Smt. Laxmi W/O. Dharamappa Pawar ... vs Rajappa S/O.Durgappa
2022 Latest Caselaw 10009 Kant

                           1


            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 30TH DAY OF JUNE 2022

                        BEFORE

       THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
                MFA No.202024/2014 (MV)

BETWEEN:

SMT. LAXMI
W/O DHARMAPPA PAWAR LAMANI,
AGE: 37 YEARS, OCC: HOUSEHOLD &
TAILORING,
R/O GOKUL BANJAR COLONY, HUBLI,
NOW RESIDING AT MADDIPET,
RAICHUR-584102.
                                            ... APPELLANT
(BY SRI. VEERANAGOUDA, ADVOCATE)

AND:

1.     RAJAPPA S/O DURGAPPA,
       AGE: MAJOR, OCC: DRIVER & WONER OF
       VEHICLE NO.KA-3/7277,
       R/O KOTRESHWARA CAMP,
       NEAR ANJANEYA TEMPLE,
       GANGAVATHI, KOPPAL DIST.

2.     UNIVERSAL SAMPO GENERAL
       INSURANCE CO. LTD.
       REGD. OFFICE 201-208, CRISTAL PLAZA,
       OPP: INFAINT MAIL, LINK ROAD,
       ANDHERI WEST MUMBAI-400058.
                                         ... RESPONDENTS

(BY SRI. MANVENDRA REDDY, ADVOCATE FOR R2;
     R1 SERVED)
                                       2


     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
ALLOW THE APPEAL, THE JUDGMENT AND AWARD PASSED BY
THE LEARNED PRL. DISTRICT & SESSION JUDGE, AT
RAICHUR, IN MVC NO.357/2012, DATED 03.04.2014 MAY
KINDLY BE MODIFIED BY ENHANCING THE COMPENSATION
AS CLAIMED IN THE CLAIM PETITION.

     THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-

                              JUDGMENT

This appeal is filed by the claimant seeking

enhancement by challenging the judgment and award dated

03.04.2014 passed by the Motor Accident Claims Tribunal at

Raichur, in MVC No.357/2012.

2. For the sake of convenience, the parties herein

are referred as per the ranks occupied by them before the

Tribunal.

3. The brief factual matrix leading to the case are

that, on 09.02.2011 the claimant and others were

proceeding in Tempo-Trax Toofan vehicle bearing Registration

No. KA.37/7277 and it met with accident near Gangavathi-

Sanapur Main Road at 1.15 p.m., due to its over-turn.

As a result of the said accident, the claimant who was an

inmate of the vehicle, suffered injuries and she took

treatment in Primary Health Center and also in a private

hospital at Gangavathi. It is claimed that she spent more than

Rs.70,000/- towards medical expenses. It is also alleged that,

she was carrying tailoring work and was earning Rs.6,000/-

per month and contributing the same for maintenance of the

family, and now she is permanently disabled, and hence, she

filed the claim petition before the Tribunal under Section 166

of the Motor Vehicles Act, 1988 ('MV Act' for short), claiming

compensation of Rs.8,50,000/-.

4. Respondent No.1/owner did not contest the matter

before the Tribunal, while Respondent No.2/Insurer filed

objections contending that, the driver of the offending vehicle

was not possessing valid and effective driving licence as on

the date of accident and there is breach of policy conditions,

as the said vehicle was over-loaded, and sought for dismissal

of the claim petition.

5. The Tribunal after assessing the oral and

documentary evidence, has awarded compensation of

Rs.1,82,802/- with interest at 6% p.a., from the date of

petition till the date of realisation, by fastening the liability on

Respondents No.1 & 2 jointly and severally.

6. Being aggrieved by the impugned judgment and

award of the Tribunal, the claimant has filed this appeal

seeking enhancement.

7. Heard the arguments advanced by the learned

counsel appearing for the appellant/claimant and the learned

counsel for respondent No.2/Insurer. Perused the records.

8. The main contention of the learned counsel for the

appellant/claimant is that, the disability taken by the Tribunal

at 9% is on lower side. He would also contend that the

income was taken on lower side and no compensation was

awarded under the head of Loss of Amenities, and also the

compensation awarded under other heads is also on lower

side. Hence, he would seek for enhancement of compensation.

9. Per contra, learned counsel for respondent

No.2/Insurer would support the judgment and award of the

Tribunal, and sought for dismissal of the appeal.

10. There is no dispute of the fact that the claimant

was the inmate of offending vehicle when it met with accident.

The Insurance Company has raised objection that the driver of

the offending vehicle was not possessing valid and effective

driving licence as on the date of accident, but, the Tribunal

has rejected this contention. Further, the Insurance Company

has also raised an objection that the offending vehicle was

over-loaded against the policy conditions. This was also

negativated by the Tribunal. These findings of the Tribunal

were not challenged by the Insurance Company. Under these

circumstances, the only point to be considered is regarding

enhancement of compensation.

11. The Tribunal has taken the income of the claimant

at Rs.5,000/- per month. Admittedly, the accident has

occurred in the year 2011. The claimant all along asserted

that, she was earning Rs.6,000/- per month by tailoring work.

This court is consistently taking the notional income at

Rs.6,000/- per month in respect of the accidents occurred in

the year 2011. Under these circumstances, the Tribunal has

erred in taking the monthly income of the claimant, on lower

side.

12. The evidence of the Doctor-PW.2 discloses that the

claimant has suffered fracture of left humorous which is

reunited and the fracture of right clavicle bone which has not

caused any disability. PW.2-Doctor has given disability to the

left upper limb to the extent of 27%. Considering this, the

Tribunal has taken disability to the extent of 9%, which cannot

be said to be illegal and as such, the disability taken by the

Tribunal at 9% is just and proper. Considering the age of the

claimant, the Tribunal has applied multiplier '16', which does

not call for any interference. Hence, the loss of future income

would work out to Rs.1,03,680/-. (Rs.6,000x 12 x 16 x

9%).

13. The Tribunal has awarded a compensation of

Rs.40,000/- under the head of pain and suffering, which is

just and proper and does not call for any interference.

14. Further, the Tribunal has awarded a sum of

Rs.39,802/- towards medical expenses, which is just and

proper and can be rounded of to Rs.40,000/-.

15. Towards attendant charges, the Tribunal has

awarded Rs.3,000/-. Considering the period of hospitalisation,

the claimant is entitled for Rs.5,000/- under this head.

16. Under the head of special diet and nutrition food,

the Tribunal has awarded only Rs.3,000/-, which is on the

lower side and it is enhanced to Rs.5,000/-.

17. The Tribunal has awarded Rs.10,000/- under the

head of loss of income during laid-up period for two months.

Considering the nature of injuries, it can be taken for three

months and the notional income being taken at Rs.6,000/- per

month, the claimant is entitled for Rs.18,000/- under this

head.

18. The Tribunal has not awarded any compensation

under the head of loss of amenities. Considering that two

fractures having been suffered, Rs.20,000/- needs to be

awarded to the claimant under this head.

19. In the facts and circumstances, the claimant is

entitled for total compensation of Rs.2,31,680/- as under:

     Sl.No   Heads                                 Amount
     1.      Pain and suffering                    Rs. 40,000/-
     2.      Medical expenses                      Rs. 40,000/-
     3.      Loss of amenities                     Rs. 20,000/-
     4.      Loss of future income                 Rs.1,03,680/-
     5.      Loss of income during laid            Rs. 18,000/-
             up period
     6.      Attendant charges                     Rs.     5,000/-
     7.      Special diet and nutrition            Rs.     5,000/-
             food
                           Total                   Rs.2,31,680/-

20. In the result, the appeal needs to be allowed in

part. Accordingly, I proceed to pass the following:

ORDER

i. The appeal is allowed-in-part.

      ii.    The   judgment       and        award      dated    03.04.2014
             passed         by   the       MACT    at    Raichur      in   MVC
             No.357/2012 stands modified.


      iii.   The    claimant       is       held     entitled      for     total
             compensation        of        Rs.2,31,680/-         as      against

Rs.1,82,802/- awarded by the Tribunal.

iii. The enhanced compensation of Rs.48,878/-

(Rs.2,31,680-1,82,802) shall carry interest at the rate of 6% p.a. from the date of petition till its realisation.

iv. Respondent No.2-Insurance Company is directed to deposit the enhanced compensation with interest accrued thereon within six weeks from the date of this judgment.

v. The entire enhanced compensation with accrued interest thereon, shall be released in favour of the appellant/claimant.

Sd/-

JUDGE

KGR/LG