Concepta Lobo vs The National Insurance Co Ltd
2021 Latest Caselaw 3697 Kant

                          1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 9TH DAY OF NOVEMBER, 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE E.S.INDIRESH
 MISCELLANEOUS FIRST APPEAL NO.5786 OF 2014

BETWEEN:

CONCEPTA LOBO,
D/O XAVER LOBO,
AGED ABOUT 72 YEARS,
RESIDENT OF C L COMPOUND,
KOORNADKA, KEMMINJE VILLAGE,
PUTTUR TALUK,
PRESENTLY RESIDING AT
CYRIL COMPOUND, KADRI KAMBLA,
MANGALURU TALUK, D.K.-575 004.

                                        ... APPELLANT
(BY SRI GURUPRASAD B.R., ADVOCATE)

AND:

  1. THE NATIONAL INSURANCE CO. LTD.,
     BRANCH: II FLOOR,
     GANESH BUILDING, B.C.ROAD,
     BANTWAL TALUK-574 211.
     REPRESENT BY ITS MANAGER.

  2. MR.RAVI @ RAVI ACHARI,
     S/O LATE SUNDARA ACHARI,
     AGED ABOUT 39 YEARS,
     RESIDENT OF DANDIKERE HOUSE,
     NARIKOMBU VILLAGE,
     BANTWAL TALUK-574 211.

                                     ... RESPONDENTS
                                 2


(BY SRI. ASHOK N.PATIL, ADVOCATE FOR R1;
VIDE ORDER DATED 30.01.2015 NOTICE
TO R2 IS DISPENSED WITH)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT & AWARD DATED 22ND
FEBRUARY, 2014 PASSED IN M.V.C No.1082 OF 2012 ON
THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS
JUDGE AND MEMBER, MOTOR ACCIDENT CLAIMS
TRIBUNAL, MANGALURU, PARTLY ALLOWING THE CLAIM
PETITION     FOR    COMPENSATION     AND    SEEKING
ENHANCEMENT OF COMPENSATION.

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


                          JUDGMENT

This appeal is preferred by the claimant against the

judgment and award dated 22nd February, 2014 passed in

M.V.C No.1082 of 2012 on the file of the IV Additional

District and Sessions Judge and Member, Motor Accident

Claims Tribunal, D.K., Mangaluru (for short, hereinafter

referred to as "Tribunal"), seeking enhancement of

compensation.

2. For the sake of convenience, the parties in this

appeal shall be referred to in terms of their status and

ranking before the Tribunal.

3. It is the case of the claimant before the Tribunal

that on 06th February, 2012 at about 12.30 p.m, the

claimant was traveling in Omni van bearing registration No.

KA-20-M/4129 on NH-48 at Kudrebettu, Balthila Village,

Bantwala Taluk, driver of another Omni van bearing

registration No.KA-04-P/5278 dashed to the Omni van in

which the claimant was traveling and as a result of the

same, the claimant sustained grievous injuries and

thereafter claimant was taken to Tejaswini Hospital for first

aid and thereafter to K.M.C., Mangaluru for further

treatment. It is the case of the claimant that on account of

the said accident, she suffered mental and physical agony

and as such, she filed M.V.C No.1082 of 2012 on the file of

the Tribunal, seeking compensation.

4. On service of notice, respondents entered

appearance and first respondent-Insurance Company filed

detailed written statement denying the averments made in

the claim petition. Based on the pleadings on record, the

Tribunal framed issues for its consideration. In order to

prove the case, the claimant has examined herself as PW1

and examined Doctor as PW2 and produced 13 documents

and same were got marked as Exhibits P1 to P13. The

respondents have not adduced any evidence before the

Tribunal. However, they produced 2 documents and same

were got marked as Exhibits R1 and R2. The Tribunal, after

considering the material on record, by its judgment and

award dated 22nd February, 2014, allowed the claim

petition in part and ordered that the claimant is entitled for

compensation of Rs.3,00,000/- with interest at the rate of

6% per annum from the date of petition till realisation.

Being not satisfied by the quantum of compensation

awarded by the Tribunal, the claimant has presented this

appeal.

5. I have heard Sri. Guruprasad B.R, learned counsel

appearing for the appellant and Sri. Ashok N.Patil, learned

counsel appearing for the respondent-Insurance Company.

6. Sri. Guruprasad B.R., learned counsel for the

appellant argued that the claimant has produced disability

certificate Exhibit P9, which shows that the claimant has

suffered functional disability to an extent of 40% however,

the Tribunal has taken it as 10% as permanent physical and

functional disability which requires interference in this

appeal. Hence, the learned counsel prays for enhancement

of compensation.

7. Per contra, Sri. Ashok N.Patil, learned counsel

appearing for the respondent-Insurance Company sought to

sustain the judgment and award passed by the Tribunal as

Just and proper and the same does not call for interference

in this appeal.

8. Having heard the learned counsel appearing for

the parties, it is not in dispute that the claimant suffered

injuries on account of Road Traffic accident occurred on 6th

February, 2012. Perusal of the records would clearly

indicate that the claimant has produced Exhibits

P9-Disability Certificate which has been issued by the

Wenlock District Hospital, Mangaluru stating that the

claimant has sustained 40% Physical impairment to the

right lower limb. Considering the nature of injuries

sustained by the claimant as per Exhibit P5-Wound

Certificate, I am of the view that the Tribunal erred in

taking into consideration of the functional disability and

accordingly same has to be modified in this appeal, by

taking the disability at 14%.

9. In view of the fact that the claimant has not

produced any document to prove her avocation, taking into

consideration Lok Adalat chart, the notional income with

relevance to the accident of the year 2012 is Rs.7,000/- per

month, and the same is taken in this appeal. Applying the

multiplier 5 as per the law declared by Hon'ble Supreme

Court in the case of SARLA VERMA AND OTHERS Vs. DELHI

TRANSPORT CORPORATION AND ANOTHER reported in

2009 ACJ 1298, compensation under the head loss of future

income would be Rs.58,800/- (Rs.7,000 x 12 x 5 x 14%).

Insofar as the quantum of compensation awarded by the

Tribunal under other heads is concerned, the same are just

and proper and do not call for any interference. In result,

award made by the Tribunal is modified holding that the

claimant is entitled for enhanced compensation of

Rs.34,800/- with interest at the rate of 6% per annum from

the date of petition till realisation.

Appeal is accordingly disposed of.

Sd/-

JUDGE

ARK