Karnataka High Court
Smt Savithramma vs Sri Ravikumar G S on 8 March, 2022
Bench: Pradeep Singh Yerur
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR
M.F.A. NO.6990 OF 2019 (MV)
BETWEEN:
SMT.SAVITHRAMMA,
AGED ABOUT 40 YEARS,
W/O NANJUNDA,
R/AT GOPALAPURA VILLAGE,
KASABA HOBLI,
MANDYA TALUK AND DISTRICT - 571 401.
... APPELLANT
(BY SRI.P.NATARAJU, ADVOCATE)
AND:
1. SRI.RAVIKUMAR G.S.,
MAJOR,
S/O SHIVAPRASAD G.B.,
R/AT NO.40, GANADALU VILLAGE,
MANDYA TALUK
AND DISTRICT - 571 401.
2. THE BRANCH MANAGER,
IFFCO TOKIO GENERAL
INSURANCE COMPANY LTD.,
1ST FLOOR, K.R.ROAD, VIDYANAGAR,
MANDYA - 571 401.
... RESPONDENTS
(BY SRI.E.I.SANMATHI, ADVOCATE FOR R2;
R-1 SERVED UNREPRESENTED)
2
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
17.11.2018 PASSED IN MVC NO.144/2017 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE AND MACT,
MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS M.F.A. COMING ON FOR FURTHER ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This appeal is preferred by the claimant being
dissatisfied with the Judgment and Award passed by the II
Addl. Senior Civil Judge and MACT at Mandya in MVC
144/2017, dated 17.11.2018. Appeal is founded on the
ground of inadequacy of compensation.
2. Brief facts of the case are
On 21.08.2016 at about 5.20 p.m., when the
claimant was standing by the side of the road at that time,
one goods Tempo vehicle bearing Registration No. KA-11-
B-0214 came from Nagamangala side proceeding towards
Mandya in a high speed in a rash and negligent manner so
as to endanger human life and dashed against the
claimant due to which the claimant fell down in a ditch and
sustained injuries to her head, right hand, right shoulder
and right leg. Due to the said impact, the claimant being a
lady aged 38 years lost her consciousness which was
observed by passerby villagers who shifted her to nearby
Government Hospital at Mandya. The claimant underwent
surgery of her right arm and implanted a rod to the hand
and she had to spend huge amount for treatment and for
her surgery and also for future medical treatment she
would require further amount. It is stated that due to the
injuries suffered by the claimant arising out of accident
due to the rash and negligent driving of the goods vehicle
she has suffered permanent disability to her right hand
and dislocation of hand and implanting of the rod on her
right hand which diminishes her working ability and the
capacity to earn income as she was earning prior to the
date of accident.
It is further stated that the family members of the
claimant were dependent on the income of the claimant
and hence she preferred the claim petition seeking
compensation before the Tribunal.
On notice being issued, the respondents filed their
statement of objections. First respondent being the owner
of the vehicle has shifted the liability to the second
respondent who is the insurer and has pleaded that since
the vehicle is insured with the second respondent, the
liability will have to be borne by the second respondent -
insurer. The second respondent - insurer filed its detailed
statement of objections denying the claim made by the
claimant and contended that the driver of the goods
vehicle was not possessing a valid driving licence as on the
date of accident.
3. On the basis of pleadings adduced by the
parties, Tribunal framed relevant issues.
4. In order to prove and establish the case,
claimant got examined herself as P.W.1 and got marked
exhibits P1 to P37. She also got examined the doctor as
P.W.2 in support of her case. On the other hand, the
respondents did not step into the witness box and neither
did they produce any documents in their favor.
5. On hearing the arguments of both parties and
on perusal of the evidence both oral and documentary, the
Tribunal passed the Award granting compensation of
Rs.87,443/- with interest at 6% per annum from the date
of petition and directed the second respondent insurer to
indemnify the first respondent and to make the payment
of compensation within the appeal period. Being aggrieved
by the meagre amount of compensation, claimant is before
this Court seeking enhancement of compensation.
6. It is the vehement contention of the learned
counsel appearing on behalf of the claimant that Judgment
and Award passed by the Tribunal is arbitrary and the
same is illegal as the Tribunal has not considered the
material documents both oral and documentary and has
erred in awarding meagre compensation which is not
commensurate to the injury suffered by the claimant. It is
further contended by the learned counsel for the claimant
that the income assessed by the Tribunal is on the lower
side as the Tribunal has taken income of Rs.4,500/- per
month instead of Rs.9,500/- for the accident having
occurred in the year 2016. It is further contended by the
learned counsel that the Tribunal has erred in not
appreciating the evidence of doctor P.W.2 who assessed
the permanent disability to the extent of 20% to the right
upper limb and the Tribunal has erred in taking disability
to the extent of 3% to the whole body instead of 6.7% as
assessed by the doctor. Learned counsel further contends
that the Tribunal has also erred in not awarding proper
compensation under the head of loss of income during
laid-up period and also awarded meagre income under the
head "loss of future income" to the claimant and also the
Tribunal has awarded meagre compensation under the
head "pain and sufferings" which requires to be enhanced.
7. Per contra, learned counsel for the insurer Sri.
E.I. Sanmathi vehemently contends that the Judgment and
Award passed by the Tribunal is in accordance with the
Rules and Regulations and also is commensurate to the
injuries sustained by the claimant and the award of
compensation is proper and the same does not require any
interference by this Court. Learned counsel for the insurer
further contends that the income adopted by the Tribunal
is on the right side as no documentary evidence has been
produced by the claimant to show proof of her income.
Hence, the Tribunal left with no opportunity has taken
reasonable and just amount to arrive at just compensation
in favour of the claimant.
8. On the basis of these above submissions, the
learned counsel for the claimant seeks for enhancement of
compensation whereas the learned counsel appearing on
behalf of insurer seeks for dismissal of the appeal.
9. Having heard learned counsel for the claimant
as well as learned counsel for the insurer and on perusal of
the material evidence both oral and documentary and the
submissions placed by the learned counsel for the parties,
I am of the opinion that the claimant is entitled for
marginal indulgence in the matter and hence the
compensation is required to be enhanced marginally in the
matter for the reasons mentioned herein below.
10. It is not in dispute that on 21.08.2016 at about
5.20 p.m., when the claimant was standing by the side of
the road, a Goods Tempo vehicle bearing Registration No.
KA-11-B-0214 dashed against her by coming in a high
speed in a rash and negligent manner causing serious
injuries to the body of the claimant due to which the
claimant suffered grievous injuries and had to undergo
surgery of her right arm and she got implanted a rod in
her hand. It is also not in dispute that the claimant, due
to the occurrence of the accident, has undergone surgery
and has expended amount towards medical expenses and
for treatment of the injuries in the hospital. It is also
stated by the doctor P.W.2 that the claimant would require
further treatment and future medical expenses would be
required.
11. In order to establish the case, the claimant got
examined herself as P.W.2 and produced Exs.P1 to P4
which are the police records along with Ex.P8 which is a
final report / chargesheet. On perusal of these police
records it is apparent on the face of the record that on
investigation, the police filed the chargesheet as against
the driver of the goods tempo vehicle thereby alleging
rashness and negligence in driving against the driver of the
goods tempo vehicle. It is not the case of the insurer or
the respondent - owner that the police records are false
and that the chargesheet filed against the driver of the
vehicle is challenged. Hence, by the pleadings in the case
of the respondents, it can be safely concluded that the
rash and negligent driving of the goods tempo vehicle is
attributed to the driver of the goods tempo vehicle.
Hence, there being no other contra evidence produced by
the driver or the respondents, it can be safely stated that
the driver of the goods tempo vehicle was responsible and
involved in the accident due to the rash and negligent
driving of the vehicle.
12. Now coming to the aspect of income of the
claimant, admittedly the claimant has not produced any
material to show proof of her income. Though the claimant
has stated that she was working as a coolie and doing milk
vending business and earning Rs.250/- per day, there
being no material evidence to prove her income. Tribunal
or this Court is left to do guess work which should be
adopted on the basis of the common sense and reasonable
calculation of the assessment of income that the claimant
would draw considering her avocation. Since it is averred
that she was a milk vendor, this Court will have to do a
guesswork based on the notional income chart prepared by
the Legal Services Authority. Therefore, considering the
year of the accident which is 2016, the notional income
mentioned in the chart is Rs.9,500/-. Accordingly, the
income of the claimant is assessed at Rs.9,500/- per
month as against Rs.4,500/- adopted by the Tribunal. Age
of the claimant is taken by the Tribunal at 33 years and
accordingly the multiplier of 16 is adopted by the Tribunal
in view of the Judgment of the Hon'ble Apex Court in Sarla
Verma & Others Vs. Delhi Transportation Corporation
& Another, reported in (2009) 6 SCC 121. The same is
left intact.
13. Claimant has got examined the doctor as
P.W.2 to assess the disability suffered by her. It is deposed
by the doctor P.W.2 that the claimant has undergone
permanent disability to the right upper limb to an extent of
20% and to the whole body the disability assessed is at
6.7%. However the Tribunal has disagreed with the
opinion expressed by the doctor and assessed the
disability to the whole body to an extent of 3% as against
6.7% arrived at by the doctor who is an expert.
14. While assessing the disability to a person, it is
required to be seen that on the basis of the disability what
would be the percentage of loss of earning caused due to
the disability suffered by the claimant. In the present case
on hand, admittedly there is disability of right upper limb
to the extent of 20% wherein there is a surgery and
implant of a rod on the right hand of the claimant. She
being aged 33 years was doing coolie work and milk
ending business has suffered disability to the right hand
and a rod has been implanted. The disability assessed by
the doctor who is an expert had to be adopted by the
Tribunal no doubt with circumspection, and hence the
reduction of permanent disability to the whole body to the
extent of 3% cannot be sustained. I agree with the
contention raised by the learned counsel for the claimant
that the same requires to be enhanced to 6.7%. as
reasonable compensation will have to be made based on
the disability sustained by the claimant and the loss of
future earning capacity that the claimant would incur.
Therefore, accordingly I adopt 5% to be the disability that
would be suffered by the claimant towards loss of her
earning capacity. Therefore computation of the "loss of
future income" due to permanent disability will be as
follows:
9500 x 12 x 16 x 5/100 = 91,200/-
And thus, claimant is held entitled to Rs.91,200/- towards
the loss of future income due to permanent disability as
against Rs.25,920/- awarded by the Tribunal.
15. Tribunal has arrived at loss of income of the
claimant during laid-up period at Rs.4,500/- for one month
period. The monthly income of claimant has been
enhanced by this Court as mentioned earlier. Since the
claimant has suffered disability to her upper limb and a rod
has been implanted, I deem it appropriate to assess laid-
up period for three months and accordingly, loss of income
during laid-up period would be 9500 x 3 i.e., Rs.28,500/-
as against Rs.4,500/- awarded by the Tribunal.
16. Tribunal has awarded Rs.25000/- under the
head "pain and sufferings". I deem it proper to enhance
the same to Rs.35,000/-. Towards "medical expenses and
future medical expenses", the Tribunal has awarded
Rs.9,022.96 plus Rs.2000, totally Rs.11,022.96. The same
is rounded off to Rs.12,000/-. Towards "attendant
charges, conveyance, nursing care, nourishment and other
incidental expenses", the Tribunal has awarded Rs.6,000/-.
Whereas the claimant was inpatient for ten days in the
hospital. Accordingly I enhance it to Rs.10,000/- as against
Rs.6,000/- awarded by the Tribunal. Towards "physical
disability affecting future amenities", the Tribunal has
awarded Rs.15,000/-. The same requires enhancement.
Accordingly Rs.25,000/- is awarded as against Rs.15,000/-
awarded by the Tribunal.
17. On the basis of the above discussion, I deem it
proper that the claimant deserves enhancement of
compensation as mentioned in the table below:
Heads Amount (in
Rupees)
Pain and sufferings 35,000/-
Medical expenses and 12,000/-
future medical expenses
Attendant charges, 10,000/-
conve-yance, nursing
care, nourishment and
other incidental
expenses
Loss of income during 28,500/-
laid-up period
Loss of future income 91,200/-
Physical disability 25,000/-
affecting future
amenities
Total 2,06,700/-
For the reasons discussed above, I pass the
following:
ORDER
(i) The appeal filed by the claimant is partly
allowed.
(ii) Judgment and Award passed by the II
Addl. Senior Civil Judge and MACT at
Mandya in MVC 144/2017, dated
17.11.2018 is modified.
(iii) The claimant is entitled for enhancement of
compensation. Accordingly the
compensation is enhanced from
Rs.87,443/- to Rs.2,06,700/-. All other
terms and conditions imposed by the
Tribunal shall stand intact.
(iv) The claimant shall be entitled to interest on
the enhanced compensation at 6% p.a.
from the date of the petition, which shall
be deposited by the insurer within a period
of six weeks from the date of receipt of a
copy of this Judgment.
(v) Claimant shall not be entitled to interest for
delayed period of 114 days.
Sd/-
JUDGE
sac*
