Karnataka High Court

Boramma vs Administrative Medical Officer on 9 March, 2022

Bench: Pradeep Singh Yerur

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 9TH DAY OF MARCH, 2022

                          BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

 MISCELLANEOUS FIRST APPEAL NO.4691 OF 2019 (MV)

BETWEEN:
BORAMMA
W/O.LATE THIMMAIAH
AGED ABOUT 68 YEARS
R/AT 3RD CROSS
S.HONNAIAH BADAVANE
SUGAR TOWN
MANDYA CITY - 571 405                   .. APPELLANT

(BY SRI M.Y.SREENIVASAN, ADVOCATE)

AND:
1.     ADMINISTRATIVE MEDICAL OFFICER
       GENERAL HOSPITAL
       MADDUR TOWN
       MANDYA DISTRICT - 571 421

2.     K.G.I.D
       D.C.OFFICE ROAD
       MANDYA - 571 401              ... RESPONDENTS

(NOTICE TO R-1 IS DISPENSED WITH V.O.D 13.12.2021)
                         ---
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLESA ACT
PRAYING TO MODIFY THE JUDGEMENT AND AWARD
PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE & MACT
AT MANDYA IN MVC.NO.1220/2016 ON 05.10.2018,
THEREBY ENHANCING THE COMPENSATION       SUITABLY
WITH INTEREST AND ETC.

     THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                              -2-



                         JUDGMENT

This appeal is preferred by the claimant aggrieved by

the judgment and award passed by the Principal Senior Civil

Judge and MACT, Mandya in MVC.No.1220/2016 dated

05.10.2018. This appeal is premised on the ground 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 rankings before the tribunal.

4. Brief facts of the case are as under:

On 14.08.2016 when the claimant was going to her

house from Gutalu Road towards S.Honnaiah Badavane,

Mandya city on Bengaluru-Mysuru Road at 11.15 p.m. near

sugar factory, at that time, one Ambulance bearing

registration No.KA.11/G-534 being driven by its driver with

high speed in a rash and negligent manner came from

Maddur side towards Mysuru side so as to endanger human

life and safety and dashed against the claimant, as a result

of which, the claimant sustained grievous injury to her left

leg, hand, face, foot and other parts of the body. It is

stated that the accident occurred solely due to the rash and

negligent driving of the driver of the ambulance and

immediately, the claimant was taken to General Hospital,

Mandya where she took initial treatment and was shifted to

Victoria Hospital, Bengaluru where she was admitted as

inpatient. During her admission in Victoria hospital, surgery

was conducted to her left leg, foot, hand and rod, plate and

screws were inserted, due to which, she had to spent a sum

of Rs.2,00,000/- towards medical treatment. It is pleaded

that the claimant was aged 65 years as on the date of

accident and she was involved in selling eggs, rearing

buffaloes and selling milk to the hotel and from all the

sources she was earning a sum of Rs.15,000/- per month.

The accident was solely caused due to the rash and

negligent driving by the driver of ambulance, due to which,

the claimant suffered grievous injuries and consequently,

she has filed a claim petition before the tribunal seeking

compensation.

5. On service of notice, though respondents denied

the claim made by the claimant, admitted the policy of

ambulance and pleaded that same would be subject to

terms and conditions of the policy.

6. On the basis of these pleadings, the tribunal has

framed the relevant issues. In order to substantiate those

issues and to prove the case, the claimant examined herself

as PW.1 and examined two independent witnesses as PWs.2

and 3 and got marked documents at Exs.P1 to P15. The

claimant also examined the Doctor as CW.1 through the

Court Commissioner and got marked Ex.C1 through the

Doctor in support of her case.

7. On the basis of the material evidence, both oral

and documentary and on hearing the submissions of

learned counsel for the parties, the tribunal awarded

compensation of Rs.2,37,000/- with 6% interest from the

date of the petition to claimant. Respondent Nos.1 and 2

were jointly and severally liable. However, respondent

No.2 being insurer was saddled to pay the compensation to

claimant.

8. Being dissatisfied with the quantum of

compensation, the present appeal is preferred by the

claimant seeking enhancement of compensation.

9. It is the contention of learned counsel for claimant

that the judgment and award passed by the tribunal is

erroneous as the tribunal has erred in not assessing the

income of claimant which is on the lower side and same

requires to be enhanced. It is further contended that the

tribunal has erred in not awarding just and reasonable

compensation as contemplated under the Motor Vehicles

Act. Hence, he seeks to allow the appeal by enhancing the

compensation.

10. Per contra, Sri D.C.Parameshwaraiah, learned

High Court Government Pleader for respondent No.2

vehemently contends that the judgment and award passed

by the tribunal is in accordance with law and the

computation of the income is taken on the basis of the

material evidence produced by the claimant and also on

consideration of the said fact that there is no cogent

material evidence with regard to the proof of income having

been produced by the claimant, the assessment of the

tribunal with regard to income of the claimant is correct and

same does not warrant any interference by this Court. He

also contends that the tribunal has rightly awarded just and

reasonable compensation on all other heads and same does

not call for interference by this Court.

11. Having heard learned counsel for claimant and

learned High Court Government Pleader for respondent

No.2 and on perusal of the material records produced by

the claimant, I am of the opinion that the claimant is

entitled to a marginal indulgence for enhancement of

compensation for the following reasons:

(a) It is not in dispute that on 14.08.2016, when

claimant was going to her house at 11.15 p.m. at sugar

factory circle, ambulance bearing registration No.KA-11/G-

534 driven by its driver in rash and negligent manner

dashed against the claimant leading to the grievance

injuries being suffered by the claimant and also the

claimant has suffered disability.

(b) In order to substantiate the same, the claimant

has got marked Exs.P1 to P5 which are Police records.

These police records apparently prove the fact that a

criminal case has been registered against the driver of

ambulance for his rash and negligent driving for the

offences punishable under Sections 279 and 338 of IPC.

These documents have not been challenged by the

respondents or the driver of ambulance. When there is no

challenge to the Police records which is conduced after an

investigation and enquiry, the same will have to be

accepted on its face value and accordingly, rash and

negligent driving by the driver of the ambulance is proved

by claimant by production of these documents which are

not disputed or controverted by way of any cogent

evidence.

income of the claimant, though it is stated that claimant

was earning Rs.15,000/- per month, no cogent material has

been produced by claimant to substantiate the same.

Hence, in view of there being no material evidence

regarding proof of income, the tribunal has assessed the

income at Rs.7,500/- per month as notional income.

However, it is not disputed that the accident occurred in the

year 2016 and accordingly, in the absence of any material

evidence with regard to proof of income, the tribunal ought

to have adopted the notional income chart prescribed by

the Legal Services Authority in which for the accident year

2016, the notional income is prescribed at Rs.9,500/- per

month. Hence, the notional income assessed by the tribunal

is on the lower side. Accordingly, the same requires to be

assessed at Rs.9,500/- per month.

(d) The claimant has got examined the Doctor as

CW.1 who has assessed the partial disability to the extent

of 17% to the whole body, who after examination of the

claimant has assessed the disability to the left lower limb to

an extent of 50% and accordingly, on deduction of 1/3rd of

the same, the Doctor-CW.1 has assessed the disability to

the extent of 17% to the whole body. On the basis of the

said expert opinion, the tribunal has also arrived at a partial

disability to an extent of 17% to the whole body. It is also

not in dispute that the claimant is aged 65 years.

Admittedly, as per the judgment of the Hon'ble Apex Court

in the case of Sarla Verma (Smt) and others vs. Delhi

Transport Corporation and another reported in

(2009) 6 Supreme Court Cases 121 for the age

between 61 and 65 years, the appropriate multiplier to be

calculated is '7'. However, the tribunal has adopted the

multiplier of '5', which according to me is not correct and

same requires to be increased to '7' multiplier. Therefore,

loss of future income to the claimant works out to

Rs.1,35,660/- (Rs.9,500/- x 12 x 7 x 17%) as against

Rs.76,500/- adopted by the tribunal.

(e) The tribunal has awarded Rs.70,000/- under the

head of pain, shock and suffering along with discomfort and

inconvenience. I do not find any legal infraction or error in

the same and the same is not interfered. On the basis of

medical bills produced by the claimant at Exs.P12 to P15,

the tribunal has awarded Rs.10,560/- towards medical

expenses, which does not warrant interference, towards

food, nourishment and attendant charges, the tribunal has

awarded Rs.20,000/- and same also does not call for

interference. Towards loss of earning during laid-up period,

the tribunal has awarded Rs.30,000/-, despite

enhancement of income made by this Court, the same is

not interfered. Towards loss of amenities, the tribunal has

awarded Rs.30,000/- which also does not call for

interference.

11. In view of the above discussion, I pass the

following:

ORDER

i) The appeal is allowed-in-part;

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ii) The judgment and award passed by the

Principal Senior Civil Judge and MACT, Mandya

in MVC.No.1220/2016 dated 05.10.2018 is

modified;

iii) The claimant is entitled for compensation of

Rs.2,96,160/- as against Rs.2,37,000/-

awarded by the tribunal;

iv) The respondent-insurer shall pay the enhanced

compensation within a period of six weeks with

interest @ 6% p.a. from the date of receipt of a

certified copy of this order;