Smt. Vajirbee vs Giridhara G
2022 Latest Caselaw 10845 Kant

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 15TH DAY OF JULY 2022

                          BEFORE

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

                 MFA No.409 OF 2020(MV)

BETWEEN:

Smt. Vajirbee,
W/o Late Mehaboob Sahib,
Aged about 65 years,
R/at Ward No.4,
Gengasanipalyam,
Kalamattu Post, Gudiyattam Taluk,
Vellore District,
Tamil Nadu State-632202.                    ... Appellant
(By Sri.R.Lakshmana, Advocate)

AND:
1.     Giridhara G.,
       S/o Gopalakrishna G.,
       No.2G, 9th Street,
       Jogupalya, Halasooru,
       Bangalore Pin-560 008.

2.     M/s. ICICI Lombard General
       Insurance Co. Ltd.,
       By its Manager,
       No.121, The Estate Building,
       9th Floor, Dickenson Road,
       Bangalore Pin-560001.              ... Respondents

(By Sri.Mallikarjuna Reddy N.A., Advocate for
Sri. B. Pradeep, Advocate for R2:
Notice to R1 & R2 is D/W v/o dated: 15.07.2022)
                             2




      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:31.10.2018 passed
in MVC No.6375/2016 on the file of the II Additional Judge
& XXVIII ACMM, Court of Small Causes, Bengaluru, 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 31.10.2018 passed

by Motor Vehicles Accident Claims Tribunal, Bengaluru

(SCCH-13) in MVC No.6375/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 07.09.2016 at about 5.45

p.m. the claimant was proceeding as a pedestrian on

Nandidurga road, J.C.Nagar and when she was

crossing the road in front of Muslim Burial Ground, at

that time, a motorcycle bearing registration No.KA-

03/EL-3044 being ridden by its rider at a high speed

and in a rash and negligent manner, dashed against

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 he 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

and 2 appeared through counsel and respondent No.2

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 pleaded that the petition itself is false

and frivolous in the eye of law. It was further pleaded

that the accident was due to the negligence of the

claimant herself. It was further pleaded that the

driver of the offending vehicle did not have valid

driving licence as on the date of the accident. It was

further pleaded that the liability is subject to terms

and conditions of the policy. It was further pleaded

that the quantum of compensation claimed by the

claimant is exorbitant. Hence, he 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.Kishor Kumar was

examined as PW-3 and another witness as PW-2 and

got exhibited documents namely Ex.P1 to Ex.P16. 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.3,52,920/- 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. The learned counsel for the claimant has

raised the following contentions:

Firstly, at the time of the accident the claimant

was aged about 60 years, she is a house wife and the

monthly income assessed by the Tribunal at

Rs.8,000/- is on the lower side.

Secondly, due to the accident, the claimant has

sustained grievous injuries. 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 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, at the time of the accident the claimant

was aged about 60 years and she was a house wife.

Therefore, the Tribunal has rightly assessed the

notional income of the claimant.

Secondly, 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.

At the time of the accident the claimant was

aged about 60 years and she was a house wife.

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. Considering the injuries

suffered by the claimant the Tribunal has rightly taken

the whole body disability at 28%. The claimant was

aged about 60 years at the time of the accident and

multiplier applicable to her age group is '9'. Thus,

the claimant is entitled for compensation of

Rs.2,87,280/- (Rs.9,500*12*9*28%) on account of

'loss of future income'.

Due to the accident, the claimant has suffered

grievous injuries, 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 of the opinion that the claimant is entitled

to compensation of Rs.25,000/- under the head 'loss

of amenities'.

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 50,000 50,000 Medical expenses 1,000 1,000 Food, nourishment, 60,000 60,000 conveyance and attendant charges Loss of amenities 0 25,000 Loss of future income 2,41,920 2,87,280 Total 3,52,920 4,23,280

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.4,23,280/- as against Rs.3,52,920/- 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.

Sd/-

JUDGE

Cm/-