Karnataka High Court

Smt. Roopa W/O Vishwanath ... vs Sri. Parasappa S/O Bhojappa ... on 2 June, 2022

Bench: Rajendra Badamikar

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 2ND DAY OF JUNE 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

               MFA No.200075/2015 (MV)
BETWEEN:

Smt. Roopa
W/o Vishwanath Soppimath
Aged about 24 years
Occ: Student/Household
R/o Mathapati Galli, Bijapur
                                            ... Appellant

(By Sri. S.S. Mamadapur, Advocate)

AND:

1.     Sri Parasappa
       S/o Bhojappa Hadimani
       Aged about 35 years, Occ: Business
       R/o Toravi, Tq. & Dist. Bijapur - 586 101

2.     The Branch Manager
       National Insurance Co. Ltd.
       Bijapur - 586 101
                                            ... Respondents

(Sri. S.S. Aspalli, Advocate for R2;
 Notice to R1 is dispensed with)
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      This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to enhance the compensation amount
payable to the appellant by suitably modifying the
judgment and award dated 05.10.2012 passed by the
learned Member, MACT & FTC-I/II Bijapur, in MVC
No.750/2011.

      This appeal coming on for final hearing this day, the
Court delivered the following:

                       JUDGMENT

This appeal is filed by the claimant under Section

173(1) of the Motor Vehicles Act, challenging the judgment

and award dated 05.10.2012 passed in MVC No.750/2011

by the Motor Accident Claims Tribunal & Fast Track Court-

I/II, Bijapur (hereinafter referred to as 'the Tribunal' for

short), seeking enhancement of compensation.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the Tribunal.

3. The factual matrix leading to the case are

that on 23.11.2010, the petitioner was traveling in an

Auto bearing registration No.KA-28/A-7690 and at

about 2.00 p.m., near Sainik School gate on Bijapur-

Toravi road, the driver of the Auto drove it in a rash

and negligent manner and as a result the Auto over

turned, due to which the petitioner sustained injuries

on her abdomen and other parts of the body.

Immediately, she was shifted to BLDE Hospital,

Bijapur, wherein she was treated for injuries sustained

in the accident and she incurred huge expenses. That

she is permanently disabled because of the injuries

and she is unable to do normal work as before. Hence

she has sought for compensation of Rs.11,50,000/-.

4. The respondent Nos.1 and 2 though

appeared, the respondent No.1 did not contest the

matter while respondent No.2 admitted the coverage

of insurance policy of the offending vehicle but

disputed that the driver was possessing valid and

effective driving license as on the date of the accident.

The respondent-insurer has also denied the age,

occupation and income of the petitioner and as such

by disputing the liability sought for dismissal of the

claim petition.

5. After appreciating the oral and

documentary evidence, the tribunal has awarded the

total compensation of Rs.1,20,000/- under the various

heads is as under;

Sl.No.          Heads                       Amount
1.         Pain & suffering                 Rs.12,000/-
2.         Medical expenses                 Rs.53,000/-
3.         Loss of earning during           Rs.06,000/-
           treatment period, attendant
           charges & Special diet
4.         Loss of future earning           Rs.43,200/-
5.         Loss of amenities                Rs.06,160/-
                Total                       Rs.1,20,200/-
                Rounded off to              Rs.1,20,000/-

6. Being dissatisfied with the quantum of

compensation awarded by the tribunal, the petitioenr

has filed this appeal seeking enhancement of

compensation.

7. Heard the arguments advanced by the

learned counsel for the appellant-petitioner and

learned counsel for the respondent No.2-Insurer.

Perused the records.

8. Learned counsel for the appellant would

contend that the compensation awarded by the

tribunal under the head of pain and suffering and loss

of amenities is on lower side. He would also contend

that the compensation awarded under the head loss of

earning during treatment period including attendant

charges is also on lower side and the tribunal has

taken the income on lower side, which has resulted in

awarding lesser compensation under the said head.

He would further contend that the tribunal has also

erred in fastening the liability on respondent No.1 and

he would contend that the liability should be joint and

several as against both the respondents. Hence, he

would seek for enhancement of the compensation by

fastening the liability on respondent No.2 also.

9. Per contra, learned counsel appearing for

respondent No.2-Insurance Company would support

the judgment and order passed by the tribunal and

further alternatively contended that in case liability is

fastened on the Insurer, an order regarding pay and

recovery may be passed.

10. Having heard the arguments and perusing

the records, it is evident that there is no serious

dispute regarding accident and petitioner sustaining

injuries in the said accident. The wound certificate at

Ex.P9, disclose that the petitioner has sustained

abrasion on the nose, abrasion on upper lip, abrasion

on the chin and abrasion on both knees. Further she

suffered blunt injury on chest as well as abdomen.

The medical evidence further disclose that the

petitioner has suffered injury Haemopertonium and

the evidence of PW.2 disclose that the petitioner was

undergone USG of abdomen and she was also

operated. The medical evidence further disclose that

she is now suffering from sub acute intestinal

obstruction and due to the injury suffered urinary

bladder disturbance is found. The doctor has given

disability to the extent of 20-22% and the tribunal has

taken it as 8% to the whole body. This aspect is not

challenged by either of the parties.

11. The tribunal has taken the income of the

petitioner @ Rs.30,000/- p.a. There is no base for this

aspect. As per the Lok Adalath Chart, this Court is

consistently taking the notional income of Rs.5,500/-

per month for the accident occurred in the year 2010.

However, claimant-petitioner herself claimed and

restricted monthly income @ Rs.5,000/-. Under these

circumstances, the income of the petitioner ought to

have been taken @ Rs.5,000/- per month. Hence, the

loss of income due to disability works out to

Rs.86,400/- (Rs.5,000/- x 18 x 8/100)

12. Hence, the petitioner is entitled for

compensation of Rs.86,400/- as against Rs.43,200/-

awarded by the tribunal.

13. The tribunal has awarded a sum of

Rs.53,000/- under the head of medical expenses,

which does not call for any interference as it is based

on medical records.

14. The tribunal has awarded a sum of

Rs.12,000/- towards pain and suffering, which

appears to be on lower side and considering the

grievous injuries that too urinary bladder wall, parietal

wall and further complications. Hence, I propose to

award a sum of Rs.30,000/- under the head of pain

and suffering and Rs.20,000/- under the head of loss

of amenities.

15. The petitioner ought to have been

prevented from attending the work for at least 2-3

months and hence under the head of loss of income

during the laid up period, she is entitled for a sum of

Rs.15,000/- and as such the petitioner is entitled for

total compensation of Rs.2,04,400/- as against

Rs.1,20,000/- awarded by the tribunal under the

following heads is as under;

Sl.No.          Heads                       Amount
1.         Pain & suffering                 Rs.30,000/-
2.         Loss of income during            Rs.15,000/-
           treatment period
3.         Medical expenses                 Rs.53,000/-
4.         Loss of amenities                Rs.20,000/-
6.         Loss of future income            Rs.86,400/-
                Total                       Rs.2,04,400/-

16. Further, the tribunal has found that the

driver of the Auto was not possessing valid and

effective driving license as the respondent No.1 failed

to appear and produce relevant documents in this

regard. This finding is not challenged by respondent

No.1 and it does not call for any interference. Since

the petitioner is a third party in view of the decision of

the Hon'ble Apex Court in the case of Pappu and

others Vs. Vinod Kumar Lamba and another

reported in 2018 ACJ 690, the petitioner is entitled

for compensation from the insurer-respondent No.2

and respondent No.2 is at liberty to recover the same