Karnataka High Court

Smt Mahanthamma vs The National Insurance Co Ltd on 16 December, 2021

Bench: H T Prasad

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF DECEMBER 2021

                            BEFORE

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

                 MFA No.3811 OF 2018(MV)

BETWEEN:

Smt. Mahanthamma,
W/o Hanumantharaju,
Aged about 32 years,
R/o Thamatakallu Village,
Chitradurga taluk
And District-577501.

Represented by Guardian
Her husband
Sri. Hanumantharaju,
S/o late Thippeswamy,
Aged about 42 years,
R/o Thamatakallu Village
Chitradurga taluk
And district-577501.                      ... Appellant

(By Sri. V.B. Sidaramaiah, Advocate)

AND:

1.     The National Insurance Co. Ltd.,
       Maganur Commercial Complex,
       P.B.Road, Chitradurga-577501
       Represented by its
       Branch Manager.
                             2



2.   Sri. D.A.Giridhar,
     S/o Anjaneya,
     Major,
     R/o Bommenahalli Village,
     Hireguntanur Hobli,
     Chitradurga Taluk
     And District-577501              ... Respondents

(By Sri. E.I. Sanmathi, Advocate for R1:
 Notice to R2 is D/W v/o dated: 25.2.2019)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:14.11.2017 passed
in MVC No.1100/2016 on the file of the Prl. Senior Civil
Judge and Chief Judicial Magistrate, Chitradurga, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.

      This MFA, coming on for orders, this day, this 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 14.11.2017 passed

by the Motor Accident Claims Tribunal, Chitradurga in

MVC No.1100/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 04.01.2016 at about 4.00

p.m., the claimant was proceeding on his motorcycle

bearing registration No.KA-16/S-9583 as a pillion rider

from Bheemasamudra to Chitradurga. When they

reached near Echalanagenahalli road, in front of

District Khadi Co-operative Society, at that time, the

rider of the motorcycle rode the same at a high speed

and in a rash and negligent manner, due to which the

motorcycle turned turtle. 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 Nos.1

and 2 appeared through counsel and respondent No.2

filed written statement in which the averments made

in the petition were denied. The age, avocation and

income of the claimant and the medical expenses are

denied. It was pleaded that the accident was due to

the rash and negligent riding of the vehicle by the

rider of the motorcycle. It was further pleaded that

the driver of the offending vehicle did not have valid

driving licence as on the date of the accident. It was

further pleaded that the liability is subject to terms

and conditions of the policy. It was further pleaded

that the quantum of compensation claimed by the

claimant is exorbitant. Hence, he sought for dismissal

of the petition.

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.Kiran Acharya as PW-2 and

got exhibited documents namely Ex.P1 to Ex.P34. On

behalf of the respondents, no witness was examined

but got exhibited documents namely Ex.R1 to Ex.R3.

The Claims Tribunal, by the impugned judgment, inter

alia, held that the accident took place on account of

rash and negligent riding 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.4,40.500/- along with

interest at the rate of 9% 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 coolie work along with the work of

Ashakaryakarte and earning Rs.15,000/- per month,

but the Tribunal has taken the notional income as only

Rs.8,000/- per month.

Secondly, at the time of the accident the

claimant was aged about 30 years, she has suffered

grievous injuries, she has examined the doctor, the

doctor has assessed permanent psychological

disability at 30% and physical disability at 30%,

totally 60% permanent disability, but the Tribunal has

assessed the whole body disability as 18% which is on

the lower side. Due to psychological disability she is

unable to do her day today work. Therefore, the whole

body disability assessed by the Tribunal has to be

enhanced.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. She was treated as

inpatient for a period of 12 days. Even after discharge

from the hospital, she was not in a position to

discharge his 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 sufferings' and

other incidental heads are on the lower side. Hence,

he sought for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised the following

contentions:

Firstly, even though the claimant claims that she

was earning Rs.15,000/- per month, she has not

produced any documents to establish his income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Secondly, even though the doctor has assessed

the disability at 60% since the claimant in her cross-

examination has admitted that she can do work on her

own without any help, therefore, considering the

injuries suffered by the claimant and considering the

evidence of the doctor the Tribunal has rightly

assessed the whole body disability as 18%.

Thirdly, due to the accident the injuries suffered

by the claimant are minor in nature, she was inpatient

for only 12 days. Considering the injuries suffered by

the claimant and considering the age and avocation,

the compensation awarded by the Tribunal for 'pain

and sufferings', 'loss of amenities' and other incidental

expenses is just and reasonable.

Fourthly, in view of the Division Bench decision

of this Court in the case of MS.JOYEETA BOSE AND

OTHERS vs. VENKATESHAN.V AND OTHERS (MFA

5896/2018 and connected matters disposed of

on 24.8.2020), the interest granted by the Tribunal

at the rate of 9% p.a. is on the higher side and the

same has to be reduced to 6% p.a. Hence, he sought

for dismissal of the appeal.

8. Heard the learned counsel for the parties.

Perused the judgment and award.

9. It is not in dispute that the claimant

suffered injuries in the accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

The claimant has not produced any evidence

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 2016, the notional income has to be taken at

Rs.9,500/- p.m.

Due to the accident the claimant has suffered

abrasion over right shoulder and right parietal extra

dural hemorrhage. The claimant was inpatient for 12

days. PW-2, the doctor has stated in his evidence

that the claimant has suffered psychological disability

of 30% and physical disability of 30%, totally she has

suffered 60% disability. Since she has suffered

psychological disability to the extent of 30% she is

unable to do her day today work. Therefore, taking

into consideration the deposition of the doctor, PW-2

and injuries suffered by the claimant, the whole body

disability is taken at 30%. Considering the materials

available on record the Tribunal has rightly held that

at the time of the accident the claimant was aged

about 35 years and the multiplier applicable to her

age group is '16'. Thus, the claimant is entitled for

compensation of Rs.5,47,200/- (Rs.9,500*12*16*

30%) on account of 'loss of future income'.

Due to the accident, the claimant has suffered

grievous injuries, she has suffered lot of pain during

treatment and she has to suffer with the disability and

unhappiness throughout her life. Considering the

same, I am inclined to enhance the compensation

awarded by the Tribunal under the head of 'pain and

sufferings' from Rs.25,000/- to Rs.45,000/-, 'loss of

amenities' from Rs.25,000/- to Rs.35,000/- and 'loss

of income during laid-up period' for three months, i..e,

Rs.28,500/- (Rs.9,500*3).

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 25,000 40,000 Medical expenses 93,479 93,479 Food, nourishment, 6,000 6,000 conveyance and attendant charges Loss of income during 24,000 28,500 laid up period Loss of amenities 25,000 35,000 Loss of future income 2,41,920 5,47,200 Future medical expenses 25,000 25,000 Total 4,40,399 7,75,179

The claimant is entitled to a total compensation

of Rs.7,75,179/-.

The Insurance Company is directed to deposit

the compensation amount along with interest 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 enhanced

compensation carries interest @ 6% p.a.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

Accordingly, the appeal is allowed in part.

The Tribunal is directed to release the enhanced