Karnataka High Court
Miss. C. Sujatha @ Sujatha ... vs Divya. S on 28 June, 2022
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.4560/2018 (MV)
BETWEEN:
MISS. C. SUJATHA @
SUJATHA CHALAGONVALASA
D/O RAMAKRISHNA
AGED ABOUT 31 YEARS,
R/AT: NO.1C & 2C,
PLAT NO.3 & 3A,
EOIZ INDUSTRIAL AREA,
ADJACENT TO ITPL
SADARAMANGALA VILLAGE,
K R PURAM HOBLI,
BANGALORE - 560 066.
... APPELLANT
(BY SMT. NALINA KUMARI K.G., ADVOCATE )
AND:
1 . DIVYA. S,
D/O SRIKANTH,
R/AT: NO.3A, SAI SPURTHI APARTMENT,
NO.32, 3RD CROSS, KANAKANAGAR,
R.T. NAGAR,
BANGALORE - 560 032.
(OWNER OF THE CAR BEARING
NO.KA-04-MQ-596)
2 . THE MANAGER,
ICICI LOMBARD GENERAL
INSURANCE CO. LTD,
2
NO.89, 2ND FLOOR,
SUR COMPLEX,
HOSUR MAIN ROAD , MADIWALA,
BANGALORE - 560 068.
... RESPONDENTS
(R1-NOTICE DISPENSED WITH V/O DATED 04-12-2018;
BY SRI. B.C.SHIVANNE GOWDA, ADVOCATE FOR R2)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
01.01.2018 PASSED IN MVC NO.353/2016 ON THE FILE OF
XXI ACMM & XXIII ASCJ, MACT, COURT OF SMALL
CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION; AND ETC.,
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant-claimant
under Section-173(1) of the Motor Vehicles Act,
challenging the judgment and award dated
01.01.2018, passed in MVC No.353/2016, on the file
of XXI A.C.M.M. & XXIII A.S.C.J, MACT, Bengaluru,
seeking enhancement of compensation awarded by
the tribunal.
2. On 27.10.2015 at about 7.30 p.m. while
claimant was crossing the road near JP Margan to
Kanthi Sweets, Kadubisinahalli, Bangalore, a car
bearing registration No.KA-04-MA-596 being driven
by its driver in a rash and negligent manner dashed
against the claimant. As a result of the aforesaid
accident, the claimant sustained grievous injuries.
Thereafter, appellant-claimant was shifted to Sakra
Hospital, Bangalore and later to Christian Medical
College, Vellore. Claimant has undergone surgery and
was inpatient for three weeks and was in ICU for two
days and also taken follow-up treatment.
3. Before the accident the appellant-claimant
was working as Associate Consultant Operations at
Tangoe India Softek Services Pvt Ltd., and earning a
sum of Rs.18,580/- per month. Due to the injuries
sustained in the accident, she was not able to attend
the daily work. Hence, the appellant has filed a claim
petition under Section 166 of the Motor Vehicles Act,
1988 seeking compensation for the injuries sustained
in the aforesaid accident.
4. Insurance-company has appeared before
the tribunal and contested the matter by filing written
statement. It contended that the liability, if any, is
subject to terms and conditions of the policy. The
Insurance Company further contended that the
offending vehicle is not involved in the accident and
false case is registered against the said vehicle by
colluding with the owner and police.
5. After hearing the learned counsel for both
the parties, the Tribunal has awarded a compensation
of Rs.76,800/- along with interest at 8% per annum
from the date of petition till realization fixing 20% of
the contributory negligence on the claimant.
6. Being aggrieved by the aforesaid
compensation and contributory negligence, the
claimant is before this Court.
7. Learned counsel for the appellant-claimant
submitted that the accident had occurred due to the
rash and negligent driving of the driver of the car
bearing registration No.KA-04-MQ-596 and
respondent No.1 being the owner and respondent
No.2 being the insurer of the offending vehicle, are
jointly and severally liable to pay the compensation to
the appellant. He further submitted that the appellant-
claimant was working as Associate Consultant
Operations at Tangoe India Softek Services Pvt Ltd.
and was drawing a salary of Rs.18,580/- p.m. but the
Trial Court has considered only Rs.8,000/- p.m. which
is absolutely on the lower side. Learned counsel for
the appellant further submitted that the Tribunal
grossly erred in holding the contributory negligence on
the appellant to the extent of 20%. Hence, he
submitted that the total compensation awarded by the
tribunal is meager and same requires to be enhanced
substantially.
8. On the other hand, the learned counsel
appearing for the respondent No.2 - insurance
company submitted that the compensation awarded
by the Tribunal is correct and adequate. There is no
need to make any interference for enhancement of
compensation therefore prays for dismissal of the
appeal.
9. The tribunal has granted compensation
under various heads as follows:
1. Pain & suffering Rs.40,000/-
2. Medical expenses NIL
3. Loss of income during laid Rs.16,000/-
up period
4. Loss of future income NIL
5. Loss of future amenities and Rs.20,000/-
happiness
6. Attendant, conveyance, food Rs.20,000/-
and nourishment charges
TOTAL Rs.96,000/-
10. Ex.P5 is the wound certificate and PW.2 is
a doctor who has supported version of the claimant to
prove that the appellant had suffered following
injuries:
1) Fracture neck of femur right and
2) Right distal femur intra articular fracture.
As per the medical evidence aforesaid injuries
are grievous in nature. Therefore, the compensation of
Rs.40,000/- awarded under the head of "Pain &
suffering" is correct and does not call for interference
at the hands of this Court.
11. The tribunal has not granted any
compensation towards medical expenses to
substantiate that she has spent the amount towards
medical expenses and hospital charges as per medical
bills. Therefore, the Tribunal has not awarded any
compensation under the head Medical expenses and
hospital charges. Perhaps the appellant-claimant must
have got reimbursement from her company.
12. Ex.P9 is salary slip which shows that the
appellant was receiving salary of Rs.18,580/- per
month. The Tribunal has awarded a compensation of
Rs.16,000/- under the head of "loss of income during
the laid up period". The appellant was working as
Associate Consultant operations at Tangoe India
Softek Services Pvt. Ltd., The tribunal had opined that
the author of the salary slip is not examined.
Therefore, a sum of Rs.8,000/- is taken as notional
income. The observations of Tribunal in this regard is
not correct. Just because the author of the salary slip
is not examined that cannot be a ground to reject the
salary slip. Due to the injuries above stated the
appellant must have been at rest for a period of three
months. Hence, considering the monthly income at
Rs.18,580/- for three months a compensation of
Rs.55,740/- is awarded under the head of "loss of
income during the laid up period" and medical
treatment period.
13. The tribunal has awarded a compensation
of Rs.20,000/- towards loss of future amenities and
happiness. This amount calculated by the Tribunal is
on lower side. The appellant is a woman aged about
29 years as on the date of the accident and it is
contended that the appellant was unmarried at the
time of accident. Certainly the injuries caused to the
appellant i.e., fracture of thigh bone would affect her
comfortness i.e., suffering from discomfort,
inconvenience in life, loss of enjoyment in life etc.,
Therefore, a sum of Rs.50,000/- is awarded under the
head of "loss of amenities and happiness".
14. Further the tribunal has awarded a sum of
Rs.20,000/- towards attendant, conveyance, food and
nourishment charges, which is found to be on lower
side. The appellant had undergone treatment initially
for a period of fourteen days as inpatient i.e., from
30.10.2015 to 14.11.2015 and undergone surgery and
appellant is also required to undergo further treatment
periodically. Therefore, considering all these aspects,
a sum of Rs.35,000/- is awarded under the head
"attendant, conveyance, food and nourishment
charges".
15. Further, the appellant has suffered fracture
to the femur and surgery was conducted. Certainly
some rod and nails were fixed and for removal of the
same the appellant has to spend some expenses
towards future medical expenses. Therefore, a sum of
Rs.15,000/- is awarded under the head of "future
medical expenses".
16. The tribunal had apportioned negligence
between the claimant and driver of the car as per
20:80. Therefore, learned counsel for the appellant
submitted that there is no negligence on the part of
the appellant and accident was entirely due to the
rash & negligent driving by the driver of the car and
prays to attribute 100% negligence on the part of the
driver of the car.
17. When the appellant was crossing the road
near JP Margan to kanthi sweets, Kadubisinahalli,
Bangalore at that time the driver of the car while
driving had hit the appellant. Therefore, the tribunal
on the ground that since the appellant was not
crossing the road at zebra crossing, attributed 20:80
of contributory negligence between the appellant and
the driver of the car. Considering the place of
accident, which is just outskirt of Bangalore city while
the appellant was crossing the road near JP Margan to
Kanthi sweets, Kadubisinahalli, Bangalore, there were
many shops and other commercial business activities,
commercial building and houses near the place of the
accident. Therefore, in these circumstances, it is the
duty of the driver of the vehicle to be cautious and at
the same time, the appellant ought to be cautious
while crossing the road which is not zebra crossing.
Therefore, this court is of the opinion that the
appellant has also contributed her negligence to some
extent and it can be held 10% on the part of the
appellant since it is outskirt of Bangalore and there
are houses and other business activities in and around
the place of accident. Accordingly, 90% negligence is
attributed on the part of the driver of the car and 10%
on the part of the appellant. Therefore, the
contributory negligence is modified to the extent of
10:90% between the appellant and driver of the car.
18. Thus in all the appellant is entitled for a
compensation under various heads as follows:
Sl Particulars Amount
No.
1. Pain & suffering Rs.40,000/-
2. Medical expenses Rs.15,000/-
3. Loss of income during laid Rs.55,740/-
up period
4. Loss of future amenities and Rs.50,000/-
happiness
5. Attendant, conveyance, food Rs.35,000/-
and nourishment charges
TOTAL 1,95,740.00
Less: 10% negligence 19,574.00
attributed by the petitioner
Total compensation to be 1,76,166.00
paid by respondent
19. Accordingly, I pass the following:
ORDER
i. The appeal is allowed in part.
ii. The appellant is entitled for an additional
compensation of Rs.1,76,166/- (Rupees One Lakh
Seventy Six Thousand One Hundred and Sixty Six
Only), along with interest at 6% per annum from the
date of filing of the petition till deposit in addition to
what has been awarded by the Tribunal.
iii. Registry is directed to return the Trial Court
Records to the Tribunal, along with certified copy of
the order passed by this Court forthwith without any
delay.
iv. Draw award accordingly.
Sd/-
JUDGE
DS
