Karnataka High Court

Ms Sunitha N vs Sri Ramachandra Rao H V on 28 March, 2022

Bench: Hanchate Sanjeevkumar

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 28TH DAY OF MARCH, 2022

                        BEFORE

 THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

MISCELLANEOUS FIRST APPEAL NO.236/2012(MV)

BETWEEN:

MS. SUNITHA .N
D/O NARAYANA MURTHY @ NARAYAN
AGED ABOUT 22 YEARS
R/AT NO.4/4, 'C' STREET
KOTE(FORT), KALASIPALYA
BENGALURU-560 002
                                          ...APPELLANT

(BY SMT. K. SREEVIDYA, ADVOCATE FOR
    SRI. T.N. VISHWANATHA, ADVOCATE)

AND:

SRI. RAMACHANDRA RAO H.V.
S/O VENKOJI RAO, MAJOR
R/AT NO.18/2, K.P. LANE
JALI MOHALLA, CHICKPET
BENGALURU-560 053
                                        ...RESPONDENT

(BY SRI. M. THIMMARAYA SWAMY, ADVOCATE(ABSENT))

       THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT    AGAINST   THE   JUDGMENT   AND   AWARD    DATED
18.06.2011 PASSED IN MVC.NO.7711/2009 ON THE FILE
OF THE VIII ADDITIONAL JUDGE, MEMBER, MACT, COURT
OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE
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CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.,


      THIS M.F.A. COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                     JUDGMENT

This appeal is filed under Section-173(1) of the

Motor Vehicles Act, by the appellant-claimant challenging

the judgment and award dated 18.06.2011, passed in MVC

No.7711/2009, on the file of Motor Accident Tribunal,

Court of Small Causes, Bangalore (SCCH-5), seeking

enhancement.

Brief facts:

2. On 24.08.2009, at about 8.30 a.m., the

appellant-claimant was proceeding on a TVS Scooty PEP

bearing registration No.KA.01.EH.2249 on 5th Main Road,

Chamarajpet, Bangalore, during that time a Honda Activa

bearing No.KA.02.EU.6400 came from cross road in a

negligent manner and dashed against the appellant-

claimant vehicle, thereby she sustained injuries.

3. Hence, a claim petition was filed by the appellant

under Section-166 of the M.V. Act, claiming compensation

for the injuries sustained in the accident. The Tribunal on

appreciating the materials on record, allowed the petition

in part, and awarded a compensation of Rs.66,000/-, along

with interest at 6% per annum from the date of petition till

the date of deposit.

4. Heard arguments of the learned counsel for the

appellant and perused the materials on record.

5. The learned counsel appearing for the

respondent-owner is absent continuously for successive

days.

6. The learned counsel for the appellant

submitted that the quantum of compensation awarded

under various heads is on lesser side. Therefore, seeks for

enhancement of the compensation. The learned counsel

appearing for the appellant - claimant submitted that the

appellant had suffered fracture of left leg tibia and

lacerated wound, over ankle joint of left foot. But the

Tribunal has awarded meagre compensation under the

various heads. Further, submitted that the appellant is a

woman aged 20 years old, at the time of accident and her

marriage prospective was hampered due to accident.

Without considering all these aspects, the Tribunal has

awarded a meager compensation. Therefore, prays to

enhance the compensation amount.

7. The Tribunal has awarded compensation under

the various heads as follows:

Towards Pain and Agony                       :   Rs.    15,000/-

Towards Medical expenses                     :   Rs.    27,000/-

Towards Loss of income during treatment      :   Rs.     9,000/-
period

Towards    Loss    of    amenities     and   :   Rs.    15,000/-
unhappiness

                                     TOTAL   :   Rs.    66,000/-

8. Exhibit-P6 is the wound certificate which shows

the appellant had suffered the following injuries:

"i. Fracture chip of lower end of left tibia,

ii. Avuled Lacerated wound over medial aspect of ankle joint,

iii. Lacerated wound over medial aspect of left foot and injuries to other parts of body."

9. The above wound certificate proves the fact

that the appellant being a lady had suffered fracture of

tibia of left leg and lacerated wound of ankle joint of left

foot. PW-2 Doctor had deposed in this regard. Exhibit-P7

discharge summary proves that the injuries sustained are

grievous in nature. Further, the petitioner was admitted as

inpatient in hospital for a period of 9 days. Therefore,

considering all these aspects, the compensation awarded

by the Tribunal for 'pain and agony' is inadequate.

Therefore, the same is liable to be enhanced. Accordingly,

a compensation of Rs.40,000/- under head injury, 'Pain

and Suffering' is awarded.

10. The Tribunal has awarded a compensation of

Rs.27,000/- towards 'Medical Expenses and Incidental

expenses'. The appellant has produced medical bills and

receipt worth Rs.21,235.87 towards 'Medical Expenses and

Hospitalization Charges'. On perusal of the evidences on

record, the compensation awarded under 'Medical

Expenses Including Incidental Expenses' at

Rs.27,000/- is correct and does not need interference.

Therefore, the same is kept in tact.

11. The Tribunal has awarded Rs.9,000/- towards

'loss of income during treatment period' by taking into

consideration notional monthly income at Rs.3,000/- for

three months. The same is inadequate, since the accident

has happened in the year 2009. Therefore, the notional

income is to be considered at Rs.5,000/- per month, as per

Chart prepared by Karnataka State Legal Services

Authority. Considering the nature of injuries sustained by

the appellant, the appellant might not have been able to

work as tailor atleast for a period of Five Months.

Therefore, the appellant had sustained 'loss of income

during treatment period' for five months. Accordingly, a

sum of Rs.25,000/- (Rs.5,000 x 5 months) is awarded

towards 'Loss of Income During Treatment Period'.

12. The Tribunal has awarded a sum of

Rs.15,000/- towards 'Loss Of Amenities And Unhappiness'.

The same is not sufficient considering the nature of injuries

suffered by the appellant and also the fact that she is a

woman. Hence, the same needed to be enhanced.

Accordingly, the sum of Rs.50,000/- is awarded under

the head 'Loss Of Amenities And Unhappiness'.

13. The Tribunal has not awarded any

compensation under the head 'Loss Of Earning Capacity

Due To Disability'. The criteria for calculating functional

disability is elaborately discussed by the Hon'ble Supreme

Court in the case of Raj Kumar Vs. Ajay Kumar and

Another, reported in (2011) 1 SCC 343, at para

Nos.12, 13 and 19, which reads as follows:

"12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is

tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.

13. We may now summarise the principles discussed above :

(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).

(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."

"19. The evidence showed that at the time of the accident, the appellant was aged around 25 years and was eking his livelihood as a cheese vendor. He claimed that he was earning a sum of Rs.3000/- per month. The Tribunal held that as there was no

acceptable evidence of income of the appellant, it should be assessed at Rs.900/- per month as the minimum wage was Rs.891 per month. It would be very difficult to expect a roadside vendor to have accounts or other documents regarding income. As the accident occurred in the year 1991, the Tribunal ought to have assumed the income as at least Rs.1500/- per month (at the rate of Rs.50/- per day) or Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income."

14. Therefore, considering the principles laid down

by the Hon'ble Supreme Court stated supra, and the

injuries suffered by the appellant as discussed above, the

Doctor, PW-2 has deposed that the appellant had suffered

11% of physical permanent disability. As stated above, the

appellant had sustained fracture of tibia. It is stated that

the appellant was doing tailoring work, then certainly the

fracture of left leg tibia will affect tailoring work, as it

requires peddle of the tailoring machine to be done with

the help of the legs. Therefore, it affects the earning

capacity. Therefore, the appellant is entitled for

compensation under the 'head of loss of earning capacity

due to disability'. As above stated, the notional income of

the appellant is taken at Rs.5,000/- per month. The

appellant was aged 20 years old as on the date of the

accident. Accordingly, the appropriate multiplier applicable

is '18' as per the judgment of the Hon'ble Supreme Court,

in the case of Smt.Sarla Verma & Others. Vs. Delhi

Transport Corpn And Another reported in AIR 2009 SC

3104. The Doctor had stated the appellant had sustained

permanent disability at 11%. Therefore, the 'loss of

earning capacity due to disability' is recalculated and

quantified is as follows:

Rs.5,000 x 11/100 x 18 x 12 = Rs.1,18,800/-

15. Therefore, the appellant has awarded

compensation under various heads as follows:

Loss of future earning capacity : Rs. 1,18,800/- Pain, Injuries And Suffering : Rs. 50,000/- Medical And Incidental Expenses : Rs. 27,000/- Loss of earnings during laid of : Rs. 25,000/- period (Rs.5,000 x 5 months)

Loss of amenities in future life : Rs. 50,000/-

TOTAL : Rs. 2,70,800/-

16. Therefore, the appellant is awarded a total

compensation of Rs.2,70,800/- as against the

compensation awarded by the Tribunal at Rs.66,000/-.

Hence, the appellant is entitled for an additional

compensation of Rs.2,04,800/- (Rs.2,70,800 -

Rs.66,000), along with interest at 6% per annum, on the

additional compensation awarded, from the date of filing of

the petition till deposit.

20. Accordingly, I pass the following:

ORDER