Sumathi Shetty vs Nagaraj
2021 Latest Caselaw 5005 Kant

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 29TH DAY OF NOVEMBER, 2021

                        BEFORE

        THE HON'BLE MR. JUSTICE E.S.INDIRESH

MISCELLANEOUS FIRST APPEAL NO.3044 OF 2013 (MV)

BETWEEN:

SUMATHI SHETTY
AGED ABOUT 33 YEARS,
D/O LATE ANANDA SHETTY,
RESIDENT OF KUNJADY VILLAGE,
KUNDAPURA TALUK.
                                          ... APPELLANT

(BY SMT. NAZEEFA M MULLA, ADVOCATE FOR
SRI PAVANA CHANDRA SHETTY H, ADVOCATE)


AND:

  1. NAGARAJ
     AGED ABOUT 29 YEARS
     S/O VENKU POOJARY
     R/O HARMANN,
     IDOOR KUNJADY VILLAGE,
     KUNDAPURA TALUK.

  2. UNITED INDIA INSURANCE CO. LTD.
     KUNDAPURA BRANCH
     KANCHAN TOWERS
     NH-17, KUNDAPURA
     REP. BY ITS BRANCH MANAGER.
                                       ... RESPONDENTS

(BY SRI A N KRISHNA SWAMY, ADVOCATE FOR R2;
 VIDE ORDER DATED 28.02.2018 NOTICE TO R1 IS
 DISPENSED WITH)
                                  2



     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLE ACT, AGAINST THE
JUDGMENT & AWARD DATED 22ND JANUARY, 2012, PASSED IN
MVC NO.62 OF 2011 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT, MOTOR ACCIDENT CLAIMS TRIBUNAL,
KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION     AND    SEEKING     ENHANCEMENT      OF
COMPENSATION.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT, DELIVERED THE FOLLOWING:


                         JUDGMENT

This appeal is preferred by the claimant assailing the

judgment and award dated 22nd January, 2012 passed in M.V.C

No.62 of 2011 on the file of the Court of Fast Track and Motor

Vehicle Accidents Claims Tribunal, Kundapura (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 11th September, 2010 at about 5.30 p.m. on SH-27, near

Subraya Achary, Chitoor Village, claimant was walking on the

left side of the Road and at that time, the driver of the APE

Autorickshaw bearing registration No.KA-19-T-TR-2969 drove

the same in a rash and negligent manner and dashed against

the claimant, as a result of same, claimant sustained grievous

injuries and he was taken to Chinmayi Hospital at Kundapura

for first-aid and thereafter to KMC Hospital at Manipal. It is the

case of the claimant that on account of Road Traffic accident,

she suffered permanent disability and as such, filed claim

petition before the Tribunal, seeking compensation.

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

un-represented, accordingly placed ex-parte. Respondent No.2-

Insurance Company entered appearance and filed detailed

written statement denying the averments made in the claim

petition. Based on the pleadings on record, the Tribunal

formulated issues for its consideration. In order to prove the

case, the claimant examined herself as PW1 and examined

Doctor as PW2 and produced 13 documents and same were got

marked as Exhibits P1 to P13. The respondent-Insurance

Company examined its official as RW1 and got marked 2

documents as Exhibits R1 and R2. The Tribunal, after

considering the material on record, by its judgment and award

dated 22nd January, 2012, allowed the claim petition in part and

awarded compensation of Rs.4,87,000/- with interest at the

rate of 6% per annum from the date of petition till payment.

Being not satisfied with the quantum of compensation awarded

by the Tribunal, the claimant preferred this appeal, seeking

enhancement of compensation.

5. I have heard Smt. Nazeefa M.Mulla for Sri. Pavana

Chandra Shetty, learned counsel appearing for the appellant

and Sri. A.N. Krishna Swamy, learned counsel appearing for the

respondent-Insurance Company.

6. Smt. Nazeefa M. Mulla, learned counsel for the

appellant contended that, the quantum of compensation

awarded by the Tribunal, taking into account the injuries

sustained by the claimant as per Exhibit P13-Wound Certificate,

is on the lower side and requires interference in this appeal.

7. Per contra, Sri. A.N. Krishna Swamy, learned counsel

appearing for the respondent-Insurance Company contended

that, award passed by the Tribunal is Just and proper and same

does not call for interference in this appeal.

8. In the light of submission made by the learned counsel

appearing for the parties, I have carefully considered the

material on record which discloses the fact that the claimant

sustained injuries on account of Road Traffic accident occurred

on 11th September, 2010.

9. Insofar as the quantum of compensation is concerned,

considering the injuries sustained by the claimant as per Exhibit

P13-Wound Certificate, the award made by the Tribunal

requires interference in this appeal. In order to prove the

disability, the Doctor was examined as PW2 who had deposed

that the claimant has suffered 51% permanent disability to her

right upper limb and opined disability to the tune of 100%

towards monoparasis, caused on account of Road Traffic

accident, the same has reduced the earning capacity of the

claimant. In this backdrop, I have carefully considered the

award made by the Tribunal. In view of the fact that the

claimant has not produced any document to prove the income

and as such, taking into consideration the Lok Adalat chart,

wherein the notional income with relevance to the accident of

the year 2010 is assessed at Rs.5,500/- per month, the same is

taken in this appeal also. It is also not in dispute that, the

Doctor has opined disability at 50% to the whole body.

Applying the multiplier 16 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.5,28,000/- (Rs.5,500 x 12 x 16 x 50%). I

have re-appreciated the evidence on record and taking into

account nature of injuries sustained by the claimant, she is

entitled for compensation of Rs.50,000/- towards pain and

suffering, Rs.60,000/- towards Medical expenses, conveyance,

special diet, nourishment and attendant charges. Claimant is

also entitled for Rs.33,000/- (Rs.5,500 x 6 months) towards

loss of income during laid-up period. Insofar as future Medical

expenses is concerned, taking into account the evidence of

PW2-Doctor, I am of the view that the claimant is entitled for

Rs.40,000/- towards future Medical expenses. The

compensation awarded under head loss of amenities remain

unaltered. Accordingly, the claimant is entitled for total

compensation of Rs.8,11,000/- as against Rs.4,87,000/-

awarded by the Tribunal with interest at the rate of 6% per

annum from the date of petition till payment.

Accordingly, appeal is disposed of.

Sd/-

JUDGE

ARK