Karnataka High Court

Smt Venkatlakshmamma @ ... vs M/S United India Insurance on 26 November, 2021

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 26TH DAY OF NOVEMBER 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

              MFA No.8100 OF 2018(MV)

BETWEEN:

SMT VENKATLAKSHMAMMA
@ VENKATAMMA
W/O VENKATARAMANAPPA
AGED ABOUT 62 YEARS
R/AT NO.66, HUDUKUL
BANGARPET, KOLAR DISTRICT-563101.
                                         ...APPELLANT

(BY SRI.GURUDEV PRASAD K T., ADV.)

AND

1.    M/S UNITED INDIA INSURANCE
      CO LTD.,
      MOTOR CLAIMS HUB
      NO.18, 6TH FLOOR
      KRUSHI BHAVAN, HUDSON CIRCLE
      BENGALURU-560001
      BY ITS MANAGER.

2.    M/S ALLA BAKASH
      S/O LATE AMANULLA
      M/S G.A.TRAVELS
      NO.2078, SANTHE GATE EXTENSION
      KOLAR DISTRICT-563101
                                       ...RESPONDENTS
                            2




(BY SRI.L.SREEKANTA RAO, ADV. FOR R1:
    R2 SERVED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 03.02.2018 PASSED
IN MVC NO.6720/2016 ON THE FILE OF THE XV
ADDITIONAL SMALL CAUSES JUDGE & XXIII ACMM,
MEMBER, MACT, MAYO HALL UNIT, BENGALURU, [SCCH-
19], PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

    THIS MFA COMING ON FOR ORDERS, THIS DAY, THE
COURT 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 03.02.2018 passed

by the Motor Accident Claims Tribunal, Bengaluru in

MVC No.6720/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 31.03.2016 at about 10.15

A.M., the claimant was traveling as a passenger in Bus

bearing registration No.KA-07/A-325 proceeding on

Bengaluru-Kolar NH-75 road, Hosakote Taluk,

Bengaluru Rural District, driven by its driver in a rash

and negligent manner, so as to endanger human life,

came at high speed, when the sad Bus reached near

MVJ Medical College, at that time, rear side of the Bus

Tyre was burst. As a result of forced impact, the Bus

mudguard sheet was broken and the claimant and

other passenger were fell down and sustained

grievous injuries and was hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that she spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondent No.1

being the insurer has appeared through counsel and

filed written statement in which the averments made

in the petition were denied. It was pleaded that the

petition itself is false and frivolous in the eye of law.

The driver of the offending vehicle did not have valid

driving licence as on the date of the accident. The

liability is subject to terms and conditions of the

policy. The age, avocation and income of the claimant

and the medical expenses are denied. It was further

pleaded that the quantum of compensation claimed by

the claimant is exorbitant. Hence, he sought for

dismissal of the petition.

The respondent No.2 did not appear before the

Tribunal inspite of service of notice and was placed

ex-parte.

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

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant herself was

examined as PW-1, another witness was examined as

PW-2 and Dr.S.A.Somashekar was examined as PW-3

and got exhibited documents namely Ex.P.1 to

Ex.P.15. On behalf of the respondents, neither

examined any witness nor exhibited any document.

The Claims Tribunal, by the impugned judgment, inter

alia, held that the accident took place on account of

rash and negligent driving of the offending vehicle by

its driver, as a result of which, the claimant sustained

injuries. The Tribunal further held that the claimant is

entitled to a compensation of Rs.2,07,800/- along with

interest at the rate of 9% p.a. and directed the

Insurance Company to deposit the compensation

amount along with interest. Being aggrieved, this

appeal has been filed.

6. The learned counsel for the claimant has

raised the following contentions:

Firstly, even though the claimant claims that she

was doing coolie work and earning Rs.300/- per day,

but the Tribunal has taken the notional income as

Rs.6,000/- per month is on lower side.

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered disability of

56% to particular limb and 28% to whole body. But

the Tribunal has erred in taking the whole body

disability at only 15%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. She was treated as

inpatient for a period of 54 days. Even after discharge

from the hospital, she was not in a position to

discharge her regular work. She has suffered lot of

pain during treatment. Considering the same, the

compensation granted by the Tribunal under the

heads of 'loss of amenities', 'pain and suffering' and

other heads are on the lower side. The Tribunal has

failed to grant any compensation for 'loss of income

during the laid up period'. Hence, he sought for

enhancement of compensation.

7. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Firstly, even though the claimant claims that she

was earning Rs.300/- per day, she has not produced

any documents to establish her income. Therefore, the

Tribunal has rightly assessed the income of the

claimant notionally.

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered disability of

56% to particular limb and 28% to the whole body.

The Tribunal considering the injuries sustained by the

claimant and her age and avocation, has rightly

assessed the whole body disability at 15%.

Thirdly, in view of judgment of the Division

Bench of this Court in the case of MS.JOYEETA BOSE

AND OTHERS vs. VENKATESHAN.V AND OTHERS

(MFA 5896/2018 and connected matters disposed of

on 24.8.2020), the claimants are entitled for 6%

interest but the Tribunal has granted 9% interest

which is on the higher side.

Lastly, considering the oral and documentary

evidence, the Tribunal has granted just and

reasonable compensation and it does not call for

interference. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent driving of the offending

vehicle by its driver.

The claimant claims that she was doing coolie

work and earning Rs.300/- per day. Considering the

evidence of the claimant, the monthly income of the

claimant can be assessed as Rs.9,000/-.

As per wound certificate, the claimant has

sustained swelling, tenderness, deformities of both

legs lower 1/3rd, #both left ankles and external

fixation and cost applied. PW-3, the doctor has stated

in his evidence that the claimant has suffered

disability of 56% to particular limb and 28% to whole

body. Therefore, taking into consideration the

deposition of the doctor, PW-3 and injuries mentioned

in the wound certificate, I am of the opinion that the

whole body disability can be taken 18%. The claimant

is aged about 60 years at the time of the accident and

multiplier applicable to his age group is '9'. Thus,

the claimant is entitled for compensation of

Rs.1,74,960/- (Rs.9,000*12*9*18%) on account of

'loss of future income'.

The nature of injuries suggests that the claimant

must have been under rest and treatment for a period

of 3 months. Therefore, the claimant is entitled for

compensation of Rs.27,000/- (Rs.9,000*3 months)

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

The claimant was treated as inpatient for more

than 54 days in the hospital and thereafter, has

received further treatment. Hence, I am inclined to

enhance the compensation awarded under the head of

'conveyance, nourishment and attendance charges'

from Rs.18,000/- to Rs.25,000/-.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. She has

suffered lot of pain during treatment and she has to

suffer with the disability stated by the doctor

throughout her life. Considering the same, I am

inclined to enhance the compensation awarded by the

Tribunal under the head of 'loss of amenities' from

Rs.5,000/- to Rs.40,000/-.

The compensation awarded by the Tribunal

under other heads is just and reasonable.

10. Thus, the claimant is entitled to the

following compensation:

As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 40,000 40,000 Medical expenses 32,557 32,557 Food, nourishment, 18,000 25,000 conveyance and attendant charges Loss of income during 0 27,000 laid up period Loss of amenities 5,000 40,000 Loss of future income 97,200 1,74,960 Future medical expenses 15,000 15,000 Total 2,07,757 3,54,517 ** The compensation of Rs.2,07,757/- awarded by the Tribunal has rounded off to Rs.2,07,800/-

11. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.3,54,517/-.

The Insurance Company is directed to deposit

the compensation amount along with interest from the

date of filing of the claim petition till the date of

realization, within a period of six weeks from the date

of receipt of copy of this judgment excluding interest

for the compensation awarded under the head of

'future medical expenses'. The enhanced

compensation shall carry interest at 6% per annum.