Shirubai @ Sharada D/O Babu Chavan vs Kgid Motor Branch Banglore And Anr
2021 Latest Caselaw 3457 Kant

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         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 21ST DAY OF OCTOBER, 2021

                       BEFORE

       THE HON'BLE MR.JUSTICE M.G.S.KAMAL

              MFA No. 31478/2013 (MV)

BETWEEN

SHIRUBAI @ SHARADA D/O BABU CHAVAN
AGE: 20 YEARS, OCC. NIL (EARLIER COOLIE)
R/O HALLUR, TQ. MUDDEBIHAL
                                           ...APPELLANT

(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE)

AND

1.    KGID MOTOR BRANCH BANGLORE
      THROUBGH KGID DIST. OFFICE, BIJAPUR

2.    EXECUTIVE ENGINEER KBJNL
      ARBC DIVISION, ALAMATTI
                                     ...RESPONDENTS

(BY SRI SANJAY M. JOSHI, ADVOCATE FOR R2;
R1 SERVED)

     THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 22.5.2012 PASSED IN
MVC NO. 107/2009 ON THE FILE OF THE ACCIDENT
CLAIMS TRIBUNAL NO.VIII AT MUDDEIBHAL, PARTLY
                                2




ALLOWING       THE     CLAIM       PETITION    AND   SEEKING
ENHANCEMENT OF COMPENSATION.


      THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-


                         JUDGMENT

This appeal is filed under Section 173(1) of the

Motor Vehicles Act, 1988 (for short 'M. V. Act') against the

judgment and award dated 22.05.2012 passed in MVC

No.107/2009 on the file of the Accident Claims Tribunal

No.VIII at Muddebihal (for short 'Tribunal').

2. The facts leading to filing of the present appeal

briefly stated are that, on 20.11.2008, at about 4.00 p.m.,

when the claimant was crossing the road near Nidagundi

village, a jeep bearing registration No.KA-28/M-4161

(henceforth referred as 'offending vehicle') belonging to

the respondent No.1 driven by its driver in a rash and

negligent manner, hit the claimant, causing the accident

and ran over the claimant. Due to the impact, the

claimant sustained injuries, such as, fracture of both bones

of both legs, fracture of ribs on both sides and fracture of

hip. She also sustained injuries to her eye and

disfigurement of face. The claimant has expended huge

amount towards her treatment. Thereupon, the claimant

has filed a claim petition under Section 166 of the M.V.Act

seeking compensation of `10,70,000/- on the ground that

she was hale and healthy, aged about 20 years and was

earning `6,000/- per month as collie and that the accident

was caused due to rash and negligent driving of the

offending vehicle by its driver, resulting in grievous injuries

to her and due to the same, she is not able to carry out

her regular work as she was doing earlier.

3. Upon service of notice, though respondent

Nos.1 to 3 have appeared through their counsel, only

respondent No.3 - Executive Engineer, KBJNL has filed its

statement of objections, denying the petition averments,

age, occupation and income of the claimant. It contended

that the accident occurred due to the sudden crossing of

the road by the claimant and the claimant alone was

responsible for the accident in question. It is further

contended that the driver of the offending vehicle was

having a valid and effective driving licence to drive the

same. That the vehicle was insured with the respondent

No.2 - KGID Motor Branch, Bengaluru and the policy was

valid. Hence, sought for dismissal of the claim petition.

4. The Tribunal based on the pleadings of the

parties, framed issues and recorded evidence. The

claimant examined herself as PW.1 and one doctor namely,

U.S.Nagur has been examined as PW.2. Eighteen

documents were exhibited as Exs.P1 to P18. No evidence

has been led in on behalf of the respondents.

5. The Tribunal after appreciating the evidence of

the parties held that the accident occurred due to rash and

negligent driving of the offending vehicle by its driver and

consequently held that the claimant is entitled for

compensation as follows:

       Pain and suffering               `40,000/-

       Loss of comforts                 `3,000/-

       Expenses for attender            `3,000/-

       Loss of marital status           `50,000/-

       Compensation                 for `20,000/-
       disfigurement
       Loss    of    future     income `64,800/-
       (300x12x18)
       Medical bills                    `1,29,000/-

       Total                            `3,09,800/-

6. The Tribunal directed the respondent No.2 -

KGID Motor Branch, Bengaluru to pay the compensation

together with interest at 6% per annum from the date of

petition till realization, within 90 days from the date of the

order. Aggrieved by the same, the claimant is before this

Court seeking enhancement of the compensation.

7. Heard the learned counsel for the parties and

perused the records.

8. The learned counsel for the appellant/claimant

reiterating the grounds urged in the appeal memorandum

submitted that the Tribunal has erred in assessing the

notional income of the claimant at `3,000/- per month

even while she was earning `6,000/- per month. He

submitted that the Tribunal has erred in assessing the

disability at 10% without taking into consideration the

disability assessed by the doctor at 30%. He further

submitted that considering the injuries suffered by the

claimant in the nature of fractures and disfigured face and

also injuries to her eye, resulting in she not being able to

open her eyelid, the Tribunal ought to have granted just

and sufficient compensation even under other heads. He

relied upon the judgment of the Apex Court in the case of

Jagdish vs. Mohan and Others reported in (2018) 4

SCC 571 and in the case of Erudhaya Priya vs. State

Express Transport Corporation Ltd., reported in 2020

SCC Online SC 601, justifying the claim for future

prospects. Hence, sought for allowing of the appeal.

9. On the other hand, the learned counsel for the

respondent No.2 submitted that the Tribunal has assessed

the compensation in just and sufficient manner. He

contended that the doctor, who examined as PW.2, has not

treated the claimant. Therefore, the disability assessed by

the Tribunal is just and proper. He also contended that the

accident is of the year 2008 and the claimant has not

made out any ground seeking enhancement of the

compensation. Hence, sought for dismissal of the appeal.

10. On thoughtful consideration of the submissions

made by the learned counsel for the parties, the only point

that arises for consideration is:

"Whether the claimant has made out a case for enhancement of the compensation?"

11. The accident in question is not in dispute. The

claimant has suffered the following injuries on account of

the accident as found at Ex.P5 - wound certificate:

"1. Abrasion of 8cm x 4cm over mandible and chin and bleeding was present.

2. Abrasion of 6cm x 5cm over left foot bleeding present.

3. Contused wound 4cm x 4cm over left parietal area and occipital.

CT scan made at Kerodi hospital dated 20.11.2008 reports subarachnoid hemorrhage and minimal subarachnoid hemorrhage.

Injuries 1 and 2 are simple and injury No.3 is grievous. All the above injuries are fresh may be caused in road traffic accident."

11. The disability certificate produced at Ex.P17

provides the following details:

"DISABILITY CERTIFICATE This is to certify that I have examined Kr.Sharadha @ Sarubai D/o. Babu Chawan R/o. Hullur LT age 21 years on 11.02.2012 at by clinic as out patient at Sl.No.8 and was having history of RTA and has sustained subarachnoid Hemorrhage, subdural hematoma, minimal intraventricular bleed, and multiple focal lessions, multiple hemorrhage foci and exonal injuries..

She has stated that she has taken treatment at Dr. Kerudi of Bagalkot and Dr. R.B.Patil of Hubli.

She has produced the wound certificate copy of the Dr. who has examined her. I have perused the said document.

And now he is complaining of, ¾ Diplopia.

¾ Repeated episode of headache.

         ¾ Partial     loss   of       recent   and   remote
            memory.

On examination of the said person, i found the following disabilities.

¾ Ptosis of left eye ¾ Unable to squint.

¾ Loss of power involving lateral rectus levetor palpabrae superioris.

The patient was referred for x-ray of skull.

On perusal of the x-ray of skull NAD, With the above observation, as per my experience and on the basis of clinical examination and as per the Doctor's Manual, i am of the opinion that the percentage of the disability to the whole body is 30%.

With this much of disability the injured cannot lead normal life, and she finds difficulty in walking and will find difficulty in day-to-day works. Hence, this certificate.

12. The claimant, who has suffered the injuries in

the road traffic accident as extracted hereinabove, was

apparently aged about 25 years at the time of the

accident. Due to the injuries, more particularly, injury in

the nature of disfigurement of face, she has remained

unmarried. Ex.P16 is the document evidencing the talks of

the marriage purported to have taken place prior to the

date of the accident. The fact remains that the claimant

has remained unmarried till date. Due to the injury to the

left eyelid of the claimant remains dropped/closed. The

Tribunal has declined to take the disability at 30% on the

premise that PW.2, who has deposed with regard to

disability is not the one, who treated the claimant.

Considering the nature of injuries suffered, disability

certificate at Ex.P17 and the evidence of PW.2, this Court

is of the considered view that the disability of the claimant

can be taken at 20% instead 10% taken by the Tribunal.

13. Though it is contended on behalf of the of the

claimant that she was earning `6,000/- per month as

coolie, no evidence to this effect has been produced. This

Court in the absence of any evidence regarding income,

takes into consideration the chart prepared by the High

Court Legal Services Authority. As per the chart, the

notional income of the victims of the road traffic accident

for the year 2008 has been notionally fixed at `4,250/- and

the same is taken into consideration in the present case

instead `3,000/- per month as taken by the Tribunal.

Having concluded the disability at 20%, the corresponding

enhancement with regard to the compensation needs to be

computed. In view of the law laid down by the Apex Court

in the case of Jagadish and in the case of Erudhaya

Priya (Supra), the claimant is entitled to future prospects.

Taking into consideration the material evidence and in

view of the law laid down by the Apex Court in the case of

National Insurance Company Ltd. vs. Pranay Sethi

reported in (2017) 16 SCC 680, the claimant being aged

about 25 years, is entitled to future prospects at 40% of

the notional income. Thus, the claimant is entitled to

compensation of `2,57,040/- (4250+40%x12x18x20%)

towards loss of future income.

14. The Tribunal has awarded `40,000/- under the

head of pain and suffering. Claimant has undergone squint

eye surgery. This Court deems it necessary to award

additional sum of `10,000/- to make it `50,000/- instead

`40,000/- awarded by the Tribunal.

15. The Tribunal has awarded `3,000/- towards

loss of comforts. Considering the nature of injuries

suffered, an addition of `27,000/- needs to be awarded for

making it `30,000/- instead `3,000/- awarded by the

Tribunal.

16. The Tribunal has awarded `3,000/- towards

attendant charges and the same is maintained as just and

proper.

17. The Tribunal has awarded `50,000/- towards

loss of marital status. The fact remains that the claimant

has suffered disfigurement of face and she is not in a

position to open her eyelash. The accident is of the year

2008 and though initial talks of the marriage of the

claimant was fixed, due to the accident, the same seems

to have been broken. Hence, this Court is of the opinion

that addition of `1,00,000/- needs to be awarded under

this head. Thus, the claimant is entitled to a sum of

`1,50,000/- under the head of loss of marital status

instead `50,000/- awarded by the Tribunal.

18. The compensation awarded under the head of

disfigurement at `20,000/- is maintained in view of the

additional compensation awarded under other heads.

19. The Tribunal has awarded `1,29,000/- towards

medical bills and the same is maintained as just and

proper. Thus, the claimant is entitled to enhanced

compensation as follows:

Heads                  By Tribunal           By this Court
Pain and suffering     `40,000/-             `50,000/-
Loss of comforts       `3,000/-              `30,000/-
Expenses         for   `3,000/-              `3,000/-
attender
Loss of marital        `50,000/-             `1,50,000/-
status
Compensation for       `20,000/-             `20,000/-
disfigurement
Loss    of    future   `64,800/-             `2,57,040/-
income
Medical bills          `1,29,000/-           `1,29,000/-
Total                  `3,09,800/-           `6,39,040/-

20. On the enhanced compensation, the claimant

is entitled for interest at 6% per annum from the date of

claimant till realization. Hence, the above point is

answered and following order is passed:

ORDER

a. The appeal filed by the

claimant/appellant is allowed in part and the

judgment and order of the Tribunal in MVC

No.107/2009 is modified.

b. The appellant/claimant is entitled

for enhanced compensation of `6,39,040/-

instead `3,09,800/- awarded by the Tribunal

together with interest at 6% per annum from

the date of petition till its realization.

c. The respondent No.1 - KGID Motor

Branch, Bengaluru is directed to pay the

compensation within eight weeks from the date

of receipt of a certified copy of this judgment.

Sd/-

JUDGE Srt