Smt Chikkolamma vs Sri Ravi G
2022 Latest Caselaw 10935 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 19TH DAY OF JULY, 2022

                          BEFORE

             THE HON'BLE MS.JUSTICE J.M.KHAZI

                  M.F.A.NO.56/2019 (MV)

BETWEEN:

SMT CHIKKOLAMMA
W/O MUTHAIAH,
AGED: 68 YEARS,
R/AT NO 49-4,
LINGANAPURA,
HALAGURU HOBLI,
MALAVALLI TALUK
MANDYA DISTRICT - 571430
                                          ... APPELLANT
(BY SRI SURESH M LATUR, ADVOCATE)

AND:

1.     SRI RAVI G
       S/O GOVINDAIAH,
       NO 100, LINGANAPURA VILLAGE,
       NANJEGOWDANADODDY POST,
       MALVALLI TALUK,
       MANDYA DISTRICT - 571 430

2.     THE MANAGER,
       ICICI LOMBARD GENERAL
       INSURANCE COMPANY LIMITED,
       NO.89, 2ND FLOOR,
       SVR COMPLEX,
       MADIVALA, KORMANGALA
       BENGALURU - 560 068
                                        ...RESPONDENTS
(BY SRI. A.N.KRISHNA SWAMY, ADVOCATE FOR R2;
    V/O/DTD 21.12.2021, R1 NOTICE D/W)
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     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING THAT THE JUDGMET AND AWARD PASSED BY THE II
ADDL. JUDGE & XXVIII ACMM, COURT OF SMALL CAUSES, AND
MEMBER OF MACT BENGALURU, IN MVC NO.2157/2017 DATED
29/10/2018 MAY KINDLY BE MODIFIED AND ALLOW THIS
APPEAL BY ENHANCING THE COMPENSATION OF Rs.5,54,444/-
WITH 6% INTEREST PER ANNUM MAY KINDLY BE GRANTED IN
THE INTEREST OF JUSTICE AND EQUITY.
     THIS MFA HAVING BEEN HEARD AND RESERVED ON
30.06.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal is filed under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the MV Act') by

the petitioner seeking enhancement.

2. For the sake of convenience the parties are

referred to by their rank before the Tribunal.

3. FACTS: Brief facts leading to the filing of the claim

petition are that on 10.03.2017 at 2.45 p.m. petitioner was

travelling as a passenger in Bolero vehicle bearing registration

No.KA-11-B-0499 (hereinafter referred to as offending

vehicle). When the vehicle reached Honniganahalli, Sathanuru

Hobli, Kanakapura Taluk, the driver of the offending vehicle

drove in a high speed, in a rash or negligent manner, as a

result of which it turned turtle. Due to the accident, petitioner

sustained grievous injuries. She has taken treatment at

Government Hospital, Halaguru, District Government Hospital,

Mandya, K.R.Hospital, Mysuru and Victoria Hospital,

Bengaluru. Inspite of prolonged treatment, petitioner is not

completely cured. On account of the injury sustained in the

accident, petitioner has suffered permanent partial disability.

3.1 As on the date of accident, petitioner was aged 67

years. She was doing agriculture and coolie and earning

Rs.8,000/-p.m. After the accident, she is unable to do work as

she used and thereby suffering loss of income. As the owner

and insurer of the offending vehicle, respondent Nos.1 and 2

are jointly and severally liable to pay the compensation.

4. Though appeared through counsel, respondent

No.1 has not chosen to file objections.

5. Respondent No.2 has filed objections stating that

neither the owner nor the concerned police have informed

respondent No.2 about the alleged accident and the requisite

documents have not furnished to it and as such it would not

admit the coverage of the vehicle. In the event of establishing

that there is a valid policy issued by respondent No.2, its

liability if any, is subject to the terms and conditions of such

policy.

5.1 Respondent No.2 has denied the age, occupation,

income of the petitioner, that she has sustained injuries in a

motor vehicle accident involving the offending vehicle and that

it has resulted in permanent partial disability. The alleged

accident took place on 10.03.2017. However, complaint is

lodged on 23.03.2017 after lapse of 14 days. The offending

vehicle is falsely implicated in collusion with the owner of the

vehicle i.e. respondent No.1 and the concerned police, with an

intention of claiming compensation. Without prejudice, it is

claimed that at the time of alleged accident, the driver of the

offending vehicle was not holding a valid driving license. The

vehicle was not having a valid permit and fitness certificate.

The compensation claimed is highly exorbitant, fanciful and

without any basis and has sought for dismissal of the petition

against respondent No.2

6. Based on these pleadings, the Tribunal has framed

necessary issues.

7. During the enquiry, petitioner has examined

herself as PW-1 and one witness as PW-2. She has relied upon

Ex.P1 to 16.

8. On the other hand, on behalf of respondent No.2,

RW-1 is examined and Ex.R1 to 3 are marked.

9. Vide the impugned judgment and award, the

Tribunal has granted compensation in a sum of Rs.4,45,556/-

and direction respondent No.2 to pay the same by

indemnifying respondent No.1. The details of the

compensation granted is as under:

                       Heads                    Amount in Rs.
           Pain and sufferings                          1,00,000
           Loss of future income due to                 1,53,600
           disability
           Conveyance, attendant                          80,000
           charges and nutrition food
           Loss of amenities &                          1,00,000
           unhappiness
           Medical expenses                               11,956
           TOTAL                                       4,45,556

10. The learned counsel for petitioner submitted that

the compensation granted on all the heads is on lower side

and requires enhancement. The Tribunal has erred in

considering the disability at 32%. It ought to have been taken

at 100% disability.

11. Heard arguments and perused the records.

12. It is pertinent to note that though respondents

have alleged that the vehicle is not at all involved and in order

to make wrongful gain petitioner in collusion with respondent

No.1 has implicated the offending vehicle, respondent No.2

has not challenged the impugned judgment and award.

Therefore, the findings of the Tribunal that the accident

occurred due to rash or negligent driving by the driver of the

offending vehicle and in the said accident petitioner has

sustained injuries and as such both respondent Nos.1 and 2

are liable to pay the compensation and as insurer of the

offending vehicle, respondent No.2 has to indemnify

respondent No.1 has become final. Therefore, the only issue

which is required to be decided in the present appeal is the

adequacy or otherwise of the compensation granted by the

Tribunal.

13. Ex.P6 is the wound certificate. Ex.P7 and 8 are the

discharge summaries. In the light of these documents and the

testimony of PW-2 and also photographs at Ex.9(a) and (b), it is

evident that on account of the injury sustained by the petitioner

portion of her right hand fingers are amputed. The petitioner has

suffered the following injuries:

"4) On clinical examination, I found the following disabilities:

Soft tissues and bones of distal half of right thumb (Distal) Phlanx), Distal half of index finger, Middle, Ring finger and Little finger of right hand are absent or missing due to crush injury."

14. PW-2 has calculated the disability suffered by the

petitioner as under:

"Post amputation status giving rise to disability of about 32% (15% thumb 10% index finger, 4% for middle finger, 2% for ring finger and 1% for little finger = 15+10+4+2+1=32%)."

15. Thus, according to PW-2, the petitioner has suffered

32% disability of the whole body.

16. In the petition, petitioner has given her age as 67

years and income as Rs.8,000/-p.m. However, as per Ex.P10

Aadhar card, the petitioner is born during 1944. Since the

accident is of the year 2017 on the basis of her date of birth, the

Tribunal has correctly taken her age as 73 years. Having regard

to the fact that petitioner has already 73 years old at the time of

accident, it would be doubtful whether she was carrying out any

work and earning her livelihood. However, for the purpose of

calculating the compensation, even in case of non earning

person notional income is required to be considered. Taking into

consideration the age of the petitioner, the Tribunal has taken

the notional income at Rs.8,000/-.Based on the disability at 32%

and multiplier 5, the Tribunal has rightly calculated the loss of

income on account of injury as Rs.1,53,600/- and I find no

reason to interfere with the same.

17. The arguments of the learned counsel that the same

has resulted 100% functional disability cannot be accepted.

Having regard to the fact that the entire fingers of the right hand

are not amputed, but tips of the fingers are amputed, therefore,

there is no scope for further enhancement under the head loss of

future earnings. The Tribunal has granted compensation in a

sum of Rs.1,00,000/- under the head pain and suffering,

Rs.1,00,000/- under the head loss of amenities of life and

Rs.80,000/- towards conveyance, attendant charges and

nutritious food. Based on the medical bills, the Tribunal has

granted compensation in a sum of Rs.11,956/- under the head

medical expenses. Having regard to the nature of the injury

sustained by the petitioner, her age, the compensation granted

by the Tribunal is in fact on the higher side. The Tribunal is very

generous in granting compensation to the petitioner probably

looking to her age and absolutely there is no scope for further

enhancement of compensation. In fact since the respondent

No.2 has not challenged the impugned judgment and award, this

Court is not inclined to reduce the compensation. Absolutely,

there is no merits in the appeal and in the result the appeal fails

and accordingly, I proceed to pass the following:

ORDER

(i) The appeal filed by the petitioner is dismissed.

(ii) The registry is directed to transmit the trial

Court record along with copy of this judgment

to the Tribunal.

Sd/-

JUDGE RR