Smt. Kanika Agrawal vs Sri. Chetan Reddy. B
2021 Latest Caselaw 586 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 11TH 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.3444/2019 (MV)

BETWEEN :
SMT KANIKA AGRAWAL
W/O MANISH AGRAWAL
AGED ABOUT 29 YEARS
R/AT FLAT No.301,
KESAR RESIDENCY APARTMENTS
G-BLOCK, SAHAKARANAGAR
BEHIND SANTHI NAGAR HOTEL
BENGALURU NORTH
SAHAKARANAGAR POST
BENGALURU-92.                                  ...APPELLANT

                   (BY SRI HALLI.S.B., ADV.)

AND :
1.      SRI CHETAN REDDY.B
        S/O BHEEMANNA
        MAJR, R/AT 424, II CROSS
        MURTHYNAGARA, GOKUL POST
        BENGALURU-54.

2.      THE NEW INDIA ASSURANCE
        COMPANY LIMITED, No.2,
        UNITY BUILDING ANNEXE
        P.KALINGA RAO ROAD [MISSION ROAD]
        BENGALURU.                        ...RESPONDENTS

         (BY SRI GANGARAJA REDDY.H.A., ADV. FOR R-1;
                SMT GEETHA RAJ, ADV. FOR R-2.)
                          -2-

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
16.02.2019 PASSED IN MVC No.464/2018 ON THE FILE OF THE
III ADDITIONAL JUDGE & MEMBER, MACT, COURT OF SMALL
CAUSES, BENGALURU [SCCH-18], PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

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

                    JUDGMENT

This appeal is directed against the judgment and

award dated 16.02.2019 passed in MVC No.464/2018

on the file of the III Additional Judge and Motor

Accident Claims Tribunal, Court of Small Causes,

Bengaluru (SCCH-18) ['Tribunal' for short].

2. The claimant instituted the petition under

Section 166 of the Motor Vehicles Act, 1988 claiming

compensation for the injuries sustained by her in the

road traffic accident.

3. It was averred in the claim petition that on

20.09.2017 at about 09.15 a.m., when the claimant was

dropping her son to the school and returning home in

the Scooty bearing No.KA-04-HU-0051 near Shanthi

Sagar Restaurant, Sahakaranagar Main road, the rider

of the Bajaj motorcycle bearing registration No.KA-04-

HQ-8384 [offending vehicle] ridden by its rider in a rash

and negligent manner dashed to her. As a result, she

fell down and sustained grievous injuries. Immediately,

she was shifted to Columbia Asia hospital, Hebbal,

Bengaluru and has taken treatment as an inpatient.

4. It was contended that the claimant was aged

about 29 years, working as a Junior Executive [ATM] at

Airport Authority of India and was drawing a salary of

Rs.1,15,000/- p.m., The accidental injuries has caused

loss of earning capacity and she has incurred huge

expenses towards medical treatment. On these facts

and grounds, compensation was sought by the

claimant.

5. In response to the notice issued, the

respondents appeared before the Tribunal and filed the

written statements. The respondent No.1 denying the

petition averments contended that the accident

occurred due to the claimant herself who came from the

opposite direction and dashed against the offending

vehicle. It was further contended that the compensation

claimed is exorbitant and baseless. The main defence

taken was that the vehicle was insured with the insurer

- second respondent and the insurance policy was in

force as on the date of the accident.

6. The respondent No.2 - insurer denying the

petition averments contended that the claimant was not

wearing helmet with ISI mark due to which she has

sustained injuries. The appellant herself has contributed

for the cause of the accident; the rider of the offending

vehicle had no valid and effective driving licence to ride the

said vehicle; the compensation claimed was highly

excessive and exorbitant. On these set of grounds, the

insurer sought for dismissal of the claim petition.

7. On the basis of the pleadings, issues were

framed and answered allowing the claim petition in part

awarding total compensation of Rs.5,86,471/- with

interest at the rate of 8% p.a., from the date of petition

till its realization.

8. Being dissatisfied with the quantum of

compensation awarded, the claimant has preferred the

present appeal.

9. Learned counsel for the appellant submitted

that the Tribunal has failed to appreciate the gravity of

injuries sustained by the claimant vis-à-vis the impact

of the injuries for the rest of her life. The compensation

awarded is disproportionate with the nature of the

injuries sustained by the claimant which certainly

warrants the interference of this Court. It was argued

that the compensation awarded towards the different

heads being meager and the same deserves to be

enhanced substantially.

10. Learned counsel for the insurer would argue

that on profuse analysis of the material evidence, the

Tribunal has awarded just and proper compensation

which deserves to be confirmed dismissing the appeal.

11. We have carefully considered the rival

submissions of the learned counsel appearing for the

parties and perused the material on record.

12. The wound certificate at Ex.P6 would

disclose that the appellant has sustained the following

injuries:

1]. Multiple Abrasions present at places over the body.

2]. Compound comminuted fracture of left femur [thigh bone].

Dr.D.J.Navinchand who was examined as PW2

has assessed the disability to the extent of 21% to the

whole body. The appellant was admitted to the hospital

on 20.09.2017, underwent surgery and was discharged

from the hospital on 22.09.2017.

13. The injured was aged about 29 years and

was working as Junior Executive [ATM] at Airport

Authority of India and drawing salary of Rs.1,15,000/-

p.m. The leave certificate at Ex.P11 would reveal that

she took earned leave for a period of 50 days. The

Tribunal considering the pay slip of the injured

produced and marked as Ex.P14 relating to the month

of December 2017 though taken the salary of

Rs.88,694/- earned by the claimant, deducted the

encashment benefit, basic, DA and HRA along with the

income tax and profession tax. As per the settled legal

principle what has to be deducted is only the income tax

of Rs.4,256/- and the profession tax of Rs.200/-.

Accordingly, the monthly income earned by the injured

would be Rs.84,238/-. The loss of income during the

laid period of 50 days would work out to Rs.1,40,396/-

as against Rs.88,020/- determined by the Tribunal.

14. Considering the nature of the injuries

sustained by the claimant and the impact of the same,

we deem it appropriate to award a sum Rs.50,000/-

towards pain and sufferings; a sum of Rs.1,00,000/-

towards damages due to disability; a sum of

Rs.50,000/- towards loss of amenities; a sum of

Rs.25,000/- towards Attendant, nourishment and

conveyance charges; and a sum of Rs.25,000/- towards

future medication as against the compensation

determined by the Tribunal under these heads.

15. For the reasons aforesaid, the total

compensation awarded by the Tribunal is re-assessed

as under:

Amount [in Sl.No. Particulars Rs.]

1. Pain and suffering 50,000/-

Loss of income during laid up

2. 1,40,396/-

period and rest period

3. Medical expenses 3,63,451/-

Reduced eligibility of employment

4. 1,00,000/-

or damages due to disability

5. Loss of amenities 50,000/-

Attendant, nourishment and

6. 25,000/-

conveyance charges

7. Future medication 25,000/-

Total 7,53,847/-

Thus, the claimants shall be entitled to total

compensation of Rs.7,53,847/- with interest at the rate

of 6% per annum on the enhanced compensation from

the date of the claim petition till the date of realization.

16. Hence, the following:

ORDER

i] Appeal is allowed in part.

ii] The total compensation awarded by the Tribunal

is modified and enhanced to Rs.7,53,847/- as

against Rs.5,86,471/- which shall carry interest

at the rate of 6% per annum on the enhanced

compensation from the date of the claim petition

till its realization.

iii] The insurance company shall deposit the re-

assessed total compensation determined as

aforesaid before the Tribunal within 90 days from

- 10 -

the date of receipt of the certified copy of the

judgment and order.

iv] The portion of the order of the Tribunal inasmuch

as liability and disbursement remains intact.

v] The modified compensation shall be disbursed in

terms of the order of the Tribunal.

vi] Draw modified award accordingly.

vii] Registry shall transfer the amount in deposit along

with the original records to the jurisdictional

Tribunal forthwith.

Sd/-

JUDGE

Sd/-

JUDGE

NC.