Karnataka High Court

Smt. Geetha vs Sri. Mohan on 8 July, 2022

Bench: H T Prasad

                               1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 8TH DAY OF JULY 2022

                          BEFORE

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

                 MFA No.188 OF 2021(MV)

BETWEEN:

Smt. Geetha,
W/o Kumaraiah,
@ Kumaraswamy,
Aged about 44 years,
R/o Hanasegatta,
Tiptur Taluk,
Tumakur District-572201.                  ... Appellant

(By Sri. Sunil K.N., for
Sri. Ramesh K.R., Advocate)

AND:

1.     Sri. Mohan,
       S/o Basavachar,
       Major,
       R/o Malagondanahalli,
       Settikere Hobli,
       C.N. Halli Taluk,
       Tumakur Dist-572201.

2.     Prem Sagar S.R.,
       S/o Late Siddagangaiah,
       No.81, 1st Main Road,
       Sadashivanagar,
       Nelamangala Town,
       Bengalore Rural District-562123.
                             2



3.   The Manager,
     ICICI Lombard General
     Insurance Company Ltd.,
     ICICI Lombard house,
     414 Veer Savarkar Marg,
     Near Siddivinayaka Temple,
     Prabhadevi, Mumbai-400025.          ... Respondents

(By Sri. B. Pradeep, Advocate for R3:
Notice to R1 & R2 is D/W v/o dated: 08.07.2022)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 02.05.2019
passed in MVC No.955/2016 on the file of the 2nd
Additional District Judge and MACT Tumakur, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.

      This MFA, coming on for orders, this day, this 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 02.05.2019 passed

by the II Addl. District Judge and MACT at Tumakuru

in MVC No.955/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 18.04.2016 at about 1.30

p.m., the claimant was proceeding in a Maruti Swift

Desire Car bearing registration No.KA-52/M-2644

towards Yediyur via Nonavinakere - Turuvekere.

When they reached near Varahasandra Gollarahatti

Gate, at that time, the driver of the said car, in order

to avoid she-buffalo, suddenly applied brakes. As a

result, 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 Nos.1

to 3 appeared through counsel and filed separate

written statements 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 pleaded that the petition itself is false

and frivolous in the eye of law. 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 husband of the claimant

was examined as PW-1 and Dr.Abhinith Shashidhar

was examined as CW-1 and got exhibited documents

namely Ex.P1 to Ex.P10. On behalf of the

respondents, neither any witness was examined nor

got exhibited documents. 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.6,02,000/- along with interest @

6% p.a. and directed the Insurance Company to

deposit the compensation amount along with interest.

Being aggrieved, this appeal has been filed.

6. Sri Sunil K.N., learned counsel appearing

for Sri Ramesh K.R. 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 only Rs.8,000/- per month.

Secondly, due to the accident the claimant has

suffered grievous injuries, the doctor has been

examined as CW-1. In his evidence he has deposed

that the claimant has suffered 100% neuro disability.

Since the claimant has suffered head injury, she was

unable to do her day today work, she was not in a

position to give her evidence and on her behalf, her

husband has given evidence as PW-1. But the

Tribunal has failed to consider the functional disability.

Thirdly, the Tribunal has only assessed

disability of the claimant as 30%, which is on the

lower side.

Fourthly, due to the accident, the claimant has

sustained grievous injuries. She was treated as

inpatient for a period of 15 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 and she has to suffer the

disability and unhappiness throughout her life.

Considering the same, the compensation granted by

the Tribunal under the heads of 'pain and sufferings',

'loss of amenities' and other incidental heads are on

the lower side. Hence, he sought for allowing the

appeal.

7. On the other hand, Sri B.Pradeep, 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, even though the claimant has suffered

head injury, at the time of discharge, her condition

was stable and she has fully recovered from the

injuries. It is very clear from the evidence of the

doctor. Therefore, considering the evidence of the

doctor and considering the injuries suffered by the

claimant the Tribunal has rightly assessed the whole

body disability as 30%.

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. Hence,

he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award.

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.15,000/- 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 2016, the notional income has to be

taken at Rs.9,500/- p.m. Due to the accident, the

claimant has sustained tenderness over head, multiple

abrasions over the body, moderate head injury and

temporal contusion. Dr.Abhinith Shashidhar has been

examined as CW-1. In his evidence he has stated as

hereinbelow:

"Assessment by Neuropsychologist - social quotient 14.14 - moderate disability (100% disability) Assessment by Psychiatric social worker - social disability - moderate - 55%.

Assessment by Neurorehabilitation dept. - Locomotor disability - cannot be assessed.

Assessment by Neurosurgeon - No cranial nerve and sensory motor deficits. No bladder involvement. No cerebellar signs."

He further deposed that when the claimant was

discharged from the hospital her condition was stable.

Considering the evidence of the doctor and the fact

that due to the injuries she was unable to give her

evidence, I am of the opinion that the whole body

disability can be assessed at 40%.

The claimant was aged about 44 years at the

time of the accident and multiplier applicable to her

age group is '14'. Thus, the claimant is entitled for

compensation of Rs.6,38,400/- (Rs.9,500*12*14*

40%) on account of 'loss of future income'.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. She

was treated as inpatient for more than 15 days in the

hospital and thereafter, has received further

treatment. She has suffered lot of pain during

treatment and she has to suffer with the disability and

unhappiness throughout her life. Considering the

same, I am inclined to enhance the compensation

awarded by the Tribunal under the head of 'pain and

sufferings' from Rs.30,000/- to Rs.50,000/-, 'loss of

amenities' from Rs.40,000/- to Rs.50,000/-, 'loss of

income during laid-up period' for a period of 3

months, i.e.,Rs.28,500/- (Rs.9,500*3).

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 50,000 Medical expenses 74,415 74,415 Food, nourishment, 30,000 30,000 conveyance and attendant charges Loss of income during 24,000 28,500 laid up period Loss of amenities 40,000 50,000 Loss of future income 4,03,200 6,38,400 Total 6,01,615 8,71,315 Rounded off to 6,02,000

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.8,71,315/- as against Rs.6,02,000/- awarded by

the Tribunal.

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.

In view of the order dated 08.07.2022 passed by

this Court, the claimant is not entitled to interest for