Smt Nagarathna H vs Sri Prakash A S
2022 Latest Caselaw 8640 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 13TH DAY OF JUNE 2022

                     BEFORE

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

           MFA No.247 OF 2022(MV)

BETWEEN

SMT NAGARATHNA H
W/O DHANANJAYA R
AGED ABOUT 31 YEARS
R/AT NO.62, LALITHA NILAYA
15TH CROSS, 2ND MAIN
HELTHA LAYOUT
NAGARBHAVI 2ND STAGE
BANGALORE - 560072.

                                    ...APPELLANT


(BY SRI.TEJAS N., ADV.)

AND

1 . SRI PRAKASH A S
    S/O SANJIVAIAH
    AGE MAJOR
    R/AT NO.22, SRI RAMANAGAR
    KAMAKSHIPALYA
    BANGALORE - 560079.

2 . SMT. GIRIJA V
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   MAJOR
   R/AT NO.86, SIGEHALLI GATE
   ARKAVATHI GATE
   MANCHANBELE COLONY
   KADABAGERE
   BANGALORE - 562130.

3 . THE MANAGER
    UNITED INDIA INSURANCE CO.,
    6TH FLOOR, KRUSHI BHAVAN
    NRUPATUNGA ROAD
    BANGALORE - 560001.

                                   ...RESPONDENTS

(BY SRI.S.KRISHNA KISHORE, ADV. FOR R3:
NOTICE TO R1 & R2 IS DISPENSED WITH)

      THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
20.12.2019 PASSED IN MVC NO.2493/2019 ON THE
FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE
AND MACT, BENGALURU SCCH-11, PARTLY ALLOWING
THE   CLAIM   PETITION   FOR   COMPENSATION   AND
SEEKING ENHANCEMENT OF COMPENSATION.


      THIS MFA COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                          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 and decree dated 20.12.2019 passed

by MACT, Bangalore in MVC 2493/2019.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 17.2.2019, when the

claimant was riding a two wheeler bearing registration

No.KA-02-JC-1391 from her native to her house in

Bangalore and when reached near Magadi Road wing,

Doddagollarahatti, at that time, Tata Sumo bearing

registration No.KA-02-N-7851 being driven by its

driver 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 driving of the offending vehicle by

its driver.

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. It was pleaded that the petition itself is false

and frivolous in the eye of law. The age, avocation

and income of the claimant and the medical expenses

are denied. It was further pleaded that the quantum

of compensation claimed by the claimant is exorbitant.

Hence, he sought for dismissal of the petition.

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 himself was

examined as PW-1, one witness as PW-2 and

Dr.Nagaraj.B.N. was examined as PW-3 and got

exhibited documents namely Ex.P1 to Ex.P19. 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 driving of the offending vehicle by its

driver, as a result of which, the claimant sustained

injuries. The Tribunal further held that the claimant is

entitled to a compensation of Rs.365,300/- along with

interest at the rate of 9% p.a. and directed the

Insurance Company to deposit the compensation

amount along with interest. Being aggrieved, this

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.20,000/- per

month, but the Tribunal has taken the notional income

as merely as Rs.8,000/- per month.

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered disability of

37% to lower limb and 12% to whole body. But the

Tribunal has erred in taking the whole body disability

at only 7%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 4 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 granted by the Tribunal under the

heads of 'loss of amenities', 'pain and sufferings' and

other heads 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 she

was earning Rs.20,000/- per month, she has not

produced any documents to establish his income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Secondly, PW-3 the doctor has stated in his

evidence that the claimant has suffered disability of

37% to lower limb and 12% to whole body. PW-3 is

not a treated doctor. The Tribunal considering the

injuries sustained by the claimant, has rightly

assessed the whole body disability at 7%.

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 compensation.

Fourthly, the interest awarded by the Tribunal at

9% p.a. is on the higher side. Hence, he sought for

dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent driving of the offending

vehicle by its driver.

The claimant claims that he was earning

Rs.20,000/- per month. She has not produced any

documents to prove her income. Therefore, the

notional income has to be assessed as per the

guidelines issued by the Karnataka State Legal

Services Authority. Since the accident has taken

place in the year 2019, the notional income has to be

taken at Rs.14,000/- p.m.

As per wound certificate, the claimant has

sustained Bimallcoler fracture with dislocation right

leg. PW-3, the doctor has stated in his evidence that

the claimant has suffered disability of 37% to lower

limb and 12% to whole body. PW-3 is not a treated

doctor. Therefore, taking into consideration the

deposition of the doctor, PW-3 and injuries mentioned

in the wound certificate and discharge summary, the

Tribunal has rightly taken the whole body disability

at 12%. The claimant is aged about 28 years at

the time of the accident and multiplier applicable to

her age group is '17'. Thus, the claimant is

entitled for compensation of Rs.342,720/-

(Rs.14,000*12*17*12%) 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.28,000/- (Rs.14,000*2 months)

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

The claimant was treated as inpatient for more

than 4 days in the hospital and thereafter, has

received further treatment. Hence, I am inclined to

enhance the compensation awarded under the head of

'conveyance, nourishment and attendance charges'

from Rs.1,200/- to Rs.8,000/-.

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.10,000/- to Rs.25,000/-.

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 25,000 25,000 Medical expenses 186,860 186,860 Food, nourishment, 1,200 8,000 conveyance and attendant charges Loss of income during 8,000 28,000 laid up period Loss of amenities 10,000 25,000 Loss of future income 114,240 342,720 Future medical expenses 20,000 20,000 Total 365,300 635,580

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.635,580/-.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 9%

p.a. (enhanced amount shall carry interest at 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