Karnataka High Court

Smt Meenakshi vs Sendilkumar on 26 May, 2022

Bench: Hanchate Sanjeevkumar

                           1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 26TH DAY OF MAY, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

             M.F.A.NO.6958/2016 (MV-I)


BETWEEN:

SMT. MEENAKSHI,
W/O M.YATHISH,
AGED ABOUT 41 YEARS,
R/AT MARGADA CAMP,
LINGADAHALLI ROAD,
BIRUR TOWN, KADUR TALUK,
CHIKKAMAGALUR DISTRICT.
                                         ... APPELLANT

(BY SRI SRIKANTH PATIL K., ADVOCATE)


AND:

1.     SENDILKUMAR,
       S/O JAYARAM,
       AGED ABOUT 33 YEARS,
       R/A A.D. STREET, ATTIPALAYAM,
       SHIRUMULISI POST,
       TIRUCHANGODU TALUK,
       NYAMAKAL DISTRICT,
       TAMIL NADU STATE-600 001.

2.     H.M. NAVEEN,
       AGED ABOUT 39 YEARS,
       S/O H.S. MALLIKARJUNAPPA,
                             2



      R/AT HOGAREHALLI VILLAGE & POST,
      DODDABALLAPUR TALUK,
      BIRUR HOBLI, KADUR TALUK,
      CHIKKAMAGALUR DISTRICT-577 101.

3.    NATIONAL INSURANCE COMPANY LTD.,
      CHIKKAMAGALURU,
      CHIKKAMAGALURU DISTRICT-577 101.
      REP. BY ITS MANAGER
                                   ... RESPONDENTS

(BY SRI K.N.SRINIVAS, ADVOCATE FOR R3
    V/O DTD:02/03/2022 NOTICE TO R1 & R2 IS
    DISPENSED WITH)


      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT   AGAINST   THE   JUDGMENT      AND     AWARD       DATED
15.04.2016 PASSED IN MVC NO.78/2012 ON THE FILE OF
THE SENIOR CIVIL JUDGE, MACT, KADUR, CHIKMAGALUR
DISTRICT, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION     AND     SEEKING         ENHANCEMENT       OF
COMPENSATION AND ETC.,


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


                     JUDGMENT

      The   present     appeal      is     filed   by     the

appellant/claimant    challenging   the     judgment      and

award dated 15.04.2016 in MVC.No.78/2012 passed

by the Senior Civil Judge and MACT at Kadur,

Chikmagalur District.

2. Brief facts of the case are as under:

On 20.02.2012 the claimant was returning to her

house on the left side of Lingadahalli road after selling

the milk to the houses. While coming so, near the

land of Krishnamurthy on Lingadahalli road,

respondent No.1 by riding a motor cycle bearing

Reg.No.KA-18/Q-1226 in a rash and negligent manner

with excessive speed dashed to the claimant from

back side. Due to the said accident, the claimant fell

down and sustained grievous injuries. Immediately,

she was shifted to P.K.S. Hospital, Birur and after first

aid treatment, she was shifted to Nanjappa Hospital,

Shivamogga, in a hired vehicle and admitted therein

for a day. Thereafter, she was shifted to Kasthuraba

Hospital, Manipal, in a hired vehicle and admitted

therein as in patient from 21.02.2012 to 13.02.2012.

3. The claim petition was filed by the

appellant/claimant before the Tribunal seeking

compensation. The Tribunal has partly allowed the

claim petition and awarded compensation of

Rs.3,43,976/- with interest at 8% p.a., from the date

of petition till the date of deposit. Being aggrieved by

the same, the present appeal is filed before this Court.

4. Learned counsel for the appellant/claimant

submitted that the amount awarded under each head

is inadequate. Therefore, prays for enhancement of

compensation. Further, submitted that the

appellant/claimant was doing milk vending business

and she has suffered six grievous injuries. Therefore,

it certainly affects her earning capacity in future, but

that has not been considered by the Tribunal.

Therefore, prays for awarding compensation under the

head "loss of earning capacity due to disability".

5. On the other hand, learned counsel for

respondent No.3-Insurance Company submitted that

the Tribunal has awarded the compensation correctly,

which is justified one and there is no need to make

any interference in the quantum of compensation as

the Tribunal has awarded adequate and appropriate

compensation under each heads. Therefore, prays for

dismissal of the appeal.

6. The Tribunal has awarded the

compensation under various heads as follows:

Pain and sufferings                         Rs. 50,000/-
Medical Expenses                            Rs.2,23,979/-
Traveling/Conveyance                        Rs. 20,000/-
Attendant's Charges/ Nutritious Food        Rs. 15,000/-
Future Medical Expenses                     Rs. 25,000/-
Discomfort and loss of amenities of life     Rs. 10,000/-
                 Total                     Rs.3,43,979/-

7. Ex.P.8 is the wound certificate issued by

the Government Hospital, Birur, which shows that the

appellant had sustained following grievous injuries in

the accident:

i. Fracture of right thigh

ii. Right femur shaft segmented (fracture)

8. Further Dr. Monapa Naika A., who was

examined as C.W.1 has deposed that on examination

of the claimant in the hospital he has noticed the

following injuries and disabilities.

1. Comminuted fracture of right scapula.

2. Fracture of sacrum.

3. Segmental fracture of right femur.

4. Left superior and inferior pubic rami fracture.

5. Blunt injury abdomen.

6. Transverse process fractures of L2, 3, 4 and 5 vertebrae.

9. The above said injuries are grievous in

nature. The appellant was doing milk vending business

from 10 cows and buffalos. Even though, the

appellant/claimant might have been assisted by her

husband and other family members, certainly from the

above said injuries, the appellant had lost earning

capacity. The Doctor-C.W.1 had stated that the

appellant/claimant is having 14% of disability towards

right lower limb, 11% disability towards left lower limb

and 6% of disability towards right upper limb.

Therefore, the above injuries definitely affect the

earning capacity of the appellant/claimant from doing

milk vending business. Further the said disabilities are

permanent in nature. But, the Tribunal has wrongly

opined that 1/3rd of the limb disability are only to be

taken into consideration as a whole body disability.

This observation of the Tribunal is not correct. The

appellant had sustained disability towards both right

and left limb and also towards right upper limb.

Therefore, considering the nature of injuries sustained

and the percentage of disability assessed by the

doctor, it would be 30% of permanent physical

disability and for considering towards the whole body,

if 1/3rd of disability is taken, then it would be 10% of

functional disability towards the whole body as per the

principles of law laid down by the Hon'ble Apex Court

in the case of Raj Kumar Vs. Ajay Kumar and

Another reported in (2011) 1 SCC 343. But, the

Tribunal has not awarded any compensation under the

head "loss of future earning capacity", which is not

correct. Therefore, the appellant is entitled for

compensation under the head "loss of future earning

capacity".

10. It is submitted that the appellant/claimant

was doing milk vending business, but has not

produced any evidence to show that she was earning

Rs.10,000/- per month by doing milk vending

business. Therefore, in the absence of documentary

evidence regarding the income, notional income ought

to be taken. The accident has occurred in the year

2012. Therefore, as per the notional income

recognized by the Karnataka State Legal Service

Authority for the year 2012, the income of Rs.7,000/-

per month is taken into consideration.

11. The appellant/claimant was aged 37 years

as on the date of the accident. Therefore, the

appropriate multiplier is "15" as per the principles of

law laid down in the case of Sarla Verma and

Others -Vs- Delhi Transport Corporation and

Another reported in AIR 2009 SCC 3104.

Therefore, the appellant/claimant is entitled for

compensation under the head "loss of future earning

capacity", which is calculated and quantified as under:

(Rs.7,000/- x 10/100 x 15 x 12) = Rs.1,26,000/-.

12. Further, the Tribunal has awarded

compensation of Rs.50,000/- towards "pain and

sufferings", which is inadequate. Considering the

nature of injuries sustained by the appellant as

discussed above, the appellant is entitled for atleast

Rs.1,00,000/- towards "pain and sufferings".

Accordingly, Rs.1,00,000/- is awarded under the

head "pain and suffering".

13. Further, the Tribunal has awarded

compensation of Rs.20,000/- under the head

"traveling and conveyance", which is inadequate for

the reason that the appellant has taken treatment as

in patient from 21.02.2012 to 13.02.2012 at

Kasthuraba Hospital, Manipal, and also as out patient

from February to September, 2012. Therefore,

compensation of Rs.20,000/- awarded by the Tribunal

is inadequate and the same needs to be enhanced.

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

"traveling and conveyance".

14. Further considering the nature of injuries

sustained and the disability suffered by the appellant

as above stated, the appellant had suffered discomfort

and loss of enjoyment of life and she is constrained to

do day to day normal work. Hence, the compensation

of Rs.10,000/- awarded by the Tribunal is inadequate

and the same needs to be enhanced. Accordingly,

Rs.50,000/- is awarded under the head "discomfort

and loss of amenities of life".

15. Further the Tribunal has not awarded any

compensation towards "loss of income during laid up

period and treatment period". The appellant was doing

milk vending business and considering the nature of

injuries sustained by the appellant atleast for a period

of 5 months as she was not able to do any work, the

appellant is entitled for compensation under the head

loss of income during laid up period and treatment

period for a period of 5 months. Considering the

notional income at Rs.7,000/- per month, the

appellant is entitled to Rs.35,000/- (Rs.7,000/- x 5

months) under the head "loss of income during laid up

period and treatment period". The compensation

awarded on other heads by the Tribunal is correct,

which needs no interference and they are kept in tact.

16. Therefore, the appellant/claimant is

entitled to the compensation as follows:

Pain and sufferings                            Rs. 1,00,000/-
Medical Expenses                                Rs.2,23,976/-
Traveling/Conveyance                             Rs. 50,000/-
Attendant's Charges/ Nutritious Food             Rs. 15,000/-
Future Medical Expenses                         Rs. 25,000/-
Discomfort and loss of amenities of life        Rs. 50,000/-
Loss of income during laid up period            Rs. 35,000/-
and treatment period
Loss of future earning capacity                 Rs.1,26,000/-
                  Total                        Rs.6,24,976/-



      17.   The        Tribunal         has    awarded        the

compensation           of      Rs.3,43,976/-,       but       the

appellant/claimant is entitled to total compensation of

Rs.6,24,976/-. Hence, the appellant/claimant is

entitled to enhanced compensation of Rs.2,81,000/-

(Rs.6,24,976/- - Rs.3,43,976/-). Therefore, the

appellant/claimant is entitled to enhanced

compensation of Rs.2,81,000/- along with interest at

the rate of 6% per annum from the date of petition till

the date of realization.

18. Accordingly, I pass the following :

ORDER

Appeal is allowed-in-part.

The appellant is entitled to enhanced