier applicable is 18. Thus, taking the monthly income at Rs.8,000/-, disability at 7% and multiplier of '18', the compensation towards loss of future income on account of disability comes to Rs.1,20,963/-.
21. As regards the loss of amenities, as per the doctor, the petitioner is suffering disability and she cannot squat, sit or stand and cannot do her work. Such being the case, I propose to award Rs.10,000/- towards loss of amenities and Rs.20,000/- towards future medical expenses.
22. In all, the petitioner would be entitled for the modified compensation as under:
Sl.
Heads of compensation Amount in Rs.
No.
1 Pain and suffering 25,000-00
2 Loss of income during laid up period 16,000-00
3 Medical expenses 79,102-00
4 Food and nourishment expenses 10,000-00
5 Loss of future income on account of 1,20,963-00
disability
6 Loss of amenities 10,000-00
Future medical expenses 20,000-00
Total 2,81,065-00
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MFA No. 6089 of 2021
23. Accordingly, I proceed to pass the following :
ORDER [i] The appeal filed by the appellant stands allowed in part;
(ii) The impugned judgment and award dated 27.09.2018 passed in MVC No.4560/2017 by the II Additional Judge, ACMM, Court of Small Causes, Bangalore, is hereby modified;
(iii) The claimant would be entitled to a sum of Rs.2,81,065/- as against Rs.1,50,000/- awarded by the Tribunal;
(iv) The respondent insurance company shall pay the enhanced compensation with interest at 6% per annum within a period of 60 days from the date of the receipt of copy of this order;
(v) The interest at 6% per annum would exclude future medical expenses;
(vi) The entire enhanced amount shall be released in favour of the petitioner-claimant, upon proper verification;
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(vi) The entire enhanced amount shall be released in favour of the petitioner-claimant, upon proper verification;
(vi) Registry is directed to return the records to the Tribunal, along with certified copy of this order passed by this Court forthwith;
(vii) Draw award accordingly.
Sd/-
JUDGE CS List No.: 1 Sl No.: 46 CT:SK