Smt Sudha vs Erappa H.E
2021 Latest Caselaw 221 Kant

                           1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 6TH DAY OF JANUARY 2021

                      BEFORE

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

           MFA No.10212 OF 2013(MV)

BETWEEN:

SMT. SUDHA
W/O B.N. BALAKRISHNA
AGED ABOUT 42 YEARS
R/O NO.13, 8TH CROSS
MANDYA CITY-571401.
                                    ... APPELLANT

(BY SRI. RAJA L., ADV. )

AND

1.    ERAPPA H.E.
      S/O GUJJEGOWDA
      R.O NO.37/1, HITTANAHALLI VILLAGE
      KIRAGAVALU HOBLI
      MALAVALLI TALUK-571430.

2.    THE BRANCH MANAGER
      NATIONAL INSURANCE CO. LTD,
      1ST FLOOR NO.1576, V. V. ROAD
      MANDYA-571401.
                                  ... RESPONDENTS

(BY SRI.K.SRIDHARA, ADV. FOR R2)
                             2



     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:13.12.2012 PASSED IN MVC NO.217/2011 ON
THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE,
CJM, MACT, MANDYA PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCMENT OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION 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: 13.12.2012 passed

by the Motor Accident Claims Tribunal.

With the consent of the learned counsel for the

parties, the appeal is taken up for final disposal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 07.02.2011, the claimant

was proceeding on motorcycle bearing registration

No.KA-11/V-1944 for the purpose of booking the gas,

at about 1.30 pm and after booking the gas at

Gurubarath Gas shop, the claimant was riding the

motorcycle and going on Mysore-Bangalore road in

front of Bangalore road from KEB office side towards

northern side, at that time, Honda Active bearing

No.KA11/R 2585 came from Mysore side in a rash and

negligent manner and dashed against the claimant

and claimant fell down and sustained injuries. After

the accident, the claimant was taken to District

hospital, Mandya and the claimant was admitted as

inpatient for 10 days.

3. The claimant filed a petition under Section

166 of the Act on the ground that she is owning

milking cows and doing milk vending business

housewife and from all sources she used to earn

Rs.5000/-per month. The claimant is the only earning

member in the family and the entire family members

depending upon the income of the claimant for their

livelihood. 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 riding of

the offending vehicle by its rider.

4. 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 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 vehicle by the

claimant herself. 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 herself was

examined as PW-1 and got exhibited documents Ex.P-

1 to P-22 and Dr.Sharan Srinivasan was examined

through court commission as CW-1 and got exhibited

documents namely Ex.C1 to Ex.C6. On behalf of the

respondents, neither any witness was examined nor

any document was produced. 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 rider, as a result

of which, the claimant sustained injuries. The

Tribunal further held that the claimant is entitled to a

compensation of Rs.1,76,000/- 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

submitted that the claimant was aged about 41 years

and doing milk vending business. The income

assessed by the Tribunal at Rs.5,000/- p.m. is on the

lower side. Even as per the guidelines issued by the

Karnataka State Legal Services Authority, for the

accident taken place in the year 2011, the notional

income has to be taken at Rs.6,500/- p.m.

Secondly, CW-1, the doctor has stated in his

evidence that the claimant has suffered disability of

32.22% to whole body. But the Tribunal has erred in

taking the whole body disability at only 15%.

Thirdly, due to the accident, the claimant has

sustained injury to head, right hand, both legs and all

over the body. She was treated as inpatient for a

period of 10 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. The Tribunal has not granted any

compensation under the head of 'loss of amenities'.

Further, the compensation granted by the Tribunal

under the heads of 'pain and sufferings' and other

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 contended that CW-1, the

doctor has stated in his evidence that the claimant has

suffered disability of 32.22% to whole body. But the

Tribunal considering the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 15%.

Secondly, considering the oral and documentary

evidence, the Tribunal has granted just and

reasonable compensation and it does not call for

interference. Hence, he sought dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that the accident has

occurred due to rash and negligent riding of the

offending vehicle by its rider.

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 2011, the notional income has to be taken at

Rs.6,500/- p.m.

As per wound certificate, the claimant has

sustained grievous injuries. CW-1, the doctor has

stated in his evidence that the claimant has suffered

disability of 32.22% to whole body. The Tribunal

considering the injuries sustained by the claimant and

wound certificate, has rightly assessed the whole body

disability at 15%. The claimant is aged about 41 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.1,63,800/- (Rs.6,500*12*

14*15%) on account of 'loss of future income'.

As per wound certificate, the claimant has

sustained tenderness over right elbow joint, over left

side of face and head, left thigh posteriorly, diffuse

tenderness over abdomen. 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, a sum of Rs.20,000/- is

awarded under the head of 'loss of amenities'.

Further, I am inclined to enhance the compensation

awarded by the Tribunal under the head of 'loss of

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

The compensation awarded by the Tribunal

under other heads remains unaltered.

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 20,000 40,000 Medical expenses 20,000 20,000 Food, nourishment, 10,000 10,000 conveyance and attendant charges Loss of amenities 0 20,000 Loss of future income 126,000 163,800 Total 176,000 253,800

The claimant is entitled to a total compensation

of Rs.2,53,800/-.

The Insurance Company is directed to deposit

the compensation amount along with interest at 9%

p.a. within a period of four weeks from the date of

receipt of copy of this judgment.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

Accordingly, the appeal is allowed in part.

Sd/-

JUDGE

DM