Karnataka High Court
Smt. Mahadevamma vs Tata Aig General Insurance Company on 26 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:24158
MFA No. 1720 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 1720 OF 2022 (MV-I)
BETWEEN:
SMT. MAHADEVAMMA
W/O VARADARAJU,
AGED ABOUT 41 YEARS,
R/AT NO.433, 6TH CROSS,
PRAGATHIPURA, BANASHANKARI,
BENGALURU - 560 070.
...APPELLANT
(BY SRI. ANANTHARAMA C., ADVOCATE)
AND:
1. TATA AIG GENERAL INSURANCE COMPANY
KHANIJA BHAVAN,
RACE COURSE ROAD, BANGALORE - 560 001.
2. SRI. PAPANNA C
S/O CHINNAPPA,
NO.73, 3RD CROSS, CHOLUR PALYA,
Digitally signed by
VEDAVATHI A K MAGADI ROAD, BANGALORE - 560 023.
Location: High
Court of Karnataka ...RESPONDENTS
(BY SRI. S.V.HEGDE MULKHAND, ADVOCATE FOR R1;
VIDE ORDER DATED:23/1/2024, NOTICE TO R2 IS
DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 27.09.2018 PASSED IN MVC NO.7281/2016
ON THE FILE OF THE MEMBER, MACT, XVI ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, BENGALURU CITY (SCCH-
14), PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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NC: 2024:KHC:24158
MFA No. 1720 of 2022
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant in MVC No.7281/2016 against the judgment and award dated 27.09.2018 passed by the Member, Motor Accident Claims Tribunal XVI Additional Judge, Court of Small Causes, Bangalore, seeking enhancement of compensation.
2. The appellant was the petitioner-claimant and the respondent is the respondent before the Tribunal. The parties to the appeal shall be referred to as per their ranking before the Tribunal.
3. Heard the learned counsels appearing for the parties.
4. The case of the petitioner is that she filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the injuries sustained by her in the road traffic accident that occurred on 27.04.2016 at 5.30 a.m. at T. Bekuppe Village, Kanakapura-Kodihalli Road, Kasaba -3- NC: 2024:KHC:24158 MFA No. 1720 of 2022 Hobli, Kanakapura Taluk, due to the rash and negligent driving of the tempo bearing registration No.KA-41-A-8214. It is alleged by the petitioner that, on the said date, the petitioner being the passenger of the auto rickshaw bearing registration No.KA-03-AA-8423 was going near T. Bekuppe village, Kanakapura-Kodihalli Road, Kasaba Hobli, Kanakapura Taluk. At that time, the driver of Tempo bearing tempo bearing registration No.KA-41-A-8214 came with high speed in rash and negligent manner and dashed against the said auto. As a result of which, the petitioner fell down and sustained grievous injuries. Then she was immediately shifted to KIMS Hospital, V.V. Puram, Bangalore, where she was admitted as inpatient for two months. On examination, it was found that the petitioner sustained elbow dislocation right side, metacarpals of right hand, fracture of right femur, etc. The petitioner has spent Rs.4,00,000/- towards medical expenses. She is permanently disabled and unable to do the physical work as she was doing prior to the accident. Hence, prayed for the grant of compensation.
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NC: 2024:KHC:24158 MFA No. 1720 of 2022
5. In pursuance of notice, respondent No. 1 being the insurer of the tempo, appeared and filed written statement stating that due to rash and negligent driving of the driver of auto rickshaw, the accident had occurred and it was not by the driver of the tempo. Hence, prayed for dismissing the petition.
6. Respondent No. 2 being the insured of the offending vehicle, did not appear before the Tribunal and he was placed ex-parte.
7. On behalf of the petitioner, she herself was examined as P.W.1 and a doctor was examined as P.W.2 and got marked exhibits P.1 to P.11. On the other hand, on behalf of respondents, no witness was examined and no documents were marked.
8. After hearing the arguments of learning counsel for the parties, the Tribunal allowed the appeal in part answering issue Nos.1 and 2 partly in the affirmative and granted compensation of Rs.8,67,700/- along with 7% interest. Being -5- NC: 2024:KHC:24158 MFA No. 1720 of 2022 aggrieved by the same, the claimant is before this Court in this appeal.
9. The learned Counsel for the petitioner has contended that the petitioner was earning Rs.10,000/- per month, but the Tribunal has considered Rs.6,500/- per month as the notional income. The accident was of the year 2016 and therefore, prayed for enhancement in the compensation. The learned Counsel further submitted that regarding disability, the Tribunal has taken only 30%, but the petitioner has suffered disability to the upper limb at 94% and 47% disability to the whole body. But, the Tribunal has reduced the disability, which is not correct. The petitioner is suffering injuries on the right hand and right leg, which have become totally disfunctional. The petitioner cannot lift her hand or leg and the legs have almost become weak. She cannot squat and cannot do her personal work. There is functional disability of 100%. However, the Tribunal has considered 94% towards limb disability and 47% disability towards whole body. Hence, prayed for allowing the appeal and sought for enhancement of compensation. -6-
NC: 2024:KHC:24158 MFA No. 1720 of 2022
10. The learned Counsel for the respondent-insurance company has submitted that the Tribunal has considered the future prospects and therefore, no compensation is granted under the said head. It is contended that there is disability of 95% to the limbs which comes 31% to the whole body, but the Tribunal has taken the disability at 30%, which is correct. Therefore, nothing to be enhanced. Hence, prayed for dismissing the appeal.
11. Having heard the learned counsel appearing for the parties, perused the records.
12. The petitioner-claimant is present before this Court in person and the photographs of the claimant are produced by the learned counsel. The petitioner has become disfigured and she is unable to walk and she cannot even lift her right hand and she cannot attend to her personal work. She also has sustained injuries on the chest, apart from three other fractures on the right leg and hand. Both the upper and right limbs have become disfunctional. Such being the case, taking 30% towards disability by the Tribunal is not correct. Therefore, this Court -7- NC: 2024:KHC:24158 MFA No. 1720 of 2022 assess the disability towards whole body at 40%, which is just and reasonable. The age of the petitioner at the time of accident was 39 years and the accident was occurred during 2016. Therefore, taking Rs.9,500/- towards monthly income would be just and reasonable.
13. Considering the facts of the case and the observations made in the petition, since the petitioner was aged 39 years at the time of the accident and she cannot work or cannot do her personal work and there is partial functional disability and there is loss of income due to disability, I hold 25% disability to be granted towards future prospects. Accordingly, 25% disability towards future prospects is granted. Therefore, the monthly income would come to Rs.11,875 (Rs.9,500 x 25% = 2,375+9500). Therefore, the loss of income due to disability would come to Rs.8,55,000/- (Rs.11,875 x 12 x 15 x 40%).
14. As regards the pain and suffering, the Tribunal has awarded Rs.65,000/-, whereas the injuries sustained by the petitioner is the fracture of upper limb and injuries on the chest -8- NC: 2024:KHC:24158 MFA No. 1720 of 2022 and other parts of the body. Therefore, considering the same and her admission in the hospital for more than two months, this Court awards Rs.1,00,000/-.
15. As regards food and nourishment, the Tribunal has awarded Rs.30,000/-. Having regard to the facts and circumstances of the case, the same is enhanced to Rs.50,000/-.
16. So far as the medical expenses is concerned, the learned counsel for the appellant submitted that there were the medical bills for Rs.40,000/-, which has not been granted by the Tribunal. But, neither the prescription for the medical bills at Sl. No.69 and Sl. No.4 nor the invoices were produced before the Tribunal. Therefore, considering the facts and circumstances of the case, there is no need to award Rs.40,000/- without any evidence. Therefore, grant of compensation of Rs.3,12,700/- by the Tribunal is just and proper.
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NC: 2024:KHC:24158 MFA No. 1720 of 2022
17. In so far as the loss of amenities, the Tribunal has awarded Rs.40,000/-. The petitioner has almost lost right leg and right hand, which has become totally disfunctional. She has to suffer throughout her life and she cannot attend to her personal work. Such being the case, this Court awards Rs.80,000/- towards the loss of amenities.
18. As regards the loss of income during the laid up period, the Tribunal has awarded Rs.39,000/- as compensation. the Tribunal has calculated the income for 3 months and the same is confirmed.
19. As regards the future medical expenses, Rs.30,000/- has been awarded by the Tribunal. The doctor has stated that the petitioner needs surgery for removal of implants, which would cost Rs.50,000/. Such being the case, the amount of Rs.50,000/- is granted towards the future medical expenses.
20. In all, the petitioner is entitled for a modified compensation as tabulated below:
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NC: 2024:KHC:24158
MFA No. 1720 of 2022
Sl. Amount in
No.
Heads of compensation
Rupees
1 Pain and sufferings 1,00,000-00
2 Food and nourishment attendant 50,000-00
charges
3 Medical expenses 3,12,700-00
4 Loss of amenities 80,000-00
5 Loss of future income on account of 8,55,000-00
disability
6 Loss of income during the laid up 39,000-00
period
7 Future medical expenses 50,000-00
Total 14,86,700-00
21. As regards liability, the Tribunal, after considering the evidence on record, has categorically held that there was contributory negligence on both the vehicles and held 85% negligence on the driver of the tempo and 15% negligence on the driver of the auto rickshaw. The claimant while filing the petition has not made the driver or the insurer of the auto rickshaw and only made the driver of the tempo and its insurer as party. The police have filed charge sheet against the driver of the tempo. Therefore, the Tribunal has held that the accident
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NC: 2024:KHC:24158 MFA No. 1720 of 2022 occurred due to contributory negligence on both drivers and therefore, considered the negligence at 15% on the driver of the auto rickshaw. Such being the case, there is no need to fix the entire liability on the driver and owner of the tempo. Therefore, there is no need to interfere on the negligence part considered by the Tribunal.
22. 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 passed by MVC No.7281/2016 against the judgment and award dated 27.09.2018 passed by the Member, Motor Accident Claims Tribunal, XVI Additional Judge, Court of Small Causes, Bangalore, is hereby modified;
(iii) The claimant would be entitled to a sum of Rs.14,86,700/- as against Rs.8,67,700/- awarded by the Tribunal;
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NC: 2024:KHC:24158 MFA No. 1720 of 2022
(iv) Out of the enhanced compensation, 85% of the compensation shall be payable by the respondent insurance company 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 of 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;
(vi) Registry is directed to return the trial Court records to the Tribunal, along with certified copy of this order passed by this Court forthwith without any delay;
(vii) Draw award accordingly.
Sd/-
JUDGE CS List No.: 1 Sl No.: 52 CT:SK