Karnataka High Court

Smt. Thrisha Kiran vs Sri. M.K. Rathnakar on 6 January, 2021

Author: S.Sujatha And M.I.Arun

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 6TH DAY OF JANUARY, 2021

                         PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                           AND

            THE HON'BLE MR. JUSTICE M.I.ARUN

                 M.F.A.No.5602/2019 (MV)

BETWEEN :

SMT.THRISHA KIRAN
W/O SRI DINESH POOJARY
AGED ABOUT 39 YEARS,
R/AT 2-98-B, VENJARAKATTE,
BOLA VILLAGE, KARKALA TALUK - 575213           ...APPELLANT

              (BY SRI DHANANJAY KUMAR, ADV.)

AND :

1.      SRI M.K.RATHNAKAR
        S/O SRI A.B.KABAYYA
        AGED ABOUT 60 YEARS
        R/AT 'SARALA', DANASHALA ROAD,
        KARKALA KASABA VILLAGE,
        KARKALA TALUK - 575213

2.      THE BRANCH MANAGER
        NATIONAL INSURANCE CO. LTD.,
        MOODABIDRI BRANCH,
        1ST FLOOR, NITHYANANDA COMPLEX,
        NEAR BUS STAND, MOODABIDRI
        MANGALORE TALUK - 575001           ...RESPONDENTS

 (BY SRI B.C.SEETHARAMA RAO, ADV. FOR R-2; R-1 SERVED.)
                          -2-

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
29.11.2018 PASSED IN MVC No.643/2018 ON THE FILE OF THE
SENIOR CIVIL JUDGE & AMACT, KARKALA, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

      THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:

                    JUDGMENT

This appeal is directed against the judgment and

award dated 29.11.2018 passed in MVC No.643/2018

on the file of the Sr. Civil Judge & AMACT, Karkala

[Tribunal for short].

2. The claimant instituted the petition under

Section 166 of the Motor Vehicles Act, 1988 seeking

compensation for the injuries sustained by her in the

road traffic accident.

3. It was averred in the claim petition that

while the claimant was proceeding on her two wheeler

bearing Reg.No.KA-19-EM-3255 from Thodar towards

Bola village, in front of Hotel New Padival, Marpady

village, Mangalore Taluk, one stage carriage Bus bearing

Reg.No.KA-20-B-9949 (offending vehicle) came in a rash

and negligent manner in a high speed and dashed

against the claimant, as a result, she fell down and

sustained serious injuries. Immediately, she was shifted

to Alva's Health Centre, Moodabidri and thereafter to

First Neuro Brain and Spine Superspeciality Hospital,

Padil, Mangalore wherein she was hospitalized. She took

treatment as an inpatient from 28.12.2017 to

29.12.2017 and has incurred huge medical expenses.

She was earning Rs.15,000/- per month. Owing to the

injuries sustained by her, she is not in a position to do

her work as a canteen employee which she was doing

prior to the accident.

4. In pursuant to the service of notice,

respondent No.1 the owner of the offending vehicle

remained absent and was placed exparte. The insurer

appeared and contested the claim. Written statement

was filed denying the petition averments. Admitting

the coverage of the policy it was contended that the 1st

respondent has violated the policy conditions. It was

contended that the driver of the offending vehicle had

no valid and effective driving licence at the time of the

accident. On these grounds, learned counsel sought for

dismissal of the petition.

5. On the basis of the pleadings, issues were

framed and answered allowing the petition in part

awarding total compensation of Rs.6,73,460/- with

interest @ 8% p.a. on Rs.5,73,460/- from the date of

petition till realization.

6. Being dissatisfied with the quantum of

compensation awarded by the Tribunal, the claimant

has filed the present appeal.

7. Learned counsel for the appellant/claimant

submitted that the claimant has sustained grievous

injuries. As per the wound certificate issued by Atharva

Ortho Care Surathkal, the claimant has sustained the

following injures:

"Contusion on left shoulder with x-ray No.10630 showing fracture of clavicle, contusion on the left buttock with back pain with CT scan showing fracture dislocation of 11th and 12th thoracle vertebra with fracture of transverse process of first lumber vertebra fracture with paraparessi (paralysis of both lower limbs) which are grievous in nature, abrasion on the right knee abrasion on back of right shoulder which are simple in nature."

8. Dr.Ullas Shetty who was examined as PW-2

has assessed the disability to an extent of 20% with

respect to spine. However, the Tribunal has assessed

the disability at 8% to the whole body. The income

determined by the Tribunal at Rs.9,000/- per month is

not correct. It was further argued that the compensation

awarded under different heads is on the lower side and

the same requires to be enhanced substantially.

9. Learned counsel for the insurer submitted

that the Tribunal after analyzing the oral and

documentary evidence has rightly awarded the

compensation and there is no scope for further

enhancement and accordingly sought for dismissal of

the appeal.

10. We have carefully considered the rival

submissions of the learned counsel appearing for the

parties and perused the original records.

11. The factum of accident and injuries

sustained by the claimant in the accident in question

are not in dispute. PW-2 Dr.Ullas Shetty has assessed

the disability to the spine at 20%. Accordingly, the

Tribunal has determined the disability at 8% to the

whole body which in our opinion does not suffer from

any infirmity. However, the monthly income

determined by the Tribunal at Rs.9,000/- seems to be

on the lower side. In terms of the chart prepared by the

Karnataka State Legal Services Authority, it would be

safe to re-determine the monthly income at Rs.11,000/-

. Applying the multiplier of 15, the loss of future income

due to disability would be Rs.1,58,400/-(Rs.11000 x

12 x 15 x 8%).

12. The claimant was hospitalized for a period

of 15 days and has undergone surgery, as such we

deem it appropriate to award Rs.1,00,000/- towards

pain and agony. In all other respects, the compensation

awarded by the Tribunal being just and reasonable, on

re-appreciation of oral and documentary evidence, we

confirm the same. Hence the compensation is re-

determined as under:

Sl.No. Particulars Amount [in Rs.] 1. Pain and agony 1,00,000 2. Loss of amenities of life 50,000 Rest, nourishment and 3. 40,000 attendant charges 1,85,360 4. Medical expenses Loss of income during laid up 5. 58,500 period 6. Conveyance 30,000 7. Future medical expenses 1,00,000 8. Loss of future income 1,58,400 Total 7,22,260

Total compensation awarded by the Tribunal is

modified and enhanced to Rs.7,22,260/- as against

Rs.6,73,460/- which shall carry interest @ 6% p.a. on

the enhanced compensation from the date of the

petition till its realization.

13. Hence, the following:

ORDER

i) The appeal is allowed in part.

ii) The total compensation awarded by the Tribunal

is modified and enhanced to Rs.7,22,260/-

(Rupees Seven Lakhs Twenty Two Thousand Two

Hundred and Sixty only) as against Rs.6,73,460/-