Karnataka High Court

Smt A B Sumitramma @ Sumitra vs H G Chandramouli on 5 January, 2021

Author: H T Prasad

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 5TH DAY OF JANUARY 2021

                          BEFORE

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

                  MFA No.1 OF 2015(MV)
                          C/W.
                 MFA No.2994 OF 2015(MV)

IN MFA No.1/2015:

BETWEEN:

Smt. A.B.Sumitramma @ Sumitra,
W/o K.P.Thippeswamy,
Aged about 27 years,
Resident of Bachha Boranahatti,
Chitradurga Taluk & District.
                                                   ... Appellant

(By Sri. Siddeshwara N.K., Advocate)

AND:

1.     H.G.Chandramouli,
       Major, R/o Church Road,
       Kelagote, Chitradurga City & District.

2.     The Divisional Manager,
       Royal Sundaram Insurance Co. Ltd.,
       Divisional Office, Maangalya Punarbhav,
       II Floor, No.132, Brigade Road,
       Bangalore.

                                                ... Respondents
(By Sri.Ravi S Samprathi, Advocate for R2:
Notice to R1 is dispensed with )
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      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 20.09.2014
passed in MVC No. 433/2013 on the file of the Principal
Senior Civil Judge, CJM. MACT-3, Chitradurga, awarding
compensation of Rs.17,91,480/- with interest @ 6% p.a.
from the date of petition till the date of deposit.

IN MFA No.2994/2015:

BETWEEN:

Royal Sundaram Insurance Co. Ltd.,
Divisional Office, Maangalya Punarbhav,
II Floor, No.132, Brigade Road,
Bangalore-560025
Rep. by its Divisional Manager.
                                               ... Appellant
(By Sri. Ravi S Samprathi, Advocate)

AND

1.    Smt. A.B.Sumitramma @ Sumitra,
      W/o Sri. K.P.Thippeswamy,
      Aged about 28 years,
      R/o Bachha Boranahatti,
      Chitradurga Taluk & District-577501.

2.    Sri. H.G.Chandramouli,
      Major, R/o Church Road,
      Kelagote, Chitradurga Town-577501.
                                             ...Respondents
(By Sri. N.K.Siddeswara, Advocate for R1:
Notice to R2 is dispensed with)

      This MFA is filed under Section 173(1) of MV Act
against the Judgment and award dated: 20.09.2014
passed in MVC No.433/2013 on the file of the Principal
Senior Civil Judge, CJM, MACT-3, Chitradurga, partly
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allowing the claim petition for compensation and seeking
enhancement of compensation.

      These MFAs, coming on for admission, this day, this
Court, delivered the following:

                     JUDGMENT

These two appeals are filed challenging the

judgment and award dated 20.09.2014 passed by the

Principal Senior Civil Judge, CJM & MACT-III,

Chitradurga in MVC No.433/2013. Since the challenge

is to the same judgment, both the appeals are clubbed

together, heard and common judgment is being

passed.

2. The claimant has filed MFA No.1/2015 seeking

enhancement of the compensation and the insurance

company has filed MFA No.2994/2015 challenging the

liability and also quantum.

3. Facts giving rise to the filing of the appeals

briefly stated are that on 13.08.2012 at about 2.30

p.m. the claimant along with others was proceeding in

the bus bearing registration No.KA-16/B-757. When

they reached near Madakaripura, at that time, the

driver drove the bus in a rash and negligent manner

and lost control over the same and bus went out off

the road and dashed against a road side tree and

caused the accident. As a result of the aforesaid

accident, the claimant sustained grievous injuries and

was hospitalized.

4. The claimant filed a petition under Section

166 of the Act on the ground that she was working in

Dharmasthala Gramodhyoga Sangha and was earning

Rs.10,000/- per month. It was pleaded that she also

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 driver of the bus.

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

filed written statement in which the averments made

in the petition were denied. It was pleaded that

though the vehicle was insured with the company,

liability, if any, is subject to the terms and conditions

of the policy. It was further pleaded that the owner

has to prove the validity, fulfillment of the terms and

conditions of the policy and has to produce the FC,

RC, permit to show that the policy conditions were

fulfilled. 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.

6. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant herself was

examined as PW-1 and Dr.M.S.Rajesh as PW-6 and

got exhibited 380 documents namely Ex.P1 to

Ex.P380. On behalf of the respondents, neither any

witness was examined nor produced any documents.

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.17,91,480/- along

with interest at the rate of 6% per annum and

directed the insurance company to deposit the

compensation amount along with interest. Being

aggrieved, these appeals have been filed.

7. The learned counsel for the claimant has

raised the following contentions:

Firstly, at the time of the accident the claimant

was aged about 25 years, she was working in

Dharmasthala Gramodhyoga Sangha and was earning

Rs.10,000/- per month, but the Tribunal has taken the

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

Secondly, the Tribunal taking into consideration

the evidence of the doctor - PW-6 and Disability

Evaluation Form - Ex.P157 and the disability

certificate - Ex. P158, has rightly held that the

claimant has suffered whole body disability at 67%.

Thirdly, since the claimant has suffered 67%

whole body disability, the Tribunal has rightly

considered addition of 50% towards future prospects.

Fourthly, the claimant was inpatient for a period

of 143 days and she has suffered 67% whole body

disability and she has to suffer the disabilities and

unhappiness throughout her life, the compensation

awarded by the Tribunal under the heads 'pain and

suffering' and 'loss of comforts and marital enjoyment'

is on the lower side. Hence, he sought for allowing

the appeal filed by the claimant and seeking

enhancement of the compensation.

8. On the other hand, the learned counsel for

the Insurance Company has raised the following

contentions:

Firstly, the claimant examined the doctor as PW-

6, who in his evidence has deposed that the claimant

has suffered 67% disability to a particular limb and

whole body disability has to be assessed at 1/3rd of

the limb disability. But the Tribunal is not justified in

wrongly assessing the whole body disability at 67%.

Secondly, even though the claimant claims that

she was earning Rs.10,000/- per month, she has not

produced any documents to establish her income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Thirdly, since the whole body disability comes to

22% and there is no material produced to prove that

due to disability claimant was unable to do her regular

work, the Tribunal is not justified in considering

addition of future prospects.

Fourthly, the compensation awarded by the

Tribunal under the heads 'pain and suffering' and 'loss

of comfort and marital enjoyment' is on the higher

side. Hence, he sought for dismissal of the appeal

filed by the claimant and for allowing the appeal filed

by the insurance company.

9. Heard the learned counsel for the parties.

Perused the original records, judgment and award

passed by the Tribunal.

10. 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.

Due to the accident the claimant has suffered

the following injuries:

(1) Irreducible posterior dislocation of

left hip.

(2) Fracture of left proximal tibia

bicondylar.

(3) Fracture and sub-total amputation

of left big toe and 2nd toe and post-

traumatic loss of right big toe nail.

The claimant has examined Dr.Rajesh as PW-6,

who, in his testimony has deposed that claimant has

sustained permanent disability of 67% to the whole

body. As per Ex.P157, in the disability column issued

by the doctor, he has stated that disability in respect

of mobility is 33%, disability in respect of stability is

40% and additional weightage is 10%. The disability

is calculated at 67% using the formula as Total =

Stability + Mobility (by combining formula) +

Additional Weightage. Taking into consideration

Disability Evaluation Form at Ex.P157 and disability

certificate at Ex.P158 and considering the injuries

suffered by the claimant and the evidence of the

doctor, the whole body disability can be assessed at

50%.

In respect of income is concerned, 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 2012, the

notional income has to be taken at Rs.7,000/- p.m.

The claimant in her deposition has deposed that

she was aged about 27 years at the time of the

accident and she was earning Rs.10,000/- per month

and due to disability she was unable to do her regular

work. In the cross-examination respondents have not

elicited any worthwhile from the claimant. Taking into

consideration the deposition of the claimant and

deposition of the doctor - PW6 and the disability

certificate - Ex.P158, I am of the opinion that due to

disability she is unable to do her regular work and

there is a functional disability. In view of the law laid

down by the Hon'ble Apex Court in the case of

'PAPPU DEO YADAV vs. NARESH KUMAR AND

OTHERS' 2020 SCC Online SC 752 and

'ERUDHAYA PRIYA vs. STATE EXPRESS

TRANSPORT CORPORATION LTD. 2020' SCC

Online SC 601, the claimant is entitled for addition of

future prospects.

In view of the law laid down by the Hon'ble Apex

Court in the case of NATIONAL INSURANCE CO.

LTD. -v- PRANAY SETHI AND OTHERS [AIR 2017

SC 5157], since the claimant was aged about 25

years, 40% of her income has to be added towards

future prospects and the applicable multiplier is '18'.

Hence, the monthly income of the claimant comes to

Rs.9,800/- (Rs.7,000 + 40%). Thus, the claimant is

entitled to Rs.10,58,400/- (Rs.9,800x12x18x50%) on

account of 'loss of future income due to disability'.

Since the income of the claimant is enhanced to

Rs.7,000/- per month, the claimant is entitled for

compensation of Rs.63,000/- (Rs.7,000x9 months)

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

The claimant was treated as inpatient for more

than 43 days in the hospital. Hence, the

compensation awarded by the Tribunal under the head

of 'conveyance and incidental expenses' is enhanced

from Rs.20,000/- to Rs.40,000/-.

The compensation awarded by the Tribunal

under other heads is just and reasonable.

11. 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 1,00,000 1,00,000 Medical expenses 1,15,000 1,15,000 Attendant and 50,000 50,000 nourishment, Loss of income during 54,000 63,000 laid up period Loss of comforts and 1,00,000 1,00,000 marital enjoyment Loss of future income 13,02,480 10,58,400 Future medical expenses 50,000 50,000 Conveyance and 20,000 40,000 incidental charges Total 17,91,480 15,76,400

The claimant is entitled to a total compensation

of Rs.15,76,400/- along with interest at 6% per

annum from the date of petition till the date of

realization.

The Insurance Company is directed to deposit

the compensation amount along with interest within a

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

of this judgment.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

The amount in deposit is ordered to be

transmitted to the Tribunal, forthwith.