Bhagyamma vs G.H.Gowda
2022 Latest Caselaw 9580 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 24TH DAY OF JUNE 2022

                        BEFORE

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

              MFA No.2432 OF 2020(MV)
BETWEEN:

BHAGYAMMA
W/O NARASIMHARAJU
AGED ABOUT 49 YEARS
RESIDING BADAKKANAHALLI VILLAGE
MADDAKKANAHALLI POST
SIRA TALUK,
NOW R/ AT
2ND CROSS, 1ST MAIN
VIDYANAGARA
TUMAKURU TOWN 572101.
                                         ...APPELLANT
(BY SRI.SHANTHARAJ K., ADV.)

AND:

1.     G.H.GOWDA
       S/O LATE K GOVINDAPPA
       AGED ABOUT 32 YEARS
       RESIDING AT NO.26
       2ND CROSS, KEB COLONY
       KOTHITHOPU
       TUMKUR TOWN 572101.

2.     LIBERTY VEDIOCON
       GEN INS CO. LTD.
       BY ITS MANAGER
       ALYSA BUILDING
                           2



     1ST FLOOR, OFFICE NO.1
     REAR PORTION, RICHMOND ROAD
     BENGALURU 560025.
                                       ...RESPONDENTS
(BY SRI.RAVI S SAMPRATHI, ADV. FOR R2:
    NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT   AGAINST     THE   JUDGMENT    AND    AWARD
DATED:12.11.2019 PASSED IN MVC NO.336/2018, ON
THE FILE OF THE VI-ADDITIONAL DISTRICT AND
SESSIONS JUDGE, TUMAKURU, 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:

                    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 12.11.2019 passed

by the VI Additional District and Sessions Judge,

Tumakuru in MVC No.336/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 31.12.2017 at about 03.30

P.M., when the claimant along with her relatives were

traveling in a Car bearing Registration No.KA-02-MJ-

6805 to go to Bhutappanagudi, Sira Taluk, to perform

pooja, the driver of the said Car drove the same in a

rash and negligent manner and endangerous to

human life and lost control over the vehicle and

toppled down. 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 driver of the

offending vehicle did not have valid driving licence as

on the date of the accident and without fitness

certificate, the vehicle was plied on the road. Hence,

the owner has violated the policy conditions. The

liability is subject to terms and conditions of the

policy. 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 herself was

examined as PW-1 and Dr.Prasad was examined as

PW-2 and got exhibited documents namely Ex.P1 to

Ex.P19. On behalf of the respondents, no witness was

examined but exhibited documents namely Ex.R1 and

Ex.R1(a). 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.6,22,000/- along with interest at the rate of 6%

p.a. and directed the Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. Sri Shantharaj. K, learned counsel for the

claimant has raised the following contentions:

Firstly, even though the claimant claims that she

was doing tailoring work and milk vending and earning

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

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

Secondly, due to the accident, the claimant has

sustained grievous injuries. She has examined the

doctor as PW-2, who has stated in his evidence that

the claimant has suffered permanent disability of 20%

to the whole body is on lower side. She was treated as

inpatient for a period of 12 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, Sri Ravi S. Samprathi,

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-2, the doctor has stated in his

evidence that the claimant has suffered permanent

disability of 20% to the whole body. The Tribunal

considering the injuries sustained by the claimant, has

rightly assessed the whole body disability at 20%.

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. 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 pain in her mid and lower back and not able

to bend as before lift weight. PW-2, the doctor has

stated in his evidence that the claimant has suffered

permanent disability of 20% to the whole body.

Therefore, taking into consideration the deposition of

the doctor, PW-2 and injuries mentioned in the wound

certificate, the Tribunal has rightly taken the whole

body disability at 20%. The claimant is aged about

47 years at the time of the accident and multiplier

applicable to his age group is '13'. Thus, the claimant

is entitled for compensation of Rs.3,43,200/-

(Rs.11,000*12*13*20%) 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 03 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'.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. She

was treated as inpatient for more than 12 days in the

hospital. 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.30,000/- to Rs.40,000/- and 'pain and suffering'

from Rs.30,000/- to Rs,50,000/-.

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 30,000 50,000 Medical expenses 2,57,875 2,57,875 Food, nourishment, 30,000 30,000 conveyance and attendant charges Loss of income during 25,000 33,000 laid up period Loss of amenities 30,000 40,000 Loss of future income 2,49,600 3,43,200 Total 6,22,475 7,54,075 * The Tribunal has rounded of the award amount from Rs.6,22,475/- to Rs.6,22,000/-

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.7,54,075/- as against Rs.6,22,000/- awarded

by the Tribunal.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 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

HA/-