Karnataka High Court

Smt Seethamma vs The New India Assurance Company ... on 6 July, 2022

Bench: H T Prasad

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 6TH DAY OF JULY 2022

                        BEFORE

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

               MFA No.272 OF 2020(MV)
BETWEEN:

SMT.SEETHAMMA
W/O. LATE RAMAPPA
AGED ABOUT 60 YEARS
R/AT NO.119, 7TH PHASE
NISARGA LAYOUT
KANNURAHALLI MAIN ROAD
HOSKOTE TOWN
BENGALURU DISTRICT PIN-561203.
                                         ...APPELLANT
(BY SRI.GURUDEV PRASAD K T., ADV.)

AND:

1.     THE NEW INDIA ASSURANCE COMPANY LTD.,
       BY ITS MANAGER
       TP. CLAIMS HUB
       MAHALAKSHMI CHAMBERS
       2ND FLOOR, M.G. ROAD
       BENGALURU-560001.

2.     MR. P. SRINIVAS
       S/O. PAPANNA N
       R/AT RAMASANDRA VILLAGE
       BYRANAHALLI, KOLAR TALUK
       KOLAR DISTRICT PIN-560091.
                                      ...RESPONDENTS
(BY SRI.KRISHNA KISHORE S., ADV.)
                            2




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
11.06.2019 PASSED IN MVC NO. 3794/2018 ON THE FILE
OF THE XVII ADDITIONAL JUDGE, COURT OF SMALL
CAUSES AND MEMBER, MACT, MAYO HAL UNIT,
BENGALURU (SCCH-21), PARTLY ALLOWING THE CLAIM
PETITION    FOR   COMPENSATION     AND    SEEKING
ENHANCEMENT OF COMPENSATION

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

                     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 and decree dated 11.06.2019 passed

by the XVII Additional Judge, Court of Small Causes &

Member, MACT, Bengaluru in MVC No.3794/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 24.04.2018 at about 08.30

A.M., while the claimant was proceeding in the

Motorcycle bearing Registration No.KA-53-EQ-4131 as

a pillion rider, on Bandarahalli Village road, Mulbagal

Taluk, Kolar, the rider of the said motorcycle by riding

it in a rash and negligent manner lost control and fell

into the ditch. 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 Nos.1

and 2 have appeared through counsel and filed written

statement in which the averments made in the

petition were denied. The age, avocation and income

of the claimant and the medical expenses are denied.

It was further pleaded that the quantum of

compensation claimed by the claimant is exorbitant.

Hence, they sought for dismissal of the petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant herself was

examined as PW-1 and Dr. Balakrishna was examined

as PW-2 and got exhibited documents namely Ex.P1

to Ex.P20. On behalf of the respondents, neither any

witness was examined nor any document was

produced. 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.4,52,459/- along with interest at the rate of 9%

p.a. and directed the Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, this 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 agriculture, milk vending and seri-culture

and earning Rs.20,000/- per month, but the Tribunal

has taken the notional income as merely as

Rs.8,000/- per month.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

61% to left lower limb and 20% to whole body. But

the Tribunal has erred in taking the whole body

disability at only 15%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. She was treated as

inpatient for a period of 23 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 granted by the Tribunal under the

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

other heads 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.20,000/- 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, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

61% to left lower limb and 20% 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 compensation.

Lastly, in view of judgment of the Division Bench

of this Court in the case of MS.JOYEETA BOSE AND

OTHERS vs. VENKATESHAN.V AND OTHERS (MFA

5896/2018 and connected matters disposed of on

24.8.2020), the claimants are entitled for 6% interest

but the Tribunal has granted 9% interest is on the

higher side. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the records.

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.20,000/- per month. She has not produced any

documents to prove her income. Therefore, the

notional income has to be assessed as per the

guidelines issued by the Karnataka State Legal

Services Authority. Since the accident has taken place

in the year 2018, the notional income has to be taken

at Rs.12,500/- p.m.

As per wound certificate, the claimant has

sustained fracture of distal end of left tibia

(comminuted), segmental fracture of fibula and heel

pad avulsion of left foot. PW-2, the doctor has stated

in his evidence that the claimant has suffered

disability of 61% to left lower limb and 20% to whole

body. Therefore, taking into consideration the

deposition of the doctor, PW-2 and injuries mentioned

in the wound certificate, I am of the opinion that the

whole body disability can be assessed at 20%. The

claimant is aged about 72 years at the time of the

accident and multiplier applicable to his age group is

5. Thus, the claimant is entitled for compensation of

Rs.1,50,000/- (Rs.12,500*12*5*20%) 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 04 months. Therefore, the claimant is entitled for

compensation of Rs.50,000/- (Rs.12,500*4 months)

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

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He was

treated as inpatient for more than 23 days in the

hospital. He has suffered lot of pain during treatment

and he has to suffer with the disability stated by the

doctor throughout his life. Considering the same, I am

inclined to enhance the compensation awarded by the

Tribunal under the head of 'loss of amenities' from

Rs.15,000/- to Rs.40,000/- and 'pain and sufferings'

from Rs.45,000/- to Rs.55,000/-..

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 45,000 55,000 Medical expenses 2,35,459 2,35,459 Food, nourishment, 20,000 20,000 conveyance and attendant charges Loss of income during 40,000 50,000 laid up period Loss of amenities 15,000 40,000 Loss of future income 72,000 1,50,000

Future medical expenses 25,000 25,000 Total 4,52,459 5,75,459

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.5,75,459/- against Rs.4,52,459/- awarded by

the Tribunal.

In view of judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE', the

enhanced compensation shall carry interest at 6% per

annum.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 9%