Shankina Bi vs Sundesh Y M
2022 Latest Caselaw 10931 Kant

                       1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 19TH DAY OF JULY 2022

                    BEFORE

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

          MFA No.1478 OF 2021(MV)

BETWEEN

SHANKINA BI
W/O SYED MADAR SAAB
@ BASAHAAB
AGED ABOUT 64 YEARS
RESIDING AT KODASIGE VILLAGE
H D KOTE TALUK
MYSURU -570008
                                    ...APPELLANT

(BY SRI.SHANTHARAJ K., ADV.)

AND

1.    SUNDESH Y M
      S/O HAMEED M A
      AGED ABOUT 36 YEARS
      R/AT NO.15 2ND MAIN
      5TH CROSS, BASAVESHWARA LAYOUT
      N S HALLI SANJAYANAGARA POST
      BENGALURU-560094.

2.    ICICI LOMBARD GENERAL INSURANCE
      COMPANY LTD.,
                           2



     BY ITS MANAGER
     IST FLOOR MITHRY ARCADE
     NEW KANTHARAJA URS ROAD
     NEAR SARASWATHI THEATRE
     MYSURU-570 009.
                                    ...RESPONDENTS

(BY SRI.MALLIKARJUNA REDDY, N.A., ADV. FOR SRI.
B. PRADEEP, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH
VIDE ORDER DATED: 19.07.2022)

    THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 06.12.2019 PASSED IN MVC NO. 582/2017
ON THE FILE OF THE JUDGE, ADDITIONAL COURT OF
SMALL CAUSES, AS A PRESIDING OFFICER, MOTOR
ACCIDENTS CLAIMS TRIBUNAL, MYSURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION 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 6.12.2019 passed by MACT,

Mysuru in MVC 582/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 8.4.2017 when the claimant

was a pedestrian crossing the road near Harohalli

circle on Mysuru Bannur road, at that time, motorcycle

bearing registration No.KA-04-JE-9007 being ridden

by its rider 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 riding of the offending vehicle by

its rider.

4. On service of notice, the respondent No.2

appeared through counsel and filed written statement

in which the averments made in the petition were

denied.

The respondent No.1 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 herself was

examined as PW-1 and Dr.Purushotham Sastry was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P11. 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.180,500/- along with interest at

the rate of 6% 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.15,000/- per

month, but the Tribunal has taken the notional income

as merely as Rs.6,000/- per month.

Secondly, the claimant has examined the doctor

as PW-2. The doctor in his evidence has stated that

the claimant has suffered permanent disability of

17.5%. But the Tribunal has taken the whole body

disability at 6%, 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 25 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 he

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, the doctor in his evidence has stated

that the claimant has suffered permanent disability of

17.5%. The Tribunal considering the injuries sustained

by the claimant, has rightly assessed the whole body

disability at 6%.

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. 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 riding of the offending

vehicle by its rider.

The claimant claims that he was earning

Rs.15,000/- 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 2017, the notional

income has to be taken at Rs.11,000/- p.m.

As per wound certificate, the claimant has

sustained fracture of both bones of right leg distal

1/3rd and fracture head of 3rd, 4th and 5th metatarsal.

The doctor in his evidence has stated that the

claimant has suffered permanent disability of 17.5%.

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 6%. The claimant is aged about 58

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.71,280/-

(Rs.11,000*12*9*6%) 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 2 months. Therefore, the claimant is entitled for

compensation of Rs.33,000/- (Rs.11,000*3 months)

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

The claimant was treated as inpatient for more

than 25 days in the hospital and thereafter, has

received further treatment. 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.5,000/- to Rs.30,000/-

and under the head of 'pain and sufferings' from

Rs.15,000/- 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 15,000 40,000 Medical expenses 78,500 78,500 Food, nourishment, 12,500 12,500 conveyance and attendant charges Loss of income during 14,000 33,000 laid up period Loss of amenities 5,000 30,000 Loss of future income 45,500 71,280 Future medical expenses 10,000 10,000 Total 180,500 275,280

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.275,280/-.

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

DM