Meenakshi vs Halagegowda
2022 Latest Caselaw 1738 Kant

        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 4TH DAY OF FEBRUARY, 2022

                           BEFORE

         THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                M.F.A.No.7138 OF 2019 (MV-I)

BETWEEN:

MEENAKSHI
W/O VENKATESH, AGED ABOUT 37 YEARS
R/A KADAVINA HOSAHALLI VILLAGE
H.N.PURA TALUK
HASSAN DISTRICT-573 201.
NOW R/A, C/O KRISHNA KUMAR
HOUSE NO.222, BOOVANAHALLI VILLAGE
KASABA HOBLI, HASSAN -573 201.
                                                 ...APPELLANT
[BY SRI. CHETHAN B., ADVOCATE (VC)]

AND:

1.     HALAGEGOWDA
       S/O HONNEGOWDA, MAJOR
       R/A: ANACHIHALLI VILLAGE
       KANDALI POST, HASSAN TALUK
       HASSAN DISTRICT-573 201.

2.     THE MANAGER
       TATA AIG GENERAL INSURANCE COMPANY LTD.,
       2ND FLOOR, J.P. & J.V.JAMBOOKESHWARA ARCADE
       NO.69, MILLER ROAD, BENGALURU-560 052.
                                               ...RESPONDENTS
                                  2




(BY SRI. RAVI S.SAMPRATHI, ADVOCATE FOR R2 (VC);
     NOTICE TO R1 IS DISPENSED WITH V/O DATED 24.11.2021)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF M.V.ACT
AGAINST THE JUDGMENT AND AWARD DATED 05.07.2019 PASSED
IN MVC NO.986/2017 ON THE FILE OF THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MACT,
HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPESATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

                            JUDGMENT

Challenging impugned judgment and award dated 05.07.2019

passed in MVC No.986/2017 by II Addl. District & Sessions Judge

and Addl. MACT Hassan, ( for short 'Tribunal'), claimant is in appeal

seeking enhancement of compensation.

2. Brief facts as stated are that on 19.07.2013 at about 8.45

p.m. Smt. Meenakshi was traveling in an autorikshaw bearing

registration No.KA-13-A-4560 to go to Coffee Curing Works. Near

railway bridge on B.M. road, Hassan, it met with accident when its

driver drove it in rash and negligent manner and auto toppled down

causing grievous injuries to her. She was shifted to Government

hospital, Hassan and later to NIMHANS, Bengaluru. Despite taking

treatment, she sustained physical permanent disability and

reduction in earning capacity. Claiming compensation for the same,

she filed claim petition under Section 166 of Motor Vehicles Act ,

1988 against owner and insurer of autorikshaw.

3. On service of notice, respondent no.1 did not contest, he

was placed ex-parte. Respondent no.2 - insurer filed objections

denying claim petition averments. It denied age, occupation,

income and disability sustained by claimant. It admitted issuance of

insurance policy subject to terms and conditions and alleged

violation of same. Claim petition was also opposed as being

excessive.

4. Based on pleadings, tribunal framed following issues:

1. Whether the petitioner proves that, she sustained grievous injury on 19.02.2013 at about 8.45 a.m., near Railway Bridge, B.M.Road, in front of Dairy quarters, Hassan, the driver drove the Autorikshaw bearing No.KA-13-A-4560 in rash and negligent manner and caused the accident, due to which the petitioner sustained injury?

     2.      Whether   the     petitioner is     entitled    for
             compensation? If so, from whom?





            3.      What order or award?

5. In order to establish her case, claimant examined herself

as PW1. She also examined Dr. Mosin as P.W.2. Exhibits P1 to 10

were marked. Respondents did not lead any evidence.

6. On consideration, tribunal answered issue no.1 in

affirmative, issue no.2 partly in affirmative and issue no.3 by

allowing claim petition in part awarding compensation of

Rs.1,97,000/- with interest at 6% per annum payable by

respondent no.2. Not satisfied with quantum of compensation,

claimant is in appeal.

7. Sri Chethan B, learned counsel for claimant - appellant

submitted that as on date of accident, claimant was aged 35 years,

doing private service and earning Rs.15,000/- per month. In the

accident, she sustained fracture of spinal cord and underwent

surgery. However, tribunal awarded meager amount of Rs.20,000/-

towards 'pain and suffering'. Though, it assessed monthly income of

claimant on notional basis at Rs.8,000/- per month, it awarded

Rs.10,000/- only towards 'loss of income during laid up period'.

Despite evidence of PW.2 that claimant sustained permanent

physical disability of 30.68%, tribunal did not award any

compensation towards 'loss of amenities'. On the said grounds,

learned counsel sought for enhancement of compensation.

8. On the other hand, Sri Ravi S Samprathi, learned counsel

for respondent no.2 - insurer supported judgment and award,

opposed enhancement. It was submitted that claimant did not lead

any evidence to substantiate her occupation, so also failed to

establish her monthly income. Moreover, disability assessed by

PW.2 in respect of spine and as whole body disability would not be

substantial. On over all consideration, compensation awarded was

justified and did not call for enhancement.

9. From above submission, occurrence of accident due to

rash and negligent driving of insured vehicle by its driver and

claimant sustaining injuries/disability in the accident are not in

dispute. Issuance of insurance policy, its validity as on date of

accident is also not in dispute. Tribunal held that accident occurred

due to rash and negligent driving of autorikshaw by its driver; that

it was insured with insurer and that driver was having valid and

effective driving licence. It assessed age of claimant as 35 years,

considered notional monthly income at Rs.8,000/-, applying

multiplier '16' and by taking loss of earning capacity at 10%

awarded total compensation of Rs.1,97,000/-. It held insurer liable

to pay same. Insurer has not challenged award. Only claimant is in

appeal seeking enhancement. Therefore, liability of insurer to pay

compensation is not in dispute.

10. Thus, only point that arises for consideration in this

appeal is:

"Whether claimant is entitled for enhancement of compensation as sought for?"

11. In order to establish injuries and disability sustained,

claimant produced wound certificate, medical bills, prescription and

valuation sheet as per Exs.P.6, P.8 to P.10.

Ex.P.10 indicates that claimant sustained fracture of cervical

spine, due to which there is reduction of neck muscle flexion and

extension. Tribunal awarded Rs.20,000/- towards 'pain and

suffering'. Considering the fact that claimant was aged about 35

years, sustained fracture of cervical spine, said award will be

inadequate. It would be appropriate to award Rs.40,000/- towards

'pain and suffering'. Further, claimant produced medical bills for

Rs.3,570/- which is awarded by tribunal. As there is complete

reimbursement, there is no scope for enhancement.

12. Insofar as monthly income of claimant is concerned, she

has stated that she was in private service, earning Rs.15,000/- per

month. No evidence is produced to substantiate same. Under the

circumstances, tribunal would be justified in taking notional

monthly income. Notional income for the year 2013 adopted by

Karnataka Legal Services Committee for settlement of cases before

Lok-Adalat is Rs.8,000/-. Hence, there is no scope for enhancement

of monthly income.

Tribunal has awarded Rs.10,000/- towards 'loss of earning

during treatment and attendant charges'. Admittedly, claimant was

inpatient for 14 days. Normally fractures need three months to

heal. Therefore, claimant would be entitled to 'loss of income during

laid up period' for three months i.e., Rs.8,000 X 3 = Rs.24,000/-.

13. Tribunal has referred evidence of PW.2 for assessment of

'loss of earning capacity'. PW.2 deposed that claimant was suffering

from permanent disability to an extent of 30.6%. Ex.P.10 indicates

that assessment is by adding disability caused to various limbs. As

physical disability sustained is distributed between various parts in

small extents, assessment of 'loss of earning capacity' at 10% does

not appear to be inadequate. Thus, there is no scope for

interference towards 'future loss of income'.

Tribunal awarded Rs.5,000/- towards 'conveyance charges'

and Rs.4,800/- towards 'nourishment charges'. Considering

duration of 14 days as inpatient, same appears to be just and

proper, does not call for interference.

14. As per evidence of PW.2, claimant sustained permanent

physical disability to cervical spine. Tribunal has not awarded any

compensation towards 'loss of amenities'. Considering the disability

assessed in Ex.P.10, it would be just and proper to award

Rs.25,000/-. Thus, total compensation would be Rs.2,55,970/-

rounded of to Rs.2,56,000/-. Point for consideration is answered

partly in affirmative.

In the result, I pass following:

ORDER

Appeal is allowed in part with cost.

           Claimant    is     held   entitled    for    enhanced

       compensation      of    Rs.2,56,000/-       as    against

Rs.1,97,000/- awarded by tribunal, with interest at

6% per annum from date of petition till deposit.

       There   is   enhancement          of   compensation    by

       Rs.59,000/-.

Respondent - insurer is directed to deposit the

same within six weeks.

On deposit, entire enhanced compensation is

ordered to be released in favour of claimant.

Registry to draw modified decree and transmit

trial court records forthwith.

Sd/-

JUDGE

Psg*