Karnataka High Court
Raziya Begum vs Mahendra on 26 May, 2021
Author: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MAY, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.No.4131/2019 (MV)
BETWEEN:
RAZIYA BEGUM,
W/O DODDAMANI SHABU,
AGED ABOUT 47 YEARS,
TAILORING AND HOUSEHOLD WORK,
NOW NIL, R/O 1ST MAIN, 2ND CROSS,
KALIDAS NAGAR, HARIHAR,
NOW R/AT 1ST MAIN,
2ND CROSS, K.T.J. NAGAR
DAVANAGERE-577 001. ... APPELLANT
(BY SRI R. SHASHIDHARA, ADVOCATE)
AND:
1. MAHENDRA,
S/O R.T. NANJEGOUDA,
AGED ABOUT 37 YEARS,
DRIVER OF KSRTC BUS
BEARING NO.KA-17/F-1824,
DRIVER BILLE NO.1845,
SHIVAMOGGA DEPOT,
SHIVAMOGGA,
R/O NEAR VIJAYA SCHOOL,
RINGROAD, JAYANAGAR,
2ND STAGE, HASSAN-573 201.
2. THE MANAGING DIRECTOR,
KSRTC, DAVANAGERE DIVISION,
DAVANAGERE,
2
OWNER OF KSRTC BUS
BEARING NO.KA-17/F-1824
PIN-577 001.
3. THE CHAIRMAN, KSRTC,
INTERNAL SECURITY FUND,
SARIGE BHAVAN,
SHANTINAGAR, K.H.ROAD,
BENGALURU-560 027. ... RESPONDENTS
(BY SRI K. NAGARAJA, ADVOCATE FOR R-2 AND R-3;
VIDE ORDER DATED 26.05.2021
NOTICE TO R-1 IS DISPENSED WITH)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 13.11.2018
PASSED IN MVC.NO.901/2017 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND V MACT, DAVANAGERE,
DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS M.F.A. COMING ON FOR ORDERS THROUGH 'VIDEO
CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and award
dated 13.11.2018 passed in M.V.C.No.901/2017 on the file of
the I Additional Senior Civil Judge and V Additional MACT,
Davangere ('the Tribunal' for short) challenging the quantum of
compensation.
2. The parties are referred to as per their original
rankings before the Tribunal to avoid the confusion and for the
convenience of the Court.
3. The factual matrix of the case is that the
appellant/claimant met with an accident on 19.04.2017 at about
4.00 p.m. when the claimant was proceeding towards
Kenganahalli Village, Harihar Taluk, in motor cycle bearing
registration No.KA-17-W-2729 along with her husband as pillion
rider and when they reached near Yakkegundi cross, respondent
No.1 being the driver of the KSRTC bus bearing registration
No.KA-17-F-1824 came in a rash and negligent manner and
dashed against the motor cycle. As a result, the
claimant/appellant has sustained grievous injuries.
4. The claim petition was opposed by the respondents
by filing the objection statement. The claimant in order to
substantiate the claim examined herself as P.W.2 and also
examined the doctor as P.W.3. The wound certificate is marked
as Ex.P.13, two discharge summary are marked as Exs.P.14 and
15, disability certificate is marked as Ex.P.16 and medical bills
are marked as Ex.P.17. The other documents are also placed
before the Court.
5. The respondents have examined one witness as
R.W.1 and got marked the documents at Exs.R1 to 4. The
Tribunal after considering both oral and documentary evidence
placed on record, allowed the claim petition in part granting the
compensation of Rs.3,42,509/- with interest at the rate of 8%
per annum from the date of the claim petition till its realization.
Being aggrieved by the judgment and award of the Tribunal, the
present appeal is filed.
6. The learned counsel for the appellant would
vehemently contend that the Tribunal has committed an error in
taking the income of the injured as Rs.9,000/- per month and
the accident was taken place in 2017 and ought to have taken
the notional income in the absence of proof of avocation. The
Tribunal also failed to award just and reasonable compensation
under the head pain and suffering and also while calculating the
loss of future earning due to disability and also loss of income
during the laid up period. The learned counsel would contend
that only an amount of Rs.25,000/- is awarded under the head
loss of amenities, conveyance, food and nourishment and
attendant charges. Hence, it requires interference of this Court
to enhance the compensation.
7. Per contra, the learned counsel for respondent Nos.2
and 3 would contend that the nature of injuries sustained by the
claimant is only fracture of right 3rd, 4th, 5th and 6th rib and
fracture of right clavicle. The Tribunal has rightly awarded an
amount of Rs.30,000/- under the head pain and suffering. The
learned counsel would submit that in the absence of any proof
regarding income, the Tribunal has rightly taken the income of
Rs.9,000/- per month and also while awarding the compensation
allowed the interest at the rate of 8% per annum and hence it
does not require any interference of this Court for enhancement
of compensation.
8. Having heard the learned counsel for the appellant
and the learned counsel for respondent Nos.2 and 3, the point
that arises for the consideration of this Court is:
(i) Whether the Tribunal has committed an error
in not awarding just and reasonable
compensation and whether it requires
interference of this Court?
9. Having heard the respective learned counsel and also
on perusal of the records, there is no dispute with regard to the
accident. The dispute is with regard to awarding of
compensation in consonance with the nature of injuries
sustained by the claimant. It is not in dispute that the claimant
has sustained the fracture of right 3rd, 4th, 5th and 6th ribs and
also fracture of right clavicle. The records reveal that the
claimant was hospitalized for a period of 14 days and Exs.P.14
and 15 discharge summary confirms the same. The doctor who
has been examined as P.W.3 has issued the disability certificate
at Ex.P.16. The Tribunal while considering the claim of the
claimant has taken note of the evidence of P.W.3 who being the
Orthopedic Surgeon treated the claimant. In his evidence, he
categorically stated with regard to the nature of injuries. When
the claimant had sustained the injuries of fracture of particularly
3rd, 4th, 5th and 6th ribs and fracture of right clavicle and the
accident was taken in the year 2017, the Tribunal ought to have
awarded the compensation of Rs.40,000/- under the head pain
and suffering considering the nature of fracture. Hence, an
amount of Rs.40,000/- is awarded under the head pain and
suffering.
10. The Tribunal awarded an amount of Rs.1,20,109/-
considering all the medical bills and the same has not been
disputed. Hence, I do not find any error committed by the
Tribunal in awarding the compensation under the head medical
expenses.
11. Insofar as loss of future earning is concerned, the
Tribunal has taken the monthly income of Rs.9,000/- and this
accident occurred in the year 2017. The Tribunal ought to have
taken the notional income of Rs.11,000/- per month instead of
Rs.9,000/- per month in the absence of any documentary proof
with regard to the income. Hence, this Court has to re-visit for
calculating loss of future earning due to disability. Though
doctor P.W.3 in his evidence has stated that the claimant has
sustained disability to the extent of 25%, the Tribunal has taken
10% instead of 25%. Having taken note of the nature of the
fracture, particularly in respect of 3rd, 4th, 5th and 6th ribs, I do
not find any error committed by the Tribunal in taking 10%
disability. Taking the notional income at Rs.11,000/- per month,
whole body disability at 10% and applying the multiplier '13' as
taken by the Tribunal, loss of future earning comes to
Rs.1,71,600/- (Rs.11,000/- x 12 x 13 x 10%).
12. Insofar as loss of income during laid up period in
concerned, the Tribunal has taken three months as the laid up
period at the rate of Rs.9,000/- per month. Having taken note
of several fractures sustained by the claimant and the claimant
was in the hospital for a period of 14 days, it requires 3-4
months for uniting of fracture and rest. Hence, it is appropriate
to take laid up period as four months. Hence, an amount of
Rs.44,000/- (Rs.11,000/- x 4) is awarded under the head loss of
income during laid up period.
13. The Tribunal while awarding the compensation under
the head loss of amenities, conveyance, food and nourishment
and attendant charges, combined all the heads and awarded an
amount of Rs.25,000/- and not awarded compensation
individually. Hence, it requires modification. Having taken note
of the disability of 10% as considered by the Tribunal and also
the nature of injuries, an amount of Rs.20,000/- is awarded
under the head loss of amenities considering the age of the
claimant. The claimant was in the hospital for a period of 14
days and the accident is of the year 2017. Hence, under the
head conveyance, food and nourishment and attendant charges,
an amount of Rs.15,000/- is awarded.
14. In view of re-visiting the compensation under
different heads, the total compensation comes to Rs.4,10,709/-
as against Rs.3,42,509/-.
15. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed in part.
(ii) The judgment and award of the Tribunal dated
13.11.2018 passed in M.V.C.No.901/2017 is
modified granting compensation of
Rs.4,10,709/- as against Rs.3,42,509/- with
interest at the rate of 6% per annum for
enhanced compensation.
(iii) The respondent Nos.2 and 3 are directed to
pay the compensation amount with interest
within eight weeks from today.
(iv) The amount in deposit, if any, may be
transmitted to the Tribunal forthwith.
Sd/-
JUDGE
MD
