Karnataka High Court

Smt. Ratnamma W/O Basanna Dai vs Mahadevappa Gouda S/O Sidramappa ... on 3 June, 2022

Bench: Rajendra Badamikar

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

       DATED THIS THE 03RD DAY OF JUNE 2022

                        BEFORE

  THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR


              MFA No.200193/2015 (MV)


BETWEEN:

SMT. RATNAMMA W/O BASANNA DAI
AGE: 44 YEARS OCC; COOLIE
R/O: DANDOTI TQ: CHITTAPUR NOW
RESIDING AT H.NO.2/8/71, BRAHMPUR
KALABURAGI.

                                      .....APPELLANT

(BY SRI. SANTOSH BIRADAR, ADVOCATE)

AND:

01.    MAHADEVAPPA GOUDA S/O SIDRAMAPPA GOUDA
       AGE: 54 YEARS OCC; OWNER OF
       TEMPO TRAX NO.KA-32-A, 5640
       R/O; RAJWAL TQ: JEWARGI
       DIST: KALABURAGI-585 103.

02.    THE MANAGER
       CHOLAMANDALAM M.S. GENERAL
       INSURANCE CO. LTD.,
       NO.135/5, 2ND FLOOR, 15TH CROSS, S.P.
       NAGAR, SECOND PHASE, BANGALORE-560001.
                             2




03.   MR. GOPALSHETTY S/O KRISHNAPPA
      SHETTY KODGI,
      AGE: 49 YEARS OCC: OWNER OF TEMPO
      TRAX NO.KA-12/9940
      R/O: JANSALE SIDDAPUR VILLAGE
      POST: KUNDAPUR,
      DIST: UDUPI-576101.

04.   THE MANAGER
      UNITED INSURANCE CO. LTD.,
      DR. JAWALI COMPLEX,
      KALABURAGI-585 101.

                                      .....RESPONDENTS

(NOTICE TO R1 AND R3 ARE SERVED
BY SRI. C. S. KALABURGI, ADVOCATE FOR R2
BY SRI. MANVENDRA REDDY, ADVOCATE FOR R4)


      THIS MFA IS FILED UNDER SECTION 173 (1) OF THE

MOTOR VEHICLES ACT, PRAYING TO ALLOW THE APPEAL AND

MODIFY   THE   IMPUGNED   JUDGMENT AND    AWARD   DATED

22.07.2014 PASSED BY THE COURT OF THE II ADDL. SENIOR

CIVIL JUDGE AND MACT AT KALABURAGI IN MVC.NO.735/2011

AND ENHANCE THE COMPENSATION AS PRAYED FOR.


      THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:
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                         JUDGMENT

This appeal is filed by the appellant-petitioner

under Section 173(1) of M.V.Act, challenging the

judgment and award dated 22.07.2014 passed in MVC

No.735/2011 by the II Addl. Senior Civil Judge &

MACT, Gulbarga, seeking enhancement of

compensation.

2. For the sake of convenience, parties are

referred with the ranks occupied by them before the

Tribunal.

3. The factual matrix leading to the case are

that on20.06.2010 at 6.30 p.m., the petitioner along

with others was returning to the village Dandoti in

Tempo Trax Toofan Vehicle bearing registration

No.KA-32/A-5640 on Gulbarga-Jewargi main road

near Akashavani Kendra Quarters, the Cruiser Vehicle

bearing registration No.KA-12/9940 driven by its

driver in a rash and negligent manner came from

opposite direction and dashed against the Tempo

Trax, wherein the petitioner was traveling resulting in

the accident. The petitioner sustained grievous

injuries and immediately she was shifted to

Government Hospital, Gulbarga and thereafer she was

shifted to Basaveshwar Hospital, Gulbarga. The

petitioner has suffered fracture of right femur and

both bones of right fore arm and she has spent huge

amount towards medical expenses and she is

permanently disabled because of accidental injuries

and hence she filed the claim petition claiming

compensation of Rs.8,85,000/- as against

respondents.

4. The respondent Nos.1 and 3 are the

owners of the offending vehicles and respondent Nos.2

and 4 are the insurers. The respondent Nos.1 and 3

did not contest the matter while respondent Nos.2 and

4 contested the matter by filing objections denying

the allegations and assertions made thereunder. They

denied the rash and negligent driving on the part of

respective drivers and further asserted that there is

breach of policy conditions. They have also denied the

age, occupation and income of the petitioner. Hence,

sought for dismissal of the claim petition.

5. After appreciating the oral and

documentary evidence, the tribunal has awarded the

total compensation of Rs.2,19,400/- by fastening the

liability 50% each on respondent Nos.1 and 2 as well

as respondent Nos.3 and 4 respectively.

6. Being aggrieved by the judgment and

award passed by the tribunal, the appellant-petitioner

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 respondents Nos.2 and 4-

Insurer. Perused the records.

8. Learned counsel for the appellant-claimant

would contend that the tribunal has taken the income

of the petitioner on lower side and further under the

head of pain and suffering no reasonable

compensation was awarded and no compensation was

awarded under the head loss of amenities as well as

under the head loss of income during laid up period.

He would also contend that the disability taken by the

tribunal at 5% is on lower side. Hence, he sought for

enhancement of compensation.

9. Per contra, learned counsels appearing for

respondents -Insurance Companies would support the

order of the tribunal

10. After assessing the oral and documentary

evidence, the tribunal has awarded compensation of

Rs.2,19,400/- under the various heads is as under;

Sl.No.          Heads                    Amount
1.         Pain & suffering              Rs.20,000/-
2.         Medical expenses              Rs.1,57,000/-
3.         Future medical expenses       Rs.10,000/-
4.         Attendant charges             Rs.5,400/-
5.         Loss of future income         Rs.27,000/-
                Total                    Rs.2,19,400/-

11. The tribunal has taken the income of

petitioner @ Rs.3,000/- per month. There is no

serious dispute regarding the involvement of the

vehicles and coverage of insurance of both the

vehicles. Admittedly the accident is of the year 2010.

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. Apart

from that the tribunal has considered the disability @

5% to the whole body. However, the records disclose

that the petitioner has suffered fracture of both bones

of right fore arm. Considering the nature of fractures

the disability to the whole body appears to be on

lower side and as such it is proper to take the

disability at 10%.

12. The petitioner is aged about 40 years and

the tribunal has rightly applied multiplier 15. Hence,

the loss of future income would works out to

Rs.99,000/- (Rs.5,500/- x 12 x 15 x 10/100) as

against Rs.27,000/- awarded by the tribunal.

13. The tribunal has awarded a sum of

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

which is on lower side. Hence, the petitioner is entitled

for a sum of Rs.30,000/- under the said head.

14. Further the tribunal has not awarded any

compensation under the head of loss of amenities and

the petitioner is entitled for a sum of Rs.30,000/-

under the said head.

15. The tribunal has awarded a sum of

Rs.1,57,000/- towards medical expenses, which does

not call for any interference. Further the tribunal has

also awarded a sum of Rs.5,400/- towards attendant

charges which also does not call for any interference.

16. The petitioner was admitted as an indoor

patient for more than one month and she ought to

have lost her income for at least 2-3 months and

considering this aspect the petitioner is entitled for a

sum of Rs.16,500/- (Rs.5,500/- x 3) as loss of income

during the laid up period.

17. Thus, the petitioner is entitled for total

compensation of Rs.3,47,900/- as against

Rs.2,19,400/- awarded by the tribunal under the

following heads;

Sl.No.          Heads                      Amount
1.         Pain & suffering                Rs.30,000/-

2. Loss of income during laid up Rs.16,500/-

period

3. Medical expenses Rs.1,57,000/-

4.         Loss of amenities               Rs.30,000/-
5.         Loss of future medical          Rs.10,000/-
           expenses
6.         Loss of future income           Rs.99,000/-
7.         Attendant charges               Rs.5,400/-
                Total                      Rs.3,47,900/-

18. Further, the tribunal has fastened the

liability of 50% each on both the Insurance Companies

and the same is not disputed. Further it is submitted

that respective liability is already satisfied before the

Claims Tribunal. Considering these aspects the appeal

needs to be allowed in part.

19. Accordingly, I proceed to pass the

following;

ORDER

(a) The appeal is allowed in part.

(b) The petitioner is held entitled for total

compensation of Rs.3,47,900/- as against