Smt. Jyothi Lakshmi P. S vs M/S. United India Insurance Co. ...
2022 Latest Caselaw 10395 Kant

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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.4864 OF 2020 (MV)

BETWEEN

SMT. JYOTHI LAKSHMI P. S.
W/O P N SHIVAKUMAR
AGED ABOUT 46 YEARS
R/AT NO.1700, 5TH A CROSS
2ND BLOCK, BANASHANKARI IST STAGE
BENGALURU SOUTH
BENGALURU-560050.

                                     ...APPELLANT

(BY SRI.GURUDEV PRASAD K T., adv.)

AND

1.    M/S. UNITED INDIA INSURANCE CO. LTD.,
      T P CLAIMS HUB
      5TH AND 6TH FLOOR
      KRISHI BHAVANA
      HUDSON CIRCLE
      BENGALURU-560002.

2.    RAJESH P
      S/O PANCHALINGE GOWDA
      R/AT PANCHALINGE GOWDANA DODDI
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    KEREGODU HOBLI
    MANDYA TALUK
    MANDYA DISTRICT-571446.

                                    ...RESPONDENTS

(BY SMT. HARINI SHIVANANDA, ADV. FOR R1:
NOTICE TO R2 IS DISPENSED WITH
V/O DATED: 06.07.2022)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD
DT.04.02.2020 PASSED IN MVC NO.1384/2019 ON
THE FILE OF THE XVI ADDITIONAL JUDGE, COURT OF
SMALL CAUSES, MEMBER, MACT, BENGALURU,
(SCCH-14), PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THIS MFA COMING ON FOR ORDERS 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 dated 4.2.2020 passed by MACT,

Bengaluru in MVC 1384/2019.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 1.3.2019 when the claimant

was proceeding as a rider in Scooter bearing

registration No.KA-05-HJ-6060 on Kathriguppe Main

road, near Vidya Peeta Circle, at that time, Ambulance

bearing registration No.KA-11-4060 being driven by

its driver 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 driving of the offending vehicle by

its driver.

4. On service of notice, the respondent No.1

appeared through counsel and filed written statement

in which the averments made in the petition were

denied.

The respondent No.2 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-1 and Dr.R.Shashikanth was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P16. 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

driving of the offending vehicle by its driver, as a

result of which, the claimant sustained injuries. The

Tribunal further held that the claimant is entitled to a

compensation of Rs.244,800/- along with interest at

the rate of 7% 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.30,000/- 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-2. The doctor in his evidence has stated that

the claimant has suffered disability of 42% to

particular limb and 14% to whole body. But the

Tribunal has taken the whole body disability at 10%,

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 6 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.30,000/- per month, he has not

produced any documents to establish his 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 42% to

particular limb and 14% to whole body. The Tribunal

considering the injuries sustained by the claimant, has

rightly assessed the whole body disability at 10%.

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.

Fourthly, the interest awarded by the Tribunal at

7% p.a. on the compensation amount is on the higher

side. 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 driving of the offending

vehicle by its driver.

The claimant claims that she was earning

Rs.30,000/- 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 2019, the notional

income has to be taken at Rs.14,000/- p.m.

As per wound certificate, the claimant has

sustained blunt injury to the left knee with fracture of

lateral condyle of the left tibia. The doctor in his

evidence has stated that the claimant has suffered

disability of 42% to particular limb and 14% to whole

body. He has further stated that the claimant

complains pain in the left leg knee, difficulty in

standing for long, walking for a distance, running,

climbing stairs, squatting and using Indian toiler

unable to work like before as tailor by profession.

Therefore, taking into consideration the deposition of

the doctor and injuries mentioned in the wound

certificate, the Tribunal has rightly taken the whole

body disability at 14%. The claimant is aged about 46

years at the time of the accident and multiplier

applicable to her age group is '13'. Thus, the claimant

is entitled for compensation of Rs.305,760/-

(Rs.14,000*12*13*14%) 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.42,000/- (Rs.14,000*3 months)

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

The claimant was treated as inpatient for more

than 6 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.6,000/- to Rs.12,000/-.

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.25,000/- to Rs.40,000/- 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 expenses 19,963 19,963 Food, nourishment, 6,000 12,000 conveyance and attendant charges Loss of income during 24,000 42,000 laid up period Loss of amenities 25,000 40,000 Loss of future income 124,800 305,760 Future medical expenses 15,000 15,000 Total 244,763 474,723

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.474,723/-.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 7%

p.a. (enhanced amount shall carry interest at 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.

Sd/-

JUDGE

DM