Smt Sudha @ Rekha vs Sri D K Kuberappa
2021 Latest Caselaw 6443 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 18TH DAY OF DECEMBER, 2021

                        BEFORE

        THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA

 MISCELLANEOUS FIRST APPEAL No.7710/2010 (MV-I)


BETWEEN:

SMT. SUDHA @ REKHA
W/O C.E VIRUPAKSHA @ VIRUPAKSHAPPA
AGED AGED ABOUT 25 YEARS
OCC: AT PRESENT NO WORK
R/AT KAREKATTE VILLAGE
KABALLA (AT POST), CHANNAGIRI TALUK
DAVANAGERE DISTRICT.                       ...APPELLANT

(BY SRI VENKATESH R.BHAGAT, ADVOCATE)

AND:

1.    SRI D.K KUBERAPPA, S/O KENCHAPPA
      AGED ABOUT 35 YEARS
      R/AT DAYAMENAHALLI VILLAGE
      DAVANAGERE TALUK AND DISTRICT

2.    UMA MAHESHWARAPPA
      S/O LATE B GURUBASAPPA
      AGED BY MAJOR
      OWNER OF BUS NO.KA 17 A 5931
      R/AT 815/62-63, KALLESHWARA NILAYA
      II MAIN, 4TH CROSS
      SHIVAKUMARA SWAMY BADAVANE
      DAVANAGERE - 577014

3.    THE MANAGER
      THE ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD
      SUNDARAM TOWER, 45 & 46, WHITE ROAD
      CHENNAI - 600014
                           -2-



4.   H.S KUMARASWAMY
     S/O MURUGENDRAIAH
     AGED ABOUT 29 YEARS
     DRIVER OF BUS NO. KA 17 A 4898
     R/AT 1032, 2ND STAGE, SPS NAGAR
     B BLOCK, DAVANAGERE

5.   D RAVI, S/O K.R DORAI RAJAN
     AGED BY MAJOR
     OWNER OF BUS NO. KA 17 A 4898
     R/AT MANJUSHREE NILAYA
     2ND CROSS, 1ST MAIN
     SHIVAKUMARASWAMY BADAVANE
     1ST STAGE, DAVANAGERE - 05

6.   THE DIVISIONAL MANAGER
     THE NEW INDIA ASSURANCE CO LTD.
     DIVISIONAL OFFICE, A.M ARCADE
     2ND FLOOR, NEAR VIDYARTHI BHAVAN
     C.G HOSPITAL ROAD, DAVANAGERE
                                         ....RESPONDENTS
(BY SRI S.T RAJASHEKAR, ADVOCATE FOR R6:
SRI C.R RAVISHANKAR, ADVOCATE R3:
R4 SERVED, UNREPRESENTED:
V/O DATED 5/12/2014 APPEAL AGAINST R1, R2 AND R5
STANDS DISMISSED)
                          ****
      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, PRAYING TO AGAINST THE
JUDGMENT AND AWARD DATED 16.06.2010 PASSED IN MVC
NO.427/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
(SR.DN), MACT, DAVANAGERE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.


     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                                -3-



                         JUDGMENT

The present appeal is filed by the claimant assailing

the judgment and award passed in MVC.No.427/2009

dated 16/06/2010 on the file of the Principal Civil Judge

(Senior Division) & MACT-IV, Davanagere, seeking

enhancement of compensation.

2. It is the claim of the claimant that the accident

occurred on 02/05/2008 near Shiramgondanahalli Village,

Davanagere Taluk in Hadadi Road, at about 2.50 p.m. The

claimant was travelling in a bus bearing registration

No.KA-17/A-4898 along with her son and husband. While

the claimant was travelling in the bus, the said bus was

driven in a rash and negligent manner and dashed to

another bus bearing registration No.KA-17/A-5931 and due

to the said accident, claimant had sustained fracture over

left tibia and also other injuries on the other parts of the

body. The claimant further contended that she was

working as a tailor and also running a private tuition and

getting a monthly income of Rs.6,000/- and due to the

impact of the accidental injuries, sustained permanent

disability due to the fracture of the left tibia and that she is

suffering from pain. Hence, claimant is not in a position to

attend to her tailoring job and under follow up treatment

and she is been advised bed rest. Thus, she sought for

compensation.

3. On service of notice by the Tribunal,

respondent Nos.1, 2, 4 and 5 failed to appear before the

Court and hence, they were placed ex parte.

4. Respondent No.3/the Manager of Royal

Sundaram Alliance Insurance Company Limited and

respondent No.6/Divisional Manager, New India Assurance

Company Limited appeared through their counsel and filed

their written statement. That respondent Nos.3 and 6 have

contended that the vehicle to which they have issued the

policy has not caused the accident and that the accident in

question has taken place due to the rash and negligent

driving of the driver of the bus of which they have not

issued the policy and also contended that the driver of the

other bus is responsible for the accident in question and

hence, sought for dismissal of the petition.

5. On the basis of the rival contentions of the

parties, the Tribunal framed the following issues:

1. Whether the petitioner proves that he sustained grievous injuries due to the rash and negligent driving of the bus bearing Regn.No.KA 17/A 5931 by its driver, respondent No.1 on 2-5-2008 at about 2.50 p.m. on Hadadi Road near Shiramagondanahalli village, Davangere Taluk while she was traveling along with her husband and son from Kabala village, Channagiri Taluk towards Davangere, in the bus bearing Regn.No.KA 17/A 4898 driven by the respondent No.4, who also driving the said vehicle in the above said manner?

2. Whether the petitioner proves that she is earning Rs.6,000/- per month by doing tailoring and private tuition?

3. Whether the respondent No.3 & 6 prove that they are not liable to pay the compensation for the reasons mentioned in their respective objection statements?

4. Whether the petitioner is entitled for compensation? If so, at what rate and from whom?

5. What order or Award?

6. The claimant in order to prove her case,

examined herself as PW.3 and got marked documents at

Exs.P-29 to P-53 and also examined Dr.L.Palakshaiah as

PW.4 to prove her disability and got marked documents

Exs.P-53 to P-55. On behalf of the respondents, no oral

evidence was adduced.

filed a memo dated 17/05/2010 stating that policy was in

force as on the date of the accident admitting the liability

to the extent of 50% each. The Tribunal on the basis of

the evidence and on perusal of material on record and

considering the documentary evidence Exs.P-29 to P-53

awarded a global compensation of Rs.49,000/- with future

interest at 6% per annum from the date of petition till the

date of deposit. Not being satisfied with the compensation

awarded by the Tribunal, the appellant has preferred this

appeal for reassessment of compensation.

8. Heard learned counsel for the parties.

9. Learned counsel for the appellant, Sri

Venkatesh R.Bhagat would contend that the Tribunal was

not justified in awarding a sum of Rs.49,000/- towards the

compensation for the injuries suffered by the appellant in

the road traffic accident, which is not disputed by the

parties. He further contended that the doctor has

assessed the disability at 42% to 45% and she is limping

as her leg was shortened by 1.00 c.m. The MACT has

taken the disability at 10% which is on the lower side. He

further contended that the multiplier applied by the

Tribunal is 17, whereas in view of the decision in Sarla

Verma vs. Delhi Transport Corporation Limited

[(2009)6 SCC 121] (Sarla Verma) the multiplier should

have been 18. It was also contended that the deduction of

1/3rd towards the personal expenses has been deducted as

if it was applied in the case of death ignoring the fact that

the case on hand is an injury case. It is further contended

that the Tribunal has assessed the income of the claimant

at Rs.3,000/- per month ignoring the fact that she was

doing tailoring job and was also taking tuitions and earning

more than Rs.6,000/- per month. Thus, the assessment

arrived at by the Tribunal is on the lower side. He further

contended that the Tribunal erred in awarding only medical

expenses to the tune of Rs.5,418/- and awarding of

compensation under the head loss of amenities, attendant

charges, nursing and pain and suffering and loss of income

during laid up period is much on the lower side. Hence,

learned counsel for the appellant sought for enhancement

of compensation.

10. Per contra, learned counsel for respondent

Nos.3 and 6 would justify the judgment and award passed

by the Tribunal and the same does not call for any

interference by this Court. The appellant/claimant has

examined herself as P.W.3 and the doctor L.Palakshaiah

was examined as PW.4. PW.3 in her evidence has

categorically stated that she was earning around

Rs.6,000/- per month by doing tailoring business and also

by taking tuitions. The Tribunal holding that there are no

documents produced by the appellants in this regard came

to a conclusion that she was earning a sum of Rs.3,000/-

per month.

11. The accident is of the year 2008 and as per the

chart provided by the Karnataka Legal Services Authority,

when there is no proof of income, notional income to be

taken for the accident occurred in the year 2008 is,

Rs.4,500/- to Rs. 5,000/-. Looking into the facts and

circumstances of the case, it is proper to hold that the

claimant was earning a sum of Rs.4,500/- per month.

Insofar as the multiplier applied by the Tribunal is by

ignoring Sarla Verma's case, wherein the multiplier should

have been 18.

12. The injuries suffered by the claimant and as

per the evidence of PW.4, the doctor who has stated that

the disability is 35% to 45% and looking into the disability

certificate and the evidence adduced by the claimant

clearly shows that the assessment of disability to the

extent of 10% is on the lower side and it would be held

- 10 -

that there is disability of 12%. Taking the notional income

at Rs.4,500/- per month, the claimant is entitled for

Rs.4,500/- x 12 x 18 x 12/100 = 1,16,640/- under the

head loss of future income. Insofar as the loss during the

laid up period is concerned, it has assessed only for one

month. then laid up period for three months the claimant

is entitled to Rs.13,500/. Under the conventional head,

pain and suffering, loss of amenities, the Tribunal has not

awarded any compensation. The medical bills submitted

by the claimant before the Tribunal reveals that the

claimant has spent Rs.5,418/-. The veracity of the medical

bills cannot now be disputed, more so, in the light of the

fact that respondent Nos.3 and 6 have not preferred the

appeal. Thus, this Court deems it proper to award a sum

of Rs.5,418/- towards medical expenses as per the bills

produced.

13. Thus, this Court is of the opinion that the

claimant is entitled for compensation on the following

heads:

- 11 -

      Pain and suffering             : Rs. 20,000/-
      Loss of amenities              : Rs. 20,000/-
      Loss of income during the
      laid up period                 : Rs. 13,500/-
      (4,500 x 3)
      Conventional head              : Rs.   5,000/-
      Medical expenses               : Rs.   5,418/-
      Loss of future income

(Rs. 4,500/-x12x18x12/100) : Rs.1,16,640/-

----------------

           TOTAL                 : Rs.1,80,558/-
                                   =========

Thus, the re-assessed compensation is Rs.1,80,558/-

as against the compensation of Rs.49,000/- awarded by

the Tribunal. The claimant is entitled for interest at the

rate of 6% per annum.

14. In the result, the appeal filed by the appellant

is allowed in part.

15. Respondent Nos. 3 and 6 are liable to pay the

compensation amount to the extent of 50% each with

proportionate interest.

- 12 -

16. Respondent Nos.3 and 6 shall deposit the re-

assessed compensation amount before the Tribunal within

a period of four weeks from the date of receipt of this

order.

Parties to bear their respective costs.

Sd/-

JUDGE S* CT:GD