Smt Lakshmidevi @ Lakshmidevamma vs Sri Nagaraju N
2022 Latest Caselaw 10307 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 5TH DAY OF JULY 2022

                     BEFORE

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

          MFA No.3603 OF 2020(MV)

BETWEEN

SMT LAKSHMIDEVI @
LAKSHMIDEVAMMA
W/O D N RANGANATHA
D/O RANGAIAH
AGED ABOUT 28 YEARS
R/O BEHIND MECCA RICE MILL
MEGALA PETE SIRA TOWN.
                                    ...APPELLANT

(BY SRI.SATHISHA T., ADV.)

AND

1.    SRI NAGARAJU N
      S/O NARASAPPA
      AGED ABOUT 40 YEARS
      R/A BRAMHASANDRA
      KALLAMBELLA HOBLI
      SIRA TALUK
      TUMAKURU DISTRICT.

2.    THE MANAGER
      RELIANCE GENERAL INSURANCE
      COMPANY LTD.
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     NO 1 AND 2, 1ST FLOOR
     MAGANUR COMMERCIAL COMPLEX
     NEAR KSRTC BUS STAND
     B D ROAD, CHITRADURGA 577501
     NOW REPRESENTED BY
     THE MANAGER
     RELIANCE GENERAL INSURANCE
     COMPANY LTD,
     REGIONAL OFFICE
     EAST WING NO 28
     CENTENARY BUILDING
     M G ROAD, BENGALURU 560001.
                               ...RESPONDENTS

(BY SRI.D. VIJAYAKUMAR, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH
V/O DATED: 22.03.2021)

    THIS MFA IS FILED UNDER SECTION.173(1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD
DT.12.04.2019 PASSED IN MVC NO.642/2017 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
ADDITIONAL MACT, SIRA, 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:
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                      JUDGMENT

This appeal under Section 173(1) of Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act') has been filed by the claimant being aggrieved

by the judgment dated 12.4.2019 passed by MACT,

Sira in MVC 642/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 30.09.2016 when the

claimant along with another were standing on Sharada

Hospital Road, near Kariyappa Plaining Machine,

Santhepete, Sira Town, Santhepete, Sira Town, at

that time, motorcycle bearing registration No.KA-06-

EL-7112 being ridden by its rider at a high speed and

in a rash and negligent manner, dashed to the vehicle

of the claimant. As a result of the aforesaid accident,

the claimant 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 riding of the offending vehicle by

its rider.

4. On service of notice, the respondent No.2

appeared through counsel and filed written statement

in which the averments made in the petition were

denied.

The respondent No.1 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 himself was

examined as PW-2 and Dr.Sridhar was examined as

PW-3 and got exhibited documents namely Ex.P1 to

Ex.P18. On behalf of the respondents, one witness

was examined as RW-1 and got exhibited documents

namely Ex.R1 to Ex.R2. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident

took place on account of rash and negligent riding of

the offending vehicle by its rider, as a result of which,

the claimant sustained injuries. The Tribunal further

held that the claimant is entitled to a compensation of

Rs.355,200/- along with interest at the rate of 6%

p.a. and directed the Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, the present 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 tailoring work and earning Rs.15,000/- per

month, but the Tribunal has taken the notional income

as merely as Rs.8,000/- per month.

Secondly, the claimant has examined the doctor

as PW-3. The doctor in his evidence has stated that

the claimant has suffered disability of 54% to

particular limb and 18% to whole body. But the

Tribunal has taken the whole body disability at 15%,

which is on the lower side.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. She was treated as

inpatient for a period of 36 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 awarded by the Tribunal under the

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

other incidental expenses are on the lower side.

Hence, he sought for allowing the appeal.

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.15,000/- per month, She has not

produced any documents to establish her income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Secondly, the doctor in his evidence has stated

that the claimant has suffered disability of 54% to

particular limb and 18% to whole body. The Tribunal

considering the injuries sustained by the claimant, has

rightly assessed the whole body disability at 15%.

Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the overall compensation awarded by the

Tribunal is just and reasonable 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 of the Tribunal.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent riding of the offending

vehicle by its rider.

The claimant claims that she was earning

Rs.15,000/- per month. She has not produced any

documents to prove her income. Therefore, in the

absence of proof of income, notional income has to be

assessed. As per the guidelines issued by the

Karnataka State Legal Services Authority, for the

accident taken place in the year 2016, the notional

income has to be taken at Rs.9,500/- p.m.

As per wound certificate, the claimant has

sustained fracture of both bones of left leg lower 1/3rd

with malunion, implant in situ, post traumatic

arthritis, restricted painful movements and left ankle

and left knee joint, limping and shortening,

constractures. The doctor in his evidence has stated

that the claimant has suffered disability of 54% to

particular limb and 18% to whole body. Therefore,

taking into consideration the deposition of the doctor

and injuries mentioned in the wound certificate, the

whole body disability can be taken at 18%. The

claimant is aged about 25 years at the time of the

accident and multiplier applicable to her age group is

'18'. Thus, the claimant is entitled for compensation of

Rs.369,360/- (Rs.9,500*12*18*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.28,500/- (Rs.9500*3 months)

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

The claimant was treated as inpatient for more

than 32 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.10,000/- to Rs.15,000/-.

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.20,000/- to Rs.30,000/- and under the head of

'pain and sufferings' from Rs.30,000/- to Rs.40,000/-.

Considering the nature of injuries, 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 30,000 40,000 Medical and incidental 10,000 15,000 expenses Loss of income during 16,000 28,500 laid up period Loss of amenities 20,000 30,000 Loss of future income 259,200 369,360 Future medical expenses 20,000 20,000 Total 355,200 502,860

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.502,860/-.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 6%

p.a. 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'.

Sd/-

JUDGE

DM