Karnataka High Court

Smt. Kalpana R vs Sagar M on 22 March, 2022

Bench: Pradeep Singh Yerur

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 22ND DAY OF MARCH, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

 MISCELLANEOUS FIRST APPEAL NO.8846 OF 2019 (MV)

BETWEEN:
SMT.KALPANA R.
W/O.LATE C.S.GUPTHA
AGED ABOUT 50 YEARS
R/AT NO.976, 2ND STAGE
9TH BLOCK, NAGARABHAVI
BENGALURU - 560 072                     .. APPELLANT

(BY SRI V.JAVAHAR BABU, ADVOCATE)

AND:
1.     SAGAR M.
       S/O.MAHADEVASWAMY
       MAJOR
       R/AT NO.796, 2ND STAGE
       11TH BLOCK, NAGARABHAVI
       BENGALURU - 560 072

2.     THE MANAGER
       ICICI LOMBARD GEN.
       INSURANCE CO.LTD.
       SECOND FLOOR
       S.V.R. COMPLEX
       HOSUR MAIN ROAD
       BENGALURU - 560 068
       REP.BY ITS MANAGER           ... RESPONDENTS

(BY SRI SOMASHEKAR C.ANGADI, ADVOCATE FOR R-1;
    SRI LAKSHMINARASAPPA K.S., ADVOCATE FOR
     SRI A.M.VENKATESH, ADVOCATE FOR R-2)
                         ---
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
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18.09.2019 PASSED IN MVC NO.6241/2018 BY III
ADDITIONAL JUDGE AND MEMBER MACT, COURT OF SMALL
CAUSES MACT, BENGALURU 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 III Additional Judge and

MACT, Bengaluru (for short 'the tribunal') in

MVC.No.6241/2018 dated 18.09.2019. 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 14.05.2018 at about 8.45 a.m., claimant was

riding Honda Activa bearing registration No.KA-01-EM-6241

slowly and cautiously and when she reached near Nammura

Thindi Hotel, service road on Nagarabhavi Ring Road, at

that time, the rider of motor cycle bearing registration

No.KA-41-EJ-9302 came with high speed and in a rash and

negligent manner so as to endanger human life and safety,

dashed against Honda Activa ridden by the claimant. Due

to the impact of said accident, the claimant fell down and

sustained grievous injuries. Immediately, she was shifted to

G.M.Hospital, Bengaluru, where she took treatment as an

inpatient and thereafter, she was shifted to S.K.Hospital,

Bengaluru for better treatment where she took treatment

as inpatient.

5. It is the claim made by claimant hat pursuant to

accident, she has been taking up follow-up treatment as an

outpatient and in view of accident and negligence caused by

the rider of motor cycle, claimant has expended huge

expenditure on medical expenses of herself and she is

encountered with disability and disfigurement of her right

leg there by reducing her capacity of future earning. It is

the further claim that the claimant was aged 49 years and

working as a Government Primary School Teacher at

G.L.P.S. Anjananagar, North-1, Bengaluru and was drawing

a salary of Rs.46,465/- per month. It is also stated that

she has suffered permanent disablement and she is not in a

position to do her daily work as she was doing prior to the

accident, thereby reducing her future earning prospects.

Hence, she filed a claim petition seeking compensation.

6. On service of notice to respondents, they appeared

before the Court and filed their statement of objections.

Respondent No.1 was the rider-cum-owner of the offending

vehicle in question which is insured with respondent No.2

inter alia contending that age, occupation and income of

claimant being denied so also the medical expenses as

claimed by the claimant.

7. Respondent No.2-Insurer filed detailed statement

of objections denying the contention that the accident

occurred due to rash and negligent riding of the rider of

motor cycle and also caused by the rider of Honda Activa

i.e. the claimant herein. The Insurance Company has also

denied the age, occupation and income of the claimant and

sought for dismissal of claim petition and also denied the

issuance of policy of the rider of offending vehicle. Based on

the pleadings, the tribunal framed relevant issues for

consideration.

8. In order to substantiate the issues and to establish

her case, the claimant examined herself as PW.1 and

examined the Doctor as PW.2 and marked the documents

as Exs.P1 to P18 whereas the respondents neither lead any

evidence nor produced any document on their behalf.

9. On the basis of pleadings and material evidence

placed before the Court, both oral and documentary and

after hearing the learned counsel for the parties, the

tribunal awarded compensation of Rs.3,21,100/- with

interest at 8% p.a. from the date of petition till deposit. It

is further ordered that respondent No.2-Insurance

Company to indemnify respondent No.1 and to pay the

compensation to the claimant.

10. Being dissatisfied with the meager compensation

awarded by the tribunal, the claimant is before this Court

seeking enhancement of compensation.

11. It is vehement contention of Sri V.Javahar Babu,

learned counsel for appellant-claimant that the tribunal has

erred in not considering the relevant materials both oral

and documentary in awarding compensation and thereby

committed an error in causing miscarriage of justice to the

claimant. It is further contended that the tribunal has erred

in not awarding suitable compensation under the other

heads, which are very meager and same requires

enhancement under the heads of pain and suffering, loss of

amenities and towards disfigurement. Learned counsel

further contends that the tribunal has erred in not awarding

suitable compensation towards reduced eligibility of

employment and future earning capacity, in view of

disfigurement and disability having been suffered by the

claimant. Learned counsel further contends that the expert

opinion expressed by the Doctor has also not been properly

considered by the tribunal while awarding compensation

under reduced eligibility and future earning capacity.

Hence, he seeks to allow the appeal and to enhance the

compensation.

12. Per contra, Sri Lakshinarasappa K.S., learned

counsel appearing on behalf of Sri A.M.Venkatesh for

respondent No.2-Insurance Company submits that the

tribunal has awarded just and reasonable compensation

based on the material evidence both oral and documentary

and considered the documentary evidence placed before

the Court. He further contends that the tribunal has

awarded reasonable compensation which does not call for

any interference by this Court. Learned counsel further

contends that the tribunal has taken into consideration all

aspects with regard to future earning capacity and more

specifically with regard to claimant having not been

removed from her employment and still continuing in

service with the very same employer whereby there is no

reduced earning capacity and that she has got increment in

her salary and thereby reduction of her earning capacity

has not arisen pursuant to the accident. Therefore, the

question of awarding any compensation towards loss of

future earning capacity would not arise and the tribunal has

rightly considered the same which does not call for

interference. On the basis of these submissions, learned

counsel for Insurer seeks for dismissal of the appeal.

13. Having heard learned counsel for appellant-

claimant and learned counsel for respondent-Insurer, the

points that arise for consideration before this Court are

that-

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

        ii)   Whether      the         enhancement     of
              compensation    is   required   under   the
              present fact of the case?"

14. It is not in dispute that on 14.05.2018 at about

8.45 a.m. while the claimant was riding Honda Activa slowly

and cautiously, the rider of the offending vehicle came with

high speed and in a rash and negligent manner and dashed

against her vehicle leading to the injuries being suffered by

the claimant. To establish these aspects of the negligence

being caused by the rider of the offending vehicle, claimant

has produced Exs.P1 to P6, which are Police records. On

these Police records, a criminal case has been registered

against the rider of motor cycle and chargesheet has been

laid by the Investigating Agency as against rider of Royal

Enfield motor cycle for the offences punishable under

Sections 279, 337 and 338 of IPC.

15. These Police records having been not

challenged either by the rider of motor cycle or by the

respondent-Insurer so also there is no contra material

placed before the Court to prove veracity of these Police

records and laying of chargesheet against the rider of the

offending vehicle so also there is no contra material

evidence elicited that accident has been caused due to the

negligence of claimant and not by the rider of the offending

vehicle, it can be safely concluded that the rider of

offending vehicle was responsible for riding the vehicle in a

rash and negligent manner leading to the accident wherein

the claimant has suffered injuries.

16. Coming to aspect of avocation and income of the

claimant, it is pleaded by the claimant that she was working

as a Government Primary School Teacher at G.L.P.S. North-

1, Bengaluru and drawing salary of Rs.46,465/- per month.

This is proved by way of Exs.P17(A) and P18 which are pay

slips produced by claimant. There is no dispute with regard

to same. The claimant pursuant to the accident was

inpatient for a period of 07 days and she was under

treatment for having sustained following injuries:

1. Haematoma present over left parieto - occipital

region for 3 cms. Diameter.

2. Pain, swelling and restricted movements of right

ankle with multiple abrasions over ankle and foot.

3. Lacerated wound over mid 1/3rd of right leg

measuring 15x5x1.5 cms.

17. The claimant has also examined the Doctor as

PW.2 who was stated that the injury Nos.1 and 2 sustained

by the claimant are simple in nature and injury No.3 is

grievous in nature. In view of claimant being inpatient for a

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period of 07 days and having not joined for work for a

period of 30 days, the tribunal has awarded Rs.59,920/-

under the head of loss of income during laid up period. I do

not find any legal infirmity or infraction and same is not

interfered and left intact.

18. On examination, PW-2-Doctor has stated that the

claimant has undergone disability to an extent of 34% to

right lower limb. It is also observed by the Doctor who has

led evidence by stating that there is some degree of

physical handicap to the claimant in performance of her day

to day work and he has assessed the disability to an extent

of 11% to the whole body. Having considered the same,

the tribunal has awarded compensation of Rs.40,000/-

under the head of reduced eligibility of employment or

damages due to disability. I am in agreement with learned

counsel for respondent-Insurer that despite disability of

11% to the whole body, there is no reduction of earning

capacity by the claimant as she has continued in

employment and in fact securing more income than what

was drawn prior to the accident thereby loss of future

earning capacity cannot be calculated in the present case

on hand as there is no future loss of earning capacity.

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19. However, taking into consideration and keeping

the same in mind, it cannot be lost sight of the opinion of

the Doctor that there is a disability of 34% to the right

lower limb and 11% to the whole body. Though there may

not be actual loss of earning capacity in the present case,

there is certainly be reduced eligibility and working

functional capacity of the claimant in her day to day work

and her professional work, thereby in case of any lay off by

the employer, the claimant would be the first one to be sent

out because of her reduced earning or ability to work due to

physical handicap and disability towards functional working

capacity. Therefore, under these circumstances, I am of the

opinion that the claimant would be required marginal

enhancement of compensation. Accordingly, I award

Rs.70,000/- under the head of reduced eligibility of

employment or damages due to disability as against

Rs.40,000/- awarded by the tribunal.

20. Tribunal has awarded Rs.30,000/- under the

head of pain and suffering. The same requires

enhancement and enhanced to Rs.50,000/- as against

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

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21. Towards loss of amenities, the tribunal has

awarded Rs.20,000/-. In view of disability and injuries

suffered, the claimant being inpatient for seven (07) days

and having not attended the work for 30 days, the claimant

is entitled for additional compensation. Accordingly,

Rs.40,000/- is awarded under this head as against

Rs.20,000/- awarded by the tribunal.

22. Towards attendant charges, nourishment and

conveyance charges, the tribunal has awarded Rs.10,000/-.

I do not find any reason to interfere with the same, which is

left intact.

23. Towards medical expenses Rs.1,51,180/- is

awarded on the basis of medical bills produced by the

claimant at Ex.P13 which also does not call for interference.

24. Towards disfigurement, the tribunal has awarded

Rs.10,000/-. This aspect of the matter requires

consideration for the simple reason that according to

Dcotor-PW.2 who was treated the claimant has clearly

opined that the claimant would have to undergo plastic

surgery to her right foot which would incur a cost of

Rs.1,00,000/-. It is also stated that the claimant has

suffered serious injury to her right foot as such despite

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healing of said injury, there would be an ugly scar mark on

the right foot of the claimant. Hence, it is clearly stated by

the Doctor that there is disfigurement of right foot of the

claimant which would incur certain expenditure and if

plastic surgery is done which would lead to an extent of

Rs.2,00,000/-. However, no material is placed before the

Court to that effect. However, the tribunal has awarded

Rs.10,000/- under this head. I find this is on the lower side

as apparently it is evident by Ex.P11 that there is

disfigurement of right foot, which would require major

plastic surgery to set it right to the same position as it was

prior to the accident or the claimant will have to live with

ugly scar mark thereby diminishing her beauty of right foot

or ugly scar mark in the right foot. Hence, reasonable

compensation requires to be awarded under this head.

Hence, I deem it appropriate to award a sum of

Rs.50,000/- under this head as against Rs.10,000/-

awarded by the tribunal. In view of discussions made

above, the claimant would be entitled for enhancement of

compensation as mentioned in the table below:

         Head              As awarded by the     As awarded by
                                tribunal           this Court
                                  (Rs.)               (Rs.)
Reduced eligibility
of   employment
                                  - 14 -



due to disability or              40,000-00           70,000-00
damages due to
disability
Towards pain and                  30,000-00           50,000-00
suffering
Towards loss of                   20,000-00           40,000-00
amenities
Towards
attendant,
nourishment and                   10,000-00           10,000-00
conveyance
charges
Towards medical                  1,51,180-00        1,51,180-00
expenses
Towards loss of
income during laid                59,920-00           59,920-00
up period and rest
period
Towards
disfigurement                      10,000-00          50,000-00
      TOTAL                     3,21,100-00        4,31,100-00

For the aforesaid reasons, I pass the following:

ORDER

i) The appeal is allowed-in-part;

ii) Judgment and award passed by III Additional

Judge and MACT, Bengaluru in MVC.No.6241/2018

dated 18.09.2019 is modified.

iii) The claimant is entitled for total compensation of

Rs.4,31,100/- as against Rs.3,21,100/- awarded

by the tribunal.

iv) All other terms and conditions stipulated by the

tribunal shall stand intact;

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