Karnataka High Court

Smt. Lakshmamma vs Sri. Nagesh B P on 2 March, 2022

Bench: Pradeep Singh Yerur

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF MARCH, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

 MISCELLANEOUS FIRST APPEAL NO.4766 OF 2019 (MV)

BETWEEN:
SMT.LAKSHMAMMA
W/O.JAVAREGOWDA
AGED ABOUT 64 YEARS
R/AT DARASIHALLI VILLAGE
BAGUR HOBLI
CHANNARAYAPATTANA TALUK
HASSAN DISTRICT - 573 201          ... APPELLANT

(BY SRI RAJAMMA SOORYAMBAIL, ADVOCATE)

AND:
1.     SRI NAGESH B.P.
       S/O.PUTTARAJU
       MAJOR
       R/AT BYALADAKERE VILLAGE
       KASABA HOBLI
       CHANNARAYAPATNA TALUK
       HASSAN DISTRICT - 573 201

2.     THE MANAGER
       UNITED INDIA INSURANCE CO.LT.
       MADHU COMPLEX
       MYSURU ROAD
       CHANNARAYAPATNA TOWN & TALUK
       HASSAN DISTRICT - 573 201     ... RESPONDENTS

(BY SRI L.SREEKANTA RAO, ADVOCATE FOR R-2;
    R-1 IS SERVED AND UNREPRESENTED)
                         ---
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLE ACT,
1988 PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DATED 29.12.2018 PASSED IN MVC NO.1606/2017 BY IV
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ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSSAN
DISTRICT (SIT AT CHANNARAYAPATNA) AND ETC.

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


                         JUDGMENT

This appeal is preferred by the claimant challenging

the judgment and award passed by IV Additional District

and Sessions Judge, Hassan District (sit at

Channarayapatna) in MVC.No.1606/2017 dated

29.12.2018. This appeal is founded on the premise of

inadequacy of compensation.

2. Though this matter is listed for admission, with

consent of learned counsel on both sides, matter is taken

up for final disposal.

3. Parties to the appeal shall be referred to as per

their status before the tribunal.

4. Brief facts of the case is as under:

On 09.01.2017 at 12.00 noon, when the claimant was

walking with her son at Bagur Moodanahalli Road, near

garden land Murthy of Bagur Village, a motor cycle bearing

registration KA-13-X-5369 ridden by its rider came in a

rash and negligent manner so as to endanger human life

and safety, dashed against the claimant, due to which, she

suffered injuries to her body and immediately she was

shifted to NDRK Hospital, Hassan, where she was admitted

as an inpatient and spent huge amount towards medicine

and other incidental expenditure amounting more than

Rs.1,50,000/-.

4.1. It is stated that prior to the date of accident, the

claimant was hale and healthy and was aged 62 years and

was doing agriculture and animal husbandry and earning

Rs.25,000/- p.m. Due to the injuries sustained claimant,

has suffered permanent physical disability. Hence, she

preferred a claim petition seeking compensation for the

injuries suffered by her before the tribunal.

4.2. After service of notice to respondents, they

appeared before the tribunal and filed their statement of

objections denying the claim made by the claimant.

Respondent No.1-owner of the vehicle pleaded that since

motor cycle was insured with second respondent, any

liability fastened on him would have to be indemnified by

respondent No.2 as he had a valid insurance policy and a

valid driving licence as on date of accident, whereas

respondent No.2 took up the plea that the accident had

occurred due to fault of the claimant. Therefore, she was

negligent and it did not occur due to the rash and negligent

riding of the motor cycle. It was further pleaded that rider

of the motor cycle did not have valid and effective driving

licence and was not wearing a helmet as on the date of

occurrence of accident. It also denied the income of the

claimant and further pleaded that a false case was

registered in collusion with the owner of the motor cycle.

On the basis of these pleadings, respondent No.2 sought for

dismissal of claim petition. The tribunal framed relevant

issues for consideration on the basis of pleadings of the

parties.

4.3. In order to substantiate the issues and to

establish her case, the claimant got herself examined as

PW.1 and got marked the documents as per Exs.P1 to P16

in support of her case. On the contrary, the respondents

have not stepped into the witness box and did not produce

any document in support of their case.

4.4. On the basis of material evidence both oral and

documentary, the tribunal awarded compensation of

Rs.2,20,000/- with interest @ 9% p.a.

5. Being dissatisfied with the amount of compensation

awarded by the tribunal, the claimant is before this Court in

this appeal seeking enhancement of compensation awarded

by the tribunal.

6. It is the vehement contention of learned counsel

for claimant that the tribunal has grossly erred in not

appreciating the material evidence both oral and

documentary and has passed the erroneous order without

considering the relevant income which is pleaded by the

claimant in the claim petition. He further contends that

under all other heads, the tribunal has erred in awarding

meager compensation and same requires enhancement.

On the basis of these submissions, he seeks to allow the

appeal and consequently, enhancement of compensation.

7. Per contra, learned counsel for respondent-Insurer

vehemently contends that the tribunal has awarded just

and reasonable compensation on the basis of material

evidence both oral and documentary and all the aspects of

the matter has been considered by the tribunal while

awarding compensation and same does not warrant

interference by this Court. He further contends that in view

of the fact that no material evidence has been produced

regarding proof of income, the tribunal has rightly awarded

the global compensation of Rs.25,000/- towards permanent

disability, other incidental heads and loss of amenities. It is

his contention that no material is placed before the Court

which would warrant interference to enhance the income.

He further contends that with regard to other compensation

awarded under the other heads, the tribunal has rightly

awarded just and reasonable compensation. Hence, no

interference is warranted at the hands of this Court. On the

basis of these submissions, he seeks for dismissal of the

appeal.

8. Having heard the submissions of learned counsel

for appellant-claimant and learned counsel for respondent-

Insurer, the points that arise for consideration are:-

"(i) Whether the tribunal has erred in awarding meager compensation?

(ii) Whether there is any need to enhance the compensation awarded by the tribunal?"

9. I am of the considered opinion that on

consideration of entire material placed before the Court

both oral and documentary, the claimant is entitled for

marginal indulgence for enhancement of compensation for

the reasons mentioned hereinbelow:

(a) It is not in dispute that on 09.01.2017 at 12.00

noon, when the claimant was walking with her son at Bagur

Moodanahalli Road, near garden land Murthy of Bagur

Village, a motor cycle bearing registration KA-13-X-5369

ridden by its rider in a rash and negligent manner and

dashed against the claimant. Due to which, the claimant

sustained injuries and incurred the expenditure for

treatment and to establish and prove this fact, the claimant

has got examined herself and produced documents as per

Exs.P1 to P9. These are the Police records in which the

complaint-FIR and chargesheet has been laid as against

rider of the motor cycle. These Police records are not in

dispute and the same has not been challenged either by the

rider of the motor cycle or respondents herein. Hence, it

can be safely concluded that there is rashness and

negligent driving by the rider of motor cycle leading to the

accident, due to which, the claimant sustained tenderness

and swelling over right parietal region scalp, contusion over

right eye brow and CT scans dated 09.01.2017 and

11.01.2017 evidences left temporal parietal lobe, right

frontal lobe, acute sub dural hematoma and left parietal

lobe.

(b) Now the point that arise for further

consideration would be what should be the income to be

taken for awarding compensation. Admittedly, no

documentary evidence has been placed to show the proof of

income by the claimant either before the tribunal or before

this Court. In the absence of any such material, the Courts

are left with no option to make a guess work Admittedly, in

the present case on hand, no material has been placed

before the Court to show that the claimant has suffered

disability on account of accident. Hence, the tribunal has

awarded Rs.25,000/- towards permanent disability, other

incidental heads and loss of amenities etc.

claimant has suffered disability, the tribunal has not

awarded any compensation under the head of loss of future

earning capacity. However, it is stated that the claimant

was inpatient from 09.01.2017 to 17.01.2017 and to

establish this fact, no discharge summary has been

produced by the claimant. Apart from producing the

medical bills and prescription, no material documents are

produced to prove the fact of claimant having been

admitted in the Hospital. Hence, the tribunal has awarded

Rs.25,000/- towards permanent disability, other incidental

heads and loss of amenities etc. I am of the opinion that

this amount is on the lower side and calls for interference of

this Court for the reason that though the claimant may

have not produced documentary evidence of being inpatient

in the Hospital, the fact remains that she has suffered

tenderness and swelling over right parietal region scalp,

contusion over right eye brow and CT scan dated

09.01.2017 and 11.01.2017 evidences left temporal

parietal lobe, right frontal lobe, acute sub dural hematoma

and left parietal lobe. Under these circumstances, I deem it

appropriate to award compensation of Rs.50,000/- under

this head as against Rs.25,000/- awarded by the tribunal.

(d) Towards loss of pain and suffering, the tribunal

has awarded Rs.30,000/-. In view of the fact that the

claimant has suffered tenderness and swelling over right

parietal region scalp, contusion over right eye brow and CT

scan dated 09.01.2017 and 11.01.2017 evidences left

temporal parietal lobe, right frontal lobe, acute sub dural

hematoma and left parietal lobe and was inpatient

09.01.2017 to 17.01.2017, I deem it appropriate to award

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Rs.50,000/- under the head of pain and suffering as

against Rs.30,000/- awarded by the tribunal.

(e) The tribunal has awarded Rs.25,000/- under the

head of loss of income during laid up period, which calls for

interference and in view of taking the notional income at

Rs.11,000/- for the accident of the year 2017, I deem it

appropriate to award Rs.33,000/- (Rs.11,000/- x 3) under

the head of loss of income during laid up period as against

Rs.25,000/- awarded by the tribunal.

(f) Towards medical expenses, the tribunal has

awarded Rs.1,15,000/-. I do not find any reason to

interfere with the same as it has been awarded as per

actual bills as Exs.P10 and P11.

(g) Towards attendant charges, the tribunal has

awarded Rs.25,000/-. I do not find any reason to interfere

with the same and the same is retained.

(h) Towards loss of amenities, the tribunal has not

awarded any specific amount, but has awarded a global

amount of Rs.25,000/- along with disabilities and other

incidental heads as stated above, which in my opinion an

error committed by the tribunal. Hence, I deem it

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appropriate to award Rs.25,000/- under the head of loss

of amenities.

(i) In view of the discussions made above and on the

basis of the submissions of learned counsel, the claimant

deserves enhancement of compensation as stated in the

table below:

          Heads           Awarded by the          Awarded by
                             tribunal              this Court
                             (in Rs.)               (in Rs.)
Pain and Suffering              30,000-00             50,000-00
Medical expenses              1,15,000-00           1,15,000-00
Permanent disability
and other incidental                25,000-00         50,000-00
heads       loss   of
amenities etc.
Attendant charges                   25,000-00         25,000-00
Loss of income during               25,000-00         33,000-00
laid up period
Loss of amenities                   -                 25,000-00
        TOTAL                   2,20,000-00        2,98,000-00

For the aforesaid reasons, I pass the following:

ORDER

i) The appeal is allowed-in-part;

ii) The judgment and award passed by IV

Additional District and Sessions Judge, Hassan

District (sit at Channarayapatna) in

MVC.No.1606/2017 dated 29.12.2018 is

modified.

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iii) The claimant is entitled for total compensation

of Rs.2,98,000/- as against Rs.2,20,000/-

awarded by the tribunal;