Karnataka High Court
Mrs. Shanthamma vs H. K. Madhu on 7 July, 2022
Bench: J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
M.F.A.NO.1435 OF 2016 (MV)
BETWEEN:
MRS. SHANTHAMMA
W/O. LATE RAMASWAMY GOWDA,
AGED ABOUT 63 YEARS,
HANAKERE VILLAGE,
KASABA HOBLI,
MANDYA TALUK - 571 404.
... APPELLANT
(BY SMT. S.AISHWARYA, ADVOCATE FOR
SRI. RAJESHWARA P.N., ADVOCATE)
AND:
1. H. K. MADHU
S/O. KRISHNAPPA,
9, AVALAHALLI BUS STAND,
II FLOOR, GIRINAGAR,
BENGALURU - 560 026.
NOW AT
AKSHAYA AYURVEDIK CLINIC,
825/28, SRI. ANNAPURNESHWARI LAYOUT,
2ND MAIN, ULLALA,
BENGALURU - 560 056.
2. THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD.,
EXTENSION COUNTER,
1551/6, M.H. BORAIAH BUILDING,
BESIDE VIDYA GANAPATHI TEMPLE
2
BUILDINGS,
MANDYA.
...RESPONDENTS
(BY SRI.B.RAVINDRA PRASAD, ADVOCATE FOR R1;
SRI. A.N.KRISHNA SWAMY, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
19.06.2015 IN MVC NO.695/2013 PASSED BY THE HON'BLE
COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE AND CJM,
MANDYA, IN SO FAR AS IT RELATES TO AWARD OF MEDICAL
EXPENSES AND ATTENDANT CHARGES AND LOSS OF FUTURE
EARNING CAPACITY DUE TO DISABILITY BY ENHANCING THE
COMPENSATION AMOUNT. GRANTED BY THE HON'BLE TRIBUNAL
BY A SUM OF Rs.10,24,000/- (RUPEES TEN LAKHS TWENTY
FOUR THOUSAND ONLY) IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS MFA HAVING BEEN HEARD AND RESERVED ON
21.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Not being satisfied with the quantum of compensation
granted by the Tribunal, petitioner has come up with this appeal
under Section 173(1) of the Motor Vehicles Act, 1988
(hereinafter referred to as 'the MV Act') seeking enhancement.
2. For the sake of convenience the parties are referred
to by their rank before the Tribunal.
3. FACTS: Briefly stated the facts leading to the filing of
the petition are that on 02.02.2013 at about 6.45 a.m, petitioner
was going by walk on the left side of the road towards Milk
Producers Society of Hanakere. Near a turning at Gharibi site,
Hanakere, a Bajaj Discover motor cycle bearing registration
No.KA-04-ET-3493 (hereinafter referred to as offending vehicle),
being driven by its rider in a rash or negligent manner came
from backside and dashed against the petitioner.
3.1 Due to the impact petitioner fell down and sustained
grievous injury to her head and other parts of the body. At the
first instance she was taken to District Hosptial, Mandya and
from there she was shifted to NIMHANS, Bengaluru. After
treatment for 4 days, once again she was shifted to District
Hospital, Mandya. From there she was taken to BGS Apollo
Hospital, Bengaluru for higher treatment. Inspite of prolonged
treatment and spending huge amount petitioner is not
completely cured. As the owner and insurer of the offending
vehicle, both respondents are jointly and severally liable to pay
the compensation.
4. Inspite of due service of notice, respondent No.1
failed to appear before the Court and as such he was placed
Ex-parte.
5. Respondent No.2 has appeared through counsel and
filed written statement admitting the coverage of the offending
vehicle. However, its liability is subject to the terms and
conditions of the policy. At the time of alleged accident, the rider
of the offending vehicle was not having a valid and effective
driving license and thereby he has violated the terms and
conditions of the policy and as such respondent No.2 is not liable
to pay the compensation. It has also denied the age, occupation,
nature of injury sustained by the petitioner. The compensation
claimed is exorbitant and without basis and has sought for
dismissal of the petition.
6. Based on these pleadings, the Tribunal has framed
the necessary issues.
7. At the enquiry, petitioner as has examined herself as
PW-1 and got marked Ex.P1 to 16. The Doctor is examined CW-1
and Ex.C1 to 5 are marked.
8. On behalf of respondent No.2, RW-1 is examined and
Ex.R1 to 6 are marked.
9. Vide the impugned judgment and award the Tribunal
has partly allowed the claim petition granting compensation in a
sum of Rs.3,44,800/- with interest at 9% p.a. and directed the
respondent No.1 to pay the compensation. It has absolved the
respondent No.2 from indemnifying the respondent No.1 on the
ground that at the time of accident rider of the offending vehicle
was not holding a driving license. The details of compensation is
as below:
Heads Amount in
Rs.
Pain and sufferings 1,00,000
Medical expenses & attendant 1,40,000
charges
Loss of amenities and future 20,000
earning and discomfort
Loss of earnings during 20,000
treatment period
Loss of future earning capacity 64,800
due to disability
TOTAL 3,44,800
10. During the course of argument, the learned counsel
representing the petitioner submitted that though PW-2 has
assessed the disability at 40%, the Tribunal has erred in taking it
at 10% only. The income taken at Rs.6,000/-p.m. is not
justified. The compensation granted in the remaining heads is
also lower side and has sought for enhancement of
compensation.
11. On the other hand, learned counsel for the
respondent No.2 has supported the impugned judgment and
award.
12. The learned counsel for respondent No.1 submits
that respondent No.1 has not challenged the impugned
judgment and award, but the rate of interest is to be confined to
6% p.a.
13. Heard the arguments of both sides and perused the
record.
14. Thus, petitioner is seeking enhancement contending
that the Tribunal has erred in taking her income as Rs.6,000/-
p.m. and the disability should have been taken at 40%. At the
outset it is relevant to note that at the time of accident,
petitioner was aged 60 years. Looking to her age and absence of
any material to show that she was earning Rs.12,000/-p.m, the
Tribunal has taken her income as Rs.6,000/-p.m i.e., at the rate
of Rs.200/- per day. Having regard to the facts and
circumstances of the case and age of the petitioner, I hold that
income of the petitioner taken at Rs.6,000/- is reasonable and
sufficient. It call for no interference.
15. Based on the medical bills and the period of
treatment, the Tribunal has rightly granted compensation in a
sum of Rs.1,40,000/- under the head medical expenses and
attendant charges and there is also no scope for interference
under this head. Similarly based of the nature of injury sustained
as well as the period of treatment, the Tribunal has granted
compensation in a sum of Rs.20,000/- under the head loss of
amenities and Rs.20,000/- under the head loss of earning during
the laid up period. The same is reasonable and I find no reason
to interfere with the same.
16. Based on the earnings of the petitioner, her age and
the nature of injury sustained and disability suffered, the
Tribunal has taken 10% disability and based on it, has calculated
compensation in a sum of Rs.64,800/- towards loss of future
earning capacity on account of disability. This is also reasonable
and I find no reason to interfere with the same. Thus, in all the
Tribunal has granted compensation in a sum of Rs.3,44,800/-
and the same is reasonable and sufficient and therefore, it is not
a case for interfering with the same.
17. The Tribunal has also granted interest at the rate of
9% p.a. Since respondent No.1 has not challenged by an
independent appeal, I hold that the same cannot be interfered
with in an appeal filed by the petitioner. In the result, the appeal
fails and I proceed to pass the following:
ORDER
Appeal is dismissed.
Sd/-
JUDGE
RR
