Smt Sabira Bi vs Anjnappa
2021 Latest Caselaw 574 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 11TH DAY OF JANUARY 2021

                          PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

     THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

               M.F.A. NO.609 OF 2015 (MV-I)
BETWEEN:

SMT. SABIRA BI
W/O SYED HAFIZ
AGED ABOUT 46 YEARS
R/O 1ST MAIN, 5TH BLOCK
AZAD NAGAR
DAVANAGERE-577001.
                                              ... APPELLANT
(BY MR. HANUMANTHAPPA A, ADV.,)

AND:

1.     ANJNAPPA
       S/O GIRIYAPPA, MAJOR
       R/O NEAR KALLESHWARA TALKIES
       HOSADURGA TOWN
       CHITRADURGA DIST-577506.

2.     G. MOHAMMED RAFIQ
       S/O GHOUSE SAB, MAJOR
       OWNER OF VIJAYA BUS NO. KA-06
       B-1415, VASAVI MAHAL ROAD
       NEAR BUS STAND, HOSADURGA TOWN
       CHITRADURGA-577506.

3.     THE MANAGER
       ORIENTAL INSURANCE COMPANY LIMITED
       BRANCH OFFICE CHITRADURGA
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      REP. THROUGH ITS
      DIVISIONAL OFFICE
      ORIENTAL INSURANCE CO. LTD.,
      THILVALLI COMPLEX, 1ST FLOOR
      PB ROAD, DAVANAGERE-57701.
                                            ... RESPONDENTS
(BY MR. B.S. UMESH, ADV., FOR R3
V/O DTD:04-09-2015 NOTICE TO R1 & R2 D/W)

                           ---

     THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 21.8.2014 PASSED
IN MVC NO.110/2013 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE & VII MACT, DAVANAGERE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., 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 21.08.2014 passed by the Motor

Accident Claims Tribunal (hereinafter referred to as 'the

tribunal' for short).

2. Facts giving rise to the filing of the appeal

briefly stated are that on 06.05.2012, the claimant viz.,

Sabira was proceeding in a hired autorickshaw bearing

registration No.KA-17/A-7028. When the said vehicle

was reached near Bellary Motors at old P.B.Road,

Davanagere, a bus bearing registration No.KA-06/B-

1415, which was being driven by its driver in a rash and

negligent manner, came from opposite direction and

dashed against the aforesaid autorickshaw. As a result

of the aforesaid accident, the claimant sustained

grievous crush injury over her right hand resulting in

multifarious fractures over right upper limb and was

immediately shifted to Chigateri District Hospital,

Davanagere and then to City Central Hospital,

Davanagere. She was subjected to major surgery and

operations for the aforesaid injury and remained

inpatient for a period of 53 days.

3. The claimant thereupon filed a petition under

Section 166 of the Act inter alia on the ground that the

claimant was subjected to major surgery and operations

for the aforesaid injury and remained inpatient for a

period of 53 days. She was again operated in Kasturba

Hospital, Manipal. It was also pleaded that the claimant

was aged about 45 years at the time of accident and

was doing tailoring work and was earning a sum of

Rs.10,000/- per month. It was further pleaded that the

right hand of the claimant is completely damaged and

she has been rendered disabled and disfigured by her

right upper limb and has to suffer for the rest of her life

as a disabled and disfigured person. It is also pleaded

that the claimant has spent more than Rs.5,00,000/-

towards medical expenses. It was also pleaded that the

accident took place on account of the rash and negligent

driving of the driver of the bus. The claimant claimed

compensation to the tune of Rs.20,00,000/- along with

interest.

4. The insurance company filed written statement

in which it was inter alia pleaded that the claim petition

is not maintainable and the mode and manner of the

accident was denied. It was also pleaded that the

accident occurred on account of negligence of the driver

of the auto rickshaw. It was further pleaded that the

driver of the auto rickshaw did not possess valid and

effective driving licence as well as insurance at the time

of the accident. It was also pleaded that liability of the

insurance company to the compensation, if any, is

subject to the terms and conditions of the policy. The

age, occupation, income and injuries sustained by the

claimant was denied. It was also stated that the

compensation claimed by the claimant is highly

excessive, speculative and exorbitant.

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

Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant, in order to prove

her case, examined herself as PW-1 and another witness

as Dr. Raghuraj Kundanagar (PW-2) and got exhibited

documents namely Ex.P1 to Ex.P237. The respondents

examined Hemalatha (RW1) and G.B.Umesh (RW2) and

got exhibited documents viz., Ex.R1 to Ex.R5. The

Claims Tribunal, by the impugned judgment, inter alia,

held that the accident took place on account of rash and

negligent driving of the bus by its driver, as a result of

which, the claimant sustained grievous crush injuries.

The Tribunal further held that the claimant is entitled to

a compensation of Rs.4,01,000/- along with interest at

the rate of 6% per annum. Being aggrieved, this appeal

has been filed.

6. Learned counsel for the claimant submitted

that the Tribunal has grossly erred in assessing the

income of the claimant as Rs.5,000/- per month and in

any case, the same ought to have been taken as per the

guidelines framed by the Karnataka State Legal Services

Authority. It is also submitted that the Tribunal erred in

assessing the disability of the claimant at 15% when the

evidence of PW2 Dr.Raghuraj Kundanagar and Ex.P16,

disability certificate clearly show that the claimant has

suffered disability to the extent of 90% to the upper

limb. It is further submitted that the Tribunal erred in

assessing the permanent disability of the claimant at

22% when PW2 Dr. Chaitanya has clearly stated that

the disability of the claimant is 65.22% to the whole

body. It is also submitted that the tribunal has failed to

consider the medical bills and bus tickets produced by

the claimant for her treatment to the full extent. It is

also urged that the amount of compensation awarded

under all the other heads are on the lower side and

deserve to be enhanced suitably. On the other hand,

learned counsel for the insurance company submitted

that no evidence has been adduced by the claimants to

prove the income of the claimant before the Tribunal

and that the Tribunal has rightly taken the income of the

deceased notionally at Rs.5,000/- per month. It is

further submitted the claimant has only suffered a crush

injury to her right upper limb which has been

subsequently treated with a skin graft operation and has

completely healed. It is also submitted that the amount

of compensation awarded by the Tribunal under all the

heads is just and proper and does not call for any

interference.

7. We have considered the submissions made

by learned counsel for the parties and have perused the

record. The only question which arises for our

consideration in this appeal is with regard to the

quantum of compensation. PW2-Dr.Raghuraj

Kundanagar in his evidence has stated that the claimant

has suffered disability to the extent of 90% to her upper

limb. Ex.P16-disability certificate discloses that the

claimant is unable to use her right upper limb for daily

activities and that she had suffered 60% loss of right

shoulder movement, 22% loss of right elbow movement

and 70% loss of right wrist movements. As a result of

the aforesaid injuries, the claimant has suffered poor

prehension, poor grip strength and partial loss of

sensation over right hand and over right elbow. It is also

pertinent to note here that the claimant is a tailor by

occupation. Ex.P9-wound certificate indicates that the

claimant has suffered right humerous shaft fracture and

open comminuted right distel humerous and olecranon

fracture with radial and ulner injury. Therefore, taking

into consideration the nature of injuries suffered, the

disability sustained, age and avocation of the claimant,

it can safely be inferred that the claimant has suffered

disability to the extent of 25% to the whole body.

Admittedly, the claimant has not produced any evidence

with regard to her income. Therefore, the notional

income of the claimant is to be assessed as per the

guidelines issued by the Karnataka Legal Services

Authority. Since, the accident is of the year 2012,

notional income comes to Rs.7,000/- per month.

Therefore, the claimant is entitled to Rs.2,94,000/-

(Rs.7,000 x 12 x 14 x 25%) under the head 'loss of

earning capacity'.

8. Considering the fact the claimant has suffered

right humerous shaft fracture and open comminuted

right distel humerous and olecranon fracture with radial

and ulner injury, which are grievous in nature and the

fact the claimant has remained an inpatient for a period

of 53 days, the claimant would have been under

treatment atleast for 5 months. Therefore, the claimant

is entitled to Rs.35,000/- (5,000x7) under the head 'loss

of income during laid up period and is also held entitled

to Rs.35,000/- under the head 'conveyance,

nourishment and attendant charges' as well as to a sum

of Rs.40,000/- under the head of 'pain and suffering'.

9. Taking into consideration the nature of

injuries suffered by the claimant as well as the disability

sustained by the claimant as stated supra, it is evident

that the injuries sustained by the claimant would have a

permanent impact on the claimant's enjoyment of life.

Therefore, we hold that the claimant is entitled to a

compensation of Rs.30,000/- under the head of 'loss of

amenities of life, discomfort and disfiguration'.

10. The amount of compensation awarded under

the other heads is maintained as no grounds for

interference is made out by the claimant. Thus, the

claimant is held entitled to a total compensation of

Rs.6,34,000/-. Needless to state that the aforesaid

amount of compensation shall carry interest at the rate

of 6% per annum from the date of filing of the petition

till the date of realization of the amount. To the

aforesaid extent, the judgment of the claims Tribunal is

modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

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