Karnataka High Court

Bettamma vs Sampige N Shivaprakash on 1 June, 2021

Author: H.P.Sandesh

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 1ST DAY OF JUNE, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.NO.1669/2013 (MV)

BETWEEN:

BETTAMMA
W/O BETTEGOWDA
AGED ABOUT 53 YEARS
R/O K.SHETTAHALLI VILLAGE
MANDYA TALUK AND DISTRICT-571412.
                                           ... APPELLANT

            (BY SRI M.Y.SREENIVASAN, ADVOCATE)
AND:

  1.     SAMPIGE N. SHIVAPRAKASH
         S/O S.N.SAMPIGE
         No.717, CHANDRODAYA KALYANA
         HOUSING SOCIETY LAYOUT
         NAGADEVANAHALLI
         JNANABHARATHI POST
         BENGALURU-560056.

  2.     THE BRANCH MANAGER
         NATIONAL INSURANCE CO. LTD.
         V.V.ROAD, MANDYA CITY-571401.
                                           ... RESPONDENTS

          (BY SRI H.S.LINGARAJ, ADVOCATE FOR R2;
        NOTICE TO R1 IS DISPENSED WITH VIDE ORDER
                     DATED 28.05.2013)
                                      2



     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 02.11.2012
PASSED IN MVC.NO.279/2010 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, MACT, MANDYA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS M.F.A. COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                            JUDGMENT

Though the matter is listed for admission today, with the

consent of the learned counsel for both the parties, it is taken up

for final disposal.

This appeal is filed challenging the judgment and award

dated 02.11.2012, passed in M.V.C.No.279/2010 on the file of

the Additional Senior Civil Judge and CJM and MACT, Mandya

('the Tribunal' for short) questioning the quantum of

compensation.

2. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

3. The factual matrix of the case is that the claimant on

07.08.2009, when she was proceeding towards Mysuru-

Bengaluru Road as the pillion rider in the motor cycle bearing

registration No.KA-11/J 7137, the driver of the Car bearing

registration No.KA-02/MG-191 came in a rash and negligent

manner and dashed against the motor cycle in which she was

proceeding. As a result, she sustained the grievous injuries and

suffered permanent disability. The claim petition is resisted by

the Insurance Company by filing the statement of objections.

The contention of the claimant before the Tribunal is that she

had suffered (i) abrasion over the left side forehead, left cheek

over left side face near orbit with swelling over mastoid region;

(ii) pain and tenderness over left clavicle region; (iii) contusion

over left hip and right knee; (iv) abrasion over right wrist;

(v) lacerated wound over left ear lobe region and (vi) injuries all

over the body. The doctor in his evidence has opined that the

injury No.1 is grievous in nature and other injuries are simple in

nature. The Tribunal, considering the evidence of the claimant

and also the doctor, awarded an amount of Rs.95,680/- as

compensation. Being aggrieved by the said award, the present

appeal is filed contending that the Tribunal has failed to take the

appropriate notional income and committed an error by taking

the income of the claimant at Rs.4,000/- per month.

4. Learned counsel for the appellant would vehemently

contend that the Tribunal failed to award the just and reasonable

compensation on the head of 'future loss of income' and also

failed to award any compensation on the head of 'loss of income

during the laid up period'. Learned counsel also would

vehemently contend that the compensation under the head of

'loss of amenities' has not been awarded by the Tribunal.

Hence, it requires interference of this Court.

5. Per contra, learned counsel appearing for the

respondent would vehemently contend that in all, the Tribunal

awarded an amount of Rs.40,000/- under the head of 'pain and

sufferings' considering the nature of injuries and also the

medical expenses and further, calculated the compensation

under the head of 'loss of income' by taking the income of the

claimant at Rs.4,000/- per month. Hence, it does not require

interference of this Court.

6. Having heard the arguments of the learned counsel

for the appellant as well as the learned counsel for the

respondent, the points that would arise for the consideration of

this Court are:-

(i) Whether the Tribunal has committed an error in not awarding the just and reasonable compensation and whether it requires interference of this Court ?

(ii) What order?

Points No.1 and 2:-

7. Having perused the materials available on record and

the award passed by the Tribunal, I do not find any reasons to

enhance the compensation on the head of 'pain and sufferings'

since the Tribunal under the different heads, considering the

grievous injuries, simple injuries and pain and sufferings, in all

awarded an amount of Rs.40,000/- as compensation. However,

the Tribunal has taken the income of the claimant at Rs.4,000/-

per month instead of Rs.5,000/- per month. In the absence of

any documentary proof regarding the income of the claimant,

the notional income would be Rs.5,000/- per month. The

Tribunal also considered the disability at 7% while calculating

the loss of income, which is proper. Hence, I do not find any

error committed by the Tribunal in taking the disability at 7%.

However, taking note of the income of the claimant at

Rs.5,000/- per month and by applying the relevant multiplier as

13 with disability of 7%, the compensation under the head of

disability would come to (Rs.5,000x12x13x7%=Rs.54,600)

Rs.54,600/-.

8. The Tribunal has not awarded any compensation on

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

taken note of the fracture of the left zygomatic, it requires three

months to unite the fracture and for rest. Hence, three months

of loss of income is taken and accordingly, an amount of

Rs.15,000/- is awarded on the head of 'loss of income during the

laid up period'.

9. The Tribunal awarded an amount of Rs.10,000/-

towards the 'incidental expenses'. The learned counsel for the

appellant not disputes the fact that the claimant was an inpatient

for a period of 7 days. Hence, it does not require any

interference of this Court. However, the Tribunal failed to award

the compensation on the head of 'loss of amenities'. Considering

the age of the injured as 50 years and the fact that she has to

lead rest of her life with the said disability, an amount of

Rs.20,000/- is awarded under the head of 'loss of amenities'.

10. The Tribunal awarded an amount of Rs.2,000/-

towards the 'medical expenses' which is at par. Hence, it does

not require the interference of this Court.

11. In view of the discussion made above, I pass the following:-

ORDER

(i) The appeal is allowed in part.

(ii) The judgment and award passed by the Tribunal is modified by granting the compensation of Rs.1,41,600/- as against Rs.95,680/-. The enhanced compensation would carry an interest at the rate of 6% per annum from the date of petition till realization.