Smt. Nagamma vs Raju
2022 Latest Caselaw 171 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 5TH DAY OF JANUARY, 2022

                          BEFORE

        THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                 M.F.A.No.1354/2019 (MV)
BETWEEN:

SMT. NAGAMMA
W/O CHIKKABORAIAH,
AGED ABOUT 45 YEARS,
R/AT CHIKKENAHALLI VILLAGE,
ANJANAPURA POST,
KAILANCHA HOBLI,
RAMANAGARA TALUK,
PIN-562159.                                ...APPELLANT

[BY SRI.SHANTHARAJ K, ADVOCATE]

AND:

1.     RAJU
       S/O. NINGEGOWDA,
       AGED MAJOR,
       R/AT NO.8, DODDANAHALLI,
       LAKKOJANAHALLI POST,
       KASABA HOBLI,
       CHANNAPATNA TALUK,
       RAMANAGARA DISTRICT,
       PIN-562160.

2.     NATIONAL GENERAL INSURANCE
       COMPANY LIMITED,
       BY ITS MANAGER,
       2ND FLOOR, SHUBHARAM COMPLEX,
       M.G.ROAD, BENGALURU-560001.       ...RESPONDENTS

[BY SMT. GEETHARAJ, ADVOCATE FOR R2;
 NOTICE TO R2 IS DISPENSED WITH V/O/D:18.02.2019]
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      THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED:
15.02.2018 PASSED IN MVC NO.6622/2017 ON THE FILE OF THE
III ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL
CAUSES, BENGALURU (SCCH-18), PARTLY ALLOWING THE
CLAIM    PETITION   FOR  COMPENSATION    AND    SEEKING
ENHANCEMENT OF COMPENSATION.

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


                            JUDGMENT

Challenging the impugned judgment and award dated

15.12.2018 passed by the III Addl. Judge and Motor Accident

Claims Tribunal, Court of Small Causes, Bengaluru (SCCH-18)

(hereinafter referred to as 'tribunal' for short), in MVC

No.6622/2017, appellant has preferred this appeal under Section

173 of the Motor Vehicles Act, ('M.V. Act' for short) seeking

enhancement of compensation.

2. Brief facts as stated are that on 23.10.2017 at about

6.55 p.m. claimant was standing near Doddaiah Provision Store,

Chikkenahalli, at that time, rider of Hero Honda Motor Cycle

bearing Reg.No.KA-42-U-3465 came in rash and negligent

manner from Bannikupe-Ramanagara dashed against claimant.

As a result, she fell down and sustained grievous injuries.

Immediately, she was taken to Government Hospital,

Ramanagara and thereafter, to Narayana Hospital, Ramanagara

for treatment.

Despite taking inpatient treatment and spending huge

amount, she sustained permanent physical disability and lost

earning capacity. Hence, she filed claim petition under Section

166 of the M.V.Act, against owner and insurer of offending

vehicle seeking compensation of Rs.35,00,000/-.

3. On service of notice, respondents no.1 and 2 filed

separate written statements.

Respondent no.1-owner while denying claim petition

averments including age, occupation, income and disability of

claimant submitted that as vehicle was insured with respondent

no.2 and policy was in force at the time of accident, he was not

liable to pay compensation.

Respondent no.2 in its objection statement denied claim

petition averments, but admitted issuance of insurance policy. It

alleged violation of terms and conditions of policy, as driver of

offending vehicle was not holding valid and effective driving

licence on date of accident. Claim petition was also opposed as

being exorbitant.

4. Based on pleadings, tribunal framed following issues:

1. Whether the petitioner proves that, she had sustained grievous injuries in an accident that was occurred due to rash and negligent riding of the rider of the motor cycle bearing no.KA- 42-U-3465 on 23.10.2017 at about 6.55 p.m. near Doddaiah Housem, Chikkenaghalli, KailanchaHobli, Ramanagara Taluk, Ramanagara District?

2. Whether the petitioner is entitled for compensation as prayed for? If so, at what rate? From whom?

3. What order or award?

5. In support of his case, claimant examined herself as

PW1 and doctor as PW2 and Ex.P1 to P.13 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 and awarding compensation of

Rs.3,07,850/- with interest at 8% per annum and directed

respondent nos. 1 and 2 to pay the same.

7. Not satisfied with quantum of award, claimant is in

appeal.

8. Sri Shantharaj K, learned counsel appearing for

appellant submitted that award passed by tribunal was not

commensurate to facts of case and evidence on record.

Assessment of compensation was inadequate. He submitted that

claimant was 43 years of age and doing agriculture, earning

Rs.20,000/- per month. However, tribunal considered Rs.7,500/-

as notional income of claimant which was meager. Learned

counsel further submitted that claimant sustained fracture of

both bones of left leg assessed by PW.2-Dr.Madhusudhan to an

extent of 15% disability to the limb and 19% to whole body as

fractures were mal-united. But tribunal considered it at 12%

which was meager. Learned counsel further submitted that

compensation awarded towards pain and suffering, loss of

amenities, loss of future prospects are on lower side required

enhancement.

9. On the other hand, Smt. Geetha Raj, learned counsel

for respondent no.2 submitted that tribunal awarded interest at

8% per annum which was very high and took her income at

Rs.7,500 p.m. , no enhancement was called for.

10. From above submissions, occurrence of accident due

to rash and negligent riding of rider of insured vehicle causing

grievous injuries to claimant is not in dispute. Issuance of policy

and its coverage as on date of accident is also not in dispute.

Loss of earning capacity as well as liability of insurer to pay

compensation are also not in dispute as insurer has not preferred

any appeal. Only claimant is in appeal seeking enhancement of

compensation. Thus, the point that arises for consideration in

this appeal is:

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

11. In the claim petition, claimant has stated that she was

43 years of age, doing agriculture and earning Rs.20,000/- per

month. However, she failed to prove same. In the absence of

specific evidence, tribunal would be justified in assessing

monthly income on notional basis. Accident was of the year

2017. Notional income prescribed by Karnataka State Legal

Services Committee for settlement of cases before Lok - Adalat

for 2017 is Rs.11,000/-. Therefore, tribunal was not justified in

taking it at Rs.7,500/-. It has to be considered at Rs.11,000/-

instead.

12. In order to establish permanent physical disability and

consequent loss of earning capacity, claimant has examined

Dr.Madhusudhan as PW.2. PW.2 deposed about injuries and

disability sustained by claimant. He has stated claimant

underwent ORIF with inter locking nail for left tibia and she

sustained restriction in movement of knee. She was unable to

bend her knees beyond 125 degrees. PW.2 further submitted

that there was a mal-union of fracture and as claimant was

coolie by profession, who normally requires to squat and work.

Claimant sustained whole body disability at 19%. However,

tribunal has taken 12% without assigning any adequate reasons.

As assessment by PW.2 is with respect to avocation, it has to be

accepted. Hence, 19% is considered as functional disability of

claimant.

13. As age of claimant was 43 years, multiplier applicable

would be '14'. Therefore, loss of future earning would be :

Rs.11,000 x 19% x 12 x 14 = Rs.3,51,120/-

14. Tribunal has awarded Rs.40,000/- towards 'Pain and

suffering'. Considering the fact that claimant sustained fracture

of both bones, same appears to be inadequate. Hence,

Rs.60,000/- is awarded towards 'pain and suffering'. Further,

tribunal has awarded Rs.22,500/- towards loss of income during

laid up period at Rs.7,500/- for three months. In view of

reassessment of monthly income, Rs.33,000/- is awarded

towards loss of income during laid up period.

15. Claimant has produced medical bills for total of

Rs.49,145/-. Since entire medical expenses are reimbursed,

there is no scope for interference. The tribunal has awarded

Rs.10,000/- towards loss of amenities which appears to be

meager. As per evidence of PW.2-Doctor, claimant sustained

grievous fractures and there is restriction of movement of her

knee due to mal-union. Hence. Rs.40,000/- is awarded towards

loss of amenities.

16. Claimant has taken inpatient treatment for a period of

five days in Narayana Hospital, Ramanagar. Considering the

same, tribunal has awarded a sum of Rs.20,000/- towards

'conveyance, attendant, nourishing food and other incidental

expenses'. As appears adequate, there is no scope for

enhancement.

17. The tribunal has also awarded Rs.15,000/- towards

'future medical expenses'. There is specific evidence of PW2 to

support the same. Hence, there is no scope for interference.

18. Thus, total re-assessed compensation would be as

follows:

            1.      Pain and Suffering               Rs.60000
            2.      Loss of income during              33,000
                    laid up period and rest
                    period
            2.      Medical Expenses                Rs.49,145
            4       Loss of future earning           3,51,120
                    Loss of amenities                  40,000
            3.      Attendant, Nourishment
                    and          conveyance         Rs.20,000
                    charges
            7.      Future           medical        Rs.15,000
                    expenses
                              Total              Rs.5,68,265

19. Accordingly, point no.1 is answered in the affirmative

as above. The claimant is held entitled for a total compensation

of Rs.5,68,265/- as against Rs.3,07,850/- awarded by the

tribunal.

20. Tribunal has awarded interest at the rate of 8% p.a.

In view of the decision of this Court in the case of Sriram

General Insurance Company Limited Vs Smt. Laxmi and

others reported in (2018) 4 AKR 808 has held that the rate of

interest in accident claims has to be @ 6 % per annum as per

Section 34 of the Code of Civil Procedure, 1908. But insurer has

not filed appeal against the same. Therefore without disturbing

the rate of interest awarded by the tribunal, it is held that

insurer would be liable to pay the interest at the rate of 6% per

annum on enhanced compensation.

      21. Hence, following

                                  ORDER

      i.    Appeal is allowed in part.


     ii.    Total compensation awarded by Tribunal is
            modified    and   enhanced      to   Rs.5,68,265/-

(Rupees Five Lakhs, Sixty-eight Thousands Two hundreds and Sixty five only) as against Rs.3,07,850/-. Enhanced compensation shall carry interest at the rate of 6% per annum, without disturbing the rate of interest at 8% per annum on Rs.3,07,850/- awarded by the Tribunal from date of petition till its realization.

iii. Out of enhanced compensation, tribunal is directed to release 50% in favour of claimant and keep remaining amount in fixed deposit in any Nationalised Bank or Post Office for a period of three years.

iv. Insurance company shall deposit the award amount determined as aforesaid before Tribunal within 90 days from date of receipt of certified copy of judgment.

v. Draw modified award accordingly and transfer original records to jurisdictional Tribunal forthwith.

Sd/-

JUDGE

JS/-