Smt. Chandramma vs N.M.Taslim Shiraz
2021 Latest Caselaw 5657 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 7TH DAY OF DECEMBER 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

              MFA No.7206 OF 2017(MV)
BETWEEN:

SMT. CHANDRAMMA
S/O ANNAYAPPA
AGED ABOUT 39 YEARS
R/AT KONDLIGATTA VILLAGE
TIPTUR TALUK, TUMKUR DIST
NOW R/AT CHIKKAJAJUR VILLAGE
HOLALKERE TALUK
CHITRADURGA DIST-577526.
                                          ...APPELLANT
(BY SRI.S C MANJUNATHA, ADV.)

AND

1.    N.M.TASLIM SHIRAZ
      S/O N M MOHAMMED KALEEM
      AGE MAJOR
      THANNIRUHALLA VILLAGE
      HASSAN-573201.

2.    THE DIVISIONAL MANAGER
      NEW INDIA ASSURANCE CO LTD.,
      A.M.ARCADE, NEAR VIDYARTHI BHAVAN
      C.G.HOSPITAL ROAD
      DAVANAGERE-577002.
                                      ...RESPONDENTS
(BY SRI.M.P.SRIKANTH, ADV. FOR R2:
    R1 IS SERVED)
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     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:16.05.2017 PASSED
IN MVC NO.512/2016 ON THE FILE OF THE SENIOR CIVIL
JUDGE & MACT, HOLALKERE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.


     THIS MFA COMING ON FOR ORDERS, 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 16.05.2017 passed

by the Motor Accident Claims Tribunal, Holalkere in

MVC No.512/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 05.08.2015 at about 04.30

P.M. the claimant along with her son were traveling as

a pillion rider on the Honda Dream Motorcycle bearing

registration No.KA-44/L-6410 and her son-Pradeepa

was riding the said motorcycle. On NH-206, near

Karadikodi Village, Tiptur Taluk, the driver of the

Mahindra Bolero Vehicle bearing registration No.KA-

13/B-5920 drove the same in a rash and negligent

manner and dashed against the back side of the

motorcycle. As a result of the aforesaid accident, the

claimant sustained grievous injuries and was

hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that she spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondent No.2

appeared through counsel and 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 rider of the motorcycle. The driver of the

offending vehicle did not have valid driving licence as

on the date of the accident. The liability is subject to

terms and conditions of the policy. 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. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1 and Dr.Nagabhushana D.M. was

examined as PW-3 and got exhibited documents

namely Ex.P.1 to Ex.P.13. On behalf of the

respondents, no witness was examined but exhibited a

document namely Ex.R.1-Copy of the Insurance

Policy. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place

on account of rash and negligent driving of the

offending vehicle by its driver, as a result of which,

the claimant sustained injuries. The Tribunal further

held that the claimant is entitled to a compensation of

Rs.3,25,000/- along with interest at the rate of 6%

p.a. and directed the Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. The learned counsel for the claimant has

raised the following contentions:

Firstly, even though the claimant claims that she

was doing agricultural work and business and earning

Rs.20,000/- per month, but the Tribunal has taken the

notional income as merely as Rs.6,000/- per month.

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered permanent

disability of 35%. But the Tribunal has erred in taking

the whole body disability at 10% is on lower side.

Lastly, due to the accident, the claimant has

sustained grievous injuries. She was treated as

inpatient for a period of 36 days. Even after discharge

from the hospital, she was not in a position to

discharge her regular work. She has suffered lot of

pain during treatment. Considering the same, the

compensation granted by the Tribunal under the

heads of 'loss of amenities', 'pain and suffering' and

other heads are on the lower side. Hence, he sought

for enhancement of compensation.

7. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Firstly, even though the claimant claims that she

was earning Rs.20,000/- per month, she has not

produced any documents to establish her income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered permanent

disability of 35% to particular limb, but he has not

assessed whole body disability. Since the fractures are

reunited, the Tribunal considering the injuries

sustained by the claimant, has rightly assessed the

whole body disability at 10%.

Thirdly, the injuries suffered by the claimant are

minor in nature. Considering the oral and

documentary evidence, the Tribunal has granted just

and reasonable compensation and it does not call for

interference. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent driving of the offending

vehicle by its driver.

The claimant has not produced any documents

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 2015, the notional income has to be taken at

Rs.9,000/- p.m.

As per wound certificate, the claimant has

sustained fracture of left femur and left thigh-

compartment syndrome (swelling). PW-3, the doctor

has stated in his evidence that the claimant has

suffered permanent disability of 35% and he has not

assessed the whole body disability. Since the fractures

are reunited, the Tribunal taking into consideration the

deposition of the doctor, PW-3 and injuries mentioned

in the wound certificate, has rightly assessed the

whole body disability at 10%. The claimant is aged

about 42 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.1,51,200/- (Rs.9,000*12*14*10%) on account of

'loss of future income'.

The nature of injuries suggests that the claimant

must have been under rest and treatment for a period

of 3 months. Therefore, the claimant is entitled for

compensation of Rs.27,000/- (Rs.9,000*3 months)

under the head 'loss of income during laid up period'.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. She

was treated as inpatient for more than 36 days in the

hospital. 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, I am

inclined to enhance the compensation awarded by the

Tribunal under the head of 'loss of amenities' from

Rs.30,000/- to Rs.40,000/-.

The compensation awarded by the Tribunal

under other heads is just and reasonable.

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 70,000 70,000 Medical expenses 90,000 90,000 Food, nourishment, 22,000 22,000 conveyance and attendant charges Loss of income during 12,000 27,000 laid up period Loss of amenities 30,000 40,000 Loss of future income 1,00,800 1,51,200 Total 3,24,800 4,00,200 ** The compensation awarded by the Tribunal Rs.3,24,800/- has been rounded off to Rs.3,25,000/-

11. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.4,00,200/-.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 6%

p.a. from the date of filing of the claim petition till the

date of realization, within a period of six weeks from

the date of receipt of copy of this judgment.

The Tribunal is directed to release the enhanced

compensation in favour of the claimant after due

verification.

Sd/-

JUDGE

HA/-