Karnataka High Court
Shantha vs Deepak U on 25 May, 2022
Bench: B.Veerappa, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MAY, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL No.813/2019 (MV/I)
BETWEEN:
SHANTHA,
AGED ABOUT 37 YEARS,
W/O SADANANDA,
REP. BY GUARDIAN DAUGHTER DEEPIKA,
AGED ABOUT 21 YEARS,
D/O SADANANDA,
BOTH ARE R/O LAXMINAGAR,
7TH CROSS,
THENKANIDIYOOR VILLAGE,
UDUPI TALUK AND DISTRICT.
...APPELLANT
(BY MS. NAZEEFA M MULTA , ADVOCATE FOR
SRI. PAVANA CHANDRA SHETTY H., ADVOCATE)
AND:
1. DEEPAK U.,
AGED ABOUT 29 YEARS,
S/O BOGGU POOJARY,
R/AT UGGELEBETTU,
2
UPPOORU,
KOLALAGIRI POST,
UDUPI TALUK AND DISTRICT
2. THE UNITED INIDA INSURANCE CO.LTD.,
DIVISIONAL MANAGER,
DIVISIONAL OFFICE,
JEWEL PLAZA, 1ST FLOOR,
MARUTHI VEETHIKA,
UDUPI.
...RESPONDENTS
(BY SRI. M.U. POONACHA, ADVOCATE FOR R2 VIDE
ORDER DATED 05.03.2021. NOTICE TO R1 IS DISPENSED
WITH)
****
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 01.08.2018, PASSED IN
MVC NO.1/2017, ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION, THIS DAY, K.S.HEMALEKHA J.,
DELIVERED THE FOLLOWING:
3
JUDGMENT
Though this appeal is listed for admission, with
the consent of learned counsel on both sides, it is
taken up for final disposal.
2. The injured/claimant is the mother,
represented by guardian daughter Deepika has
preferred the present appeal assailing the judgment
and award dated 01/08/2018, passed in
MVC.No.01/2017, on the file of the Additional Motor
Accident Claims Tribunal & Prl. Senior Civil Judge,
Udupi, (hereinafter referred to as "the Tribunal" for
the sake of convenience) seeking enhancement of
compensation.
3. The parties herein are referred to as per
their ranking before the Tribunal for the sake of
convenience.
4. The injured/claimant, represented by
guardian daughter Deepika filed the claim petition
under Section 166 of the Motor Vehicles Act, 1988
("the Act" for short), seeking compensation of
Rs.27,60,750/- on account of severe injuries suffered
in a road traffic accident that occurred on 18/07/2016
at about 2.15 p.m., when the injured/claimant was
proceeding in a motorcycle bearing registration
No.KA-20/ED-2093 as a pillion rider from Laxminagar
side towards Puttur and at that time, the rider of the
motorcycle rode the motorcycle in a rash and
negligent manner without noticing the hump near
Bisleri Gatak and without reducing the speed, applied
break, due to which the accident occurred and the
injured/claimant sustained grievous injuries and was
hospitalized.
5. It is contended that due to the accident,
the injured is unable to discharge her day-today
activities and there has been a permanent disability
occurred to the injured/claimant. It is further
contended that the injured/claimant was earning
Rs.375/- per day by doing coolie work and as such,
sought for compensation.
6. In pursuance of the summons issued by the
Tribunal, respondent No.2/insurance company
appeared and filed its written statement denying that
the accident occurred due to the negligence of the
motorcyclist. It is contended hat the accident occurred
due to the negligence on the part of the injured and
not on the part of the rider of the vehicle and hence
sought for dismissal of the claim petition.
7. On the basis of the pleadings, the Tribunal
framed following issues:
1. Whether the petitioners proves that, on
18/07/2016, at about 02.15 p.m., while the
petitioner was proceeding in a motorbike
bearing registration No.KA-20-ED-2093 as
pillion rider from Laxminagar side towards
Puttur, and when they reached near Bisleri
Unit, Laxminagar, Thenkanidiyoor Village,
Udupi, the rider of the said Motorbike
suddenly applied the break, in the result
petitioner slipped from the motorbike and
sustained severe injury?
2. Whether the petitioner is entitled for
compensation? If so, what is the quantum?
From whom payable?
3. What award or order?
8. In order to substantiate claimant's
contention, the claimant has examined two doctors
who treated her as PWs.1 and 2 and examined the
daughter of injured/claimant as PW.3 and got marked
13 documents at Exs.P-1 to P-13. On the other hand,
respondent No.2/insurance company did not let-in any
evidence. However, got marked Ex.R-1/insurance
policy.
9. The Tribunal, on the basis of the pleadings,
evidence and material on record, held that the
accident occurred due to rash and negligent riding of
the rider of the motorcycle bearing registration No.KA-
20/ED-2093 and due to the accident, the claimant had
suffered grievous injuries and fastened the liability on
respondent No.2/insurance company and awarded a
total compensation of Rs.6,85,065/- with interest at
the rate of 6% per annum from the date of petition till
realization under the following heads:
Sl. Head of Compensation Amount/Rs.
No.
1 Pain and suffering 75,000.00
2 Loss of future income 4,80,000.00
3 Loss of income during laid up 30,000.00
period
4 Medical expenses 10,065.00
5 Conveyance, food, nourishment, 40,000.00
attendant charges
6 Loss of amenities in life 50,000.00
TOTAL 6,85,065.00
10. Being unsatisfied with the quantum of
compensation awarded by the Tribunal, the
injured/claimant has preferred the present appeal.
11. Heard learned counsel, Ms.Nazeefa
M.Mulla, appearing for Sri Pavana Chandra Shetty H.,
appearing for the appellant and learned counsel, Sri
M.U.Poonacha, learned counsel appearing for
respondent No.2 through video conference and
perused the material on record including original
records.
12. Learned counsel for the claimants would
contend that the Tribunal has not assessed the income
of the injured/claimant as per the guidelines of the
Karnataka State Legal Services Authority, and thus
the award of compensation under the head loss of
future income is on the lower side. It is further
contended that the award of compensation under pain
and suffering, loss of amenities in life and other heads
is on the lower side having regard to the injuries
suffered by the injured/claimant and hence,
contended that the award of compensation needs to
be re-assessed.
13. Per contra, learned counsel for respondent
No.2/insurance company would contend that the
compensation awarded by the Tribunal is just and
proper and does not call for any interference at the
hands of this Court and thus sought for dismissal of
the appeal.
14. Having heard the learned counsel for the
parties and on perusal of the material on record, the
only point that arises for consideration is:
"Whether the claimant/injured is entitled
for enhanced compensation under the
facts and circumstances of the case?"
15. The date, time and occurrence of accident
are not in dispute. The only dispute is with regard to
the quantum of compensation awarded by the
Tribunal. The Tribunal has taken the income of the
injured/claimant at Rs.5,000/- per month. As per the
guidelines of the Karnataka State Legal Services
Authority, Bengaluru, when no document is produced
to show the actual income of the claimant, notional
income to be taken for the accident that occurred in
the year 2016 is Rs.9,500/-. Hence, the notional
income of Rs.9,500/- is taken, as against the income
of Rs.5,000/- taken by the Tribunal. PWs.1 and 2, the
doctors who treated the claimant has deposed that
there is 50% permanent disability. Perusal of Ex.P-1
would clearly indicate that the claimant had suffered
grievous injuries as follows:
"Reddish contused abrasion of 3cm. x 2cm. on
the left side of forehead with CT scan showing:
(a) Fracture of occipital bone
(b) Left frontal subdural hematoma
(c) Left frontal contusion
(d) Subarachnoid hemorrhage
(e) Diffuse cerebral edema
As such, the disability taken by the Tribunal to
the extent of 50% is just and proper. Considering the
age of the claimant to be 34 years, the multiplier
applicable is 16. The Tribunal has rightly taken the
disability and the multiplier. Thus, considering the
notional income of the claimant at Rs.9,500/-, taking
the multiplier 16 and the permanent disability at 50%,
the loss of future income that would be arrived at is
Rs.9,12,000/- (9,500 x 12 x 16 x 50%).
15. Considering the age of the claimant and the
injuries suffered by the claimant being grievous in
nature, we are of the considered view that the
compensation awarded by the Tribunal needs to be re-
assessed in the following manner:
Sl. Head of Compensation Amount/Rs.
No.
1 Pain and suffering 1,00,000.00
2 Loss of future income 9,12,000.00
3 Loss of income during laid up 28,500.00
period (Awarded by the Tribunal)
4 Medical expenses 10,065.00
(Awarded by the Tribunal
5 Conveyance, food, nourishment, 60,000.00
attendant charges
6 Loss of amenities in life 75,000.00
TOTAL 11,85,565.00
16. The claimant is entitled for compensation of
Rs.11,85,565/- as against Rs.6,85,065/- awarded by
the Tribunal. Deducting Rs.6,85,065/- out of
Rs.11,85,565/-, the claimant is entitled for enhanced
compensation of Rs.5,00,500/- with interest at the
rate of 6% per annum from the date of claim petition
till the date of realization. Thus, we answer the point
formulated by this Court is answered in the
affirmative. In the result, we pass the following:
ORDER
(i) The appeal is allowed in part.
(ii) The claimant is entitled for enhanced
compensation of Rs.5,00,500/- with
interest at the rate of 6% per annum from
the date of claim petition till the date of
realization.
(iii) Respondent No.2/insurance company is
directed to deposit the enhanced
compensation amount of Rs.5,00,500/-
within a period of four weeks from the date
of receipt of a copy of this order with
proportionate interest.
(iv) The Disbursement of the enhanced
compensation is in terms of the MACT.
(v) The trial Court record be transmitted to the
concerned Court forthwith.
No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
S*
