Karnataka High Court

Smt. Savithramma vs Mrs. Manjula B S on 16 June, 2022

Bench: H T Prasad

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF JUNE 2022

                     BEFORE

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

          MFA No.8565 OF 2019 (MV)


BETWEEN:

SMT. SAVITHRAMMA
W/O GANGIAH,
AGED ABOUT 43 YEARS,
R/AT NO.388/2, 6TH CROSS,
KASTHURI LAYOUT,
RAJGOPAL NAGAR,
BENGALURU-560 058.
                                     ...APPELLANT

(BY SRI. JAGADEESH H.T., ADVOCATE)

AND:

1.   MRS. MANJULA B. S.
     W/O CHANDREGOWDA H. J.
     NO.2011, 6TH CROSS,
     NEAR RES SCHOOL,
     D. I. AREA, HEGGANAHALLI,
     BENGALURU-560 091.

2.   THE MANAGER
     UNITED INDIA INSURANCE CO.LTD
     REGIONAL OFFICE,
                          2



     T.P. HUB, 5TH AND 6TH FLOORS,
     KRISHIKA SAMAJ BUILDING,
     HUDSON CIRCLE,
     OPP. BBMP HEAD QUARTER,
     NRUPATHUNGA ROAD,
     BENGALURU-560 001.
                                 ...RESPONDENTS

(BY SRI. O. MAHESH, ADVOCATE FOR R2.
NOTICE TO R1 IS DISPENSED WITH)


     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
08.08.2019 PASSED IN MVC NO.429/2018 ON THE
FILE OF THE III ADDITIONAL JUDGE AND MEMBER
MACT, COURT OF SMALL CAUSES, BENGALURU
(SCCH-18), PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                     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 08.08.2019 passed

by the Court of III Additional Judge and Motor

Accident Claims Tribunal, Bengaluru in MVC

No.429/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 29.11.2017, at about 11.30

a.m., the claimant was proceeding as a pillion rider on

motorcycle bearing registration No.KA-05-HG-0611.

When they reached in front of ESI hospital, SRS road,

Bengaluru, at that time, Eicher canter bearing

registration No. KA-11-9755 being driven by its driver

at a high speed and in a rash and negligent manner,

dashed to the vehicle in which the claimant was

proceeding. 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.

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 herself was

examined as PW-1, another witness as PW-2 and Dr.

S.A. Somashekara was examined as PW-3 and got

exhibited documents namely Ex.P1 to Ex.P15. On

behalf of the respondents, neither any witnesses were

examined nor any documents were 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.2,43,750/- along with

interest at the rate of 8% 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 cutter work at Vinayaka Industries and

earning Rs.20,000/- per month, but the Tribunal has

taken the notional income as merely as Rs.7,500/- per

month.

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

evidence that the claimant has suffered disability of

40% to the spine and 20% to the whole body. But the

Tribunal has erred in taking the whole body disability

at only 11%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. She was treated as

inpatient for a period of 10 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 her 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

40% to the spine and 20% to the whole body. The

Tribunal considering the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 11%.

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.

Lastly, he contended that the interest awarded

by the tribunal at 8% is on higher side, contrary to

the judgment of a Division Bench of this Court in the

case of JOYEETA BOSE -V- UNITED INSURANCE

CO. 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 she 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 2017, the notional income has to be

taken at Rs.11,000/- p.m.

As per wound certificate, the claimant has

sustained tenderness present over lower back and

Spine-fracture L3-4, L4-5 with fracture of L5. PW-3,

the doctor has stated in his evidence that the claimant

has suffered disability of 40% to the spine and 20% to

whole body. Therefore, taking into consideration the

deposition of the doctor, PW-3 and injuries mentioned

in the wound certificate, the whole body disability can

be assessed at 13%. The claimant is aged about 42

years at the time of the accident and multiplier

applicable to her age group is '14'. Thus, the

claimant is entitled for compensation of Rs.2,40,240/-

(Rs.11,000/-*12*14*13%) 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.33,000/- (Rs.11,000*3 months)

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

The claimant was treated as inpatient for more

than 10 days in the hospital and thereafter, has

received further treatment. 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.20,000/- to Rs.35,000/-

and under the head of 'pain and sufferings' from

Rs.35,000/- to 40,000/-.

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 35,000 40,000 Medical expenses 5,150 5,150 Food, nourishment, 10,000 10,000 conveyance and attendant charges Loss of income during 15,000 33,000 laid up period Loss of amenities 20,000 35,000 Loss of future income 1,38,600 2,40,240 Future medical expenses 20,000 20,000 Total 2,43,750 3,83,390

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.3,83,390/-.

In view of the law laid down by a Division Bench

of this Court in JOYEETA BOSE (supra), enhanced

compensation carries interest at 6% p.a.

The Insurance Company is directed to deposit

the compensation amount along with interest at 8%

p.a. (enhanced compensation shall carry interest at

6% per annum) from the date of filing of the claim

petition till the date of realization, within a period of