Smt Rudrambi @ Rudramma vs The New India Assurance Co.Ltd
2022 Latest Caselaw 7568 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 27TH 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.1153/2021 (MV-I)



BETWEEN:

SMT. RUDRAMBI @ RUDRAMMA,
W/O THIPPESWAMY,
D/O REVANASIDDAPPA,
AGED ABOUT 48 YEARS,
R/AT BIDAREKERE VILLAGE,
DAVANGERE TALUK,
DAVANGERE DISTRICT - 577 001.
NOW R/AT SINGAPURA VILLAGE,
CHITRADURGA - 577 501.
CHITRADURGA DISTRICT.
                                         ...APPELLANT

(BY SRI V.B. SIDDARAMAIAH, ADVOCATE)

AND:


1.     THE NEW INDIA ASSURANCE CO.LTED.,
       BRANCH OFFICE,
       OPP. MAGANUR COMMERCIAL COMPLEX,
                             2



      DAVANGERE ROAD,
      CHITRADURGA - 577 001
      REP. BY ITS BRANCH MANAGER.

2.    SRI UMAPATHI M.R.,
      S/O REVANASIDDIAH,
      AGED ABOUT 41 YEARS,
      R/AT NO.19, EKKANATHA BHAVANA,
      K.G. NAGAR,
      BANGALORE - 560 019.
                                          ...RESPONDENTS

(BY SRI E.I. SANMATHI, ADVOCATE FOR R1 VIDE ORDER
DATED 09.07.2021. NOTICE TO R2 IS DISPENSED WITH)

                           ****

      THIS   MISCELLANEOUS      FIRST   APPEAL   IS   FILED
UNDER SECTION 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 23.11.2020, PASSED IN
MVC NO.647/2019, ON THE FILE OF THE PRINCIPAL
SENIOR   CIVIL   JUDGE,    ADDITIONAL     MACT-III,    CJM,
CHITRDURGA, 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 present appeal by the

injured/claimant, assailing the judgment and award

dated 23/11/2020, passed in MVC.No.647/2019, by

the Principal Senior Civil Judge & Addl. MACT-III,

Chitradurga (hereinafter referred to as "the Tribunal"

for short), 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, filed the claim

petition under Section 166 of the Motor Vehicles Act,

1988 ("the Act" for short), seeking compensation of

Rs.25,00,000/- with interest at 12% p.a., on account

of injuries suffered in a road traffic accident that

occurred on 22/03/2019 at about 8.50 a.m., when the

injured/claimant was proceeding in a motorcycle

bearing registration No.KA-05/HL-5830 as a pillion

rider to go to Bidarekere from Bharamasagara. When

the said motor clycle was near Bidarekere Road Cross,

Bharamasagara Village, Chitradurga Taluk, the rider of

the motorcycle rode the motorcycle in a rash and

negligent manner with a high speed and in order to

avoid the bullock-cart which was coming on the road,

suddenly applied break, due to which the rider as well

as the pillion rider/petitioner fell down and the

injured/claimant sustained grievous injuries all over

the body and was hospitalized for a period of three

months and underwent surgery.

5. It is contended by the injured/claimant that

due to the accident, the injured is unable to discharge

her day-today work and there has been a permanent

disability occurred to the injured/claimant. It is further

contended that the injured/claimant was working as a

teacher and was earning Rs.12,000/- per month and

was also earning Rs.1,00,000/- per annum from

agricultural source. Due to the impact of the accident,

she is bedridden and suffering from permanent

disability. As such, the injured/claimant filed the

claim petition seeking compensation.

6. In pursuance of notice issued by the

Tribunal, respondent No.1, though served, remained

ex parte and respondent No.2 appeared and filed

statement of objections.

7. Respondent No.2 contended that the

motorcycle was not at all involved in the alleged

accident and contended that the injured/claimant,

rider and owner of the motorcycle colluded and filed

this false claim petition. It is also contended that the

rider of the motorcycle had no valid and effective

driving licence on the date of the accident and thus

the insurance company is not liable to pay the

compensation as sought for by the claimant and

hence, sought for dismissal of the claim petition.

8. On the basis of the pleadings, the Tribunal

framed following issues:

ISSUES

(i) Whether the petitioner proves that, she sustained injuries in the road traffic accident occurred on 23/03/2019 at about 8.50 a.m. at Bidarekere Road Cross, Bharamasagara village,

ChitradurgaTaluk, due to rash and negligent riding of motor cycle bearing Reg. No.KA-05/HL-5830 by its rider?

  (ii)        Whether the petitioner is entitled for
              compensation?   If   so,    what   is   the
              quantum and from whom?
  (iii)       What order or award?

8. In order to substantiate her contention, the

claimant examined herself as PW.1 and examined the

orthopaedic surgeon as PW.2 and got marked sixteen

documents at Exs.P-1 to P-16. On the other hand,

respondent No.2/insurance company did not let-in any

evidence. However, got marked Ex.R-1 issued by

respondent No.2/insurance company.

9. The Tribunal, on the basis of the pleadings,

oral and documentary evidence as well as the material

on record, held that the accident occurred due to rash

and negligent riding of the rider of the motorcycle

bearing registration No.KA-05/HL-5830 and due to the

impact of the accident the claimant suffered grievous

injuries. Fastening the liability upon respondent

No.2/insurance company, the Tribunal awarded

compensation of Rs.5,24,196/- with interest at 8%

per annum from the date of petition till realization

under the following heads:

Sl. Head of Compensation Amount/Rs No.

    1       Loss of future earnings              1,99,680.00

    2       Medical expenses                    1,74,516.00

    3       Nourishment and                      10,000.00
            miscellaneous expenses

    4       Pain, injuries and sufferings        40,000.00

    5       Loss      of        amenities,
            enjoyment    of     life  and 1,00,000.00
            discomforts

    6       Future medical expenses                  NIL

                       TOTAL                    5,24,196.00

10. Being unsatisfied with the quantum of

compensation awarded by the Tribunal, the

injured/claimant has preferred the present appeal.

11. Heard learned counsel for the parties.

12. Sri V.B. Siddaramaiah, learned counsel for

the injured/claimant would contend that the Tribunal

has failed to take into consideration the actual income

of the injured/claimant in arriving at the conclusion

regarding loss of future earning as the

injured/claimant has categorically stated in her

evidence that she was earning Rs.12,000/- per month

as teacher and Rs.1,00,000/- per annum from

agricultural source, and thus, the income taken by

the Tribunal at Rs.8,000/- per month is much on the

lower side. Learned counsel for the injured/claimant

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 and needs to be

enhanced. It is further contended that the award of

compensation under the head 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. Thus,

learned counsel for the injured/claimant sought to

allow the appeal.

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. It is contended that, the Tribunal

has taken the income of the injured/claimant at

Rs.8,000/- per month as the claimant/injured has

failed to produce any document to the effect that she

was earning Rs.12,000/- per month as a teacher and

Rs.1,00,000/- per annum from agricultural source.

This being so, the Tribunal is justified in taking the

income of the injured at Rs.8,000/- per month. It is

also contended that on analyzing the oral and

documentary evidence available on record, the

Tribunal has rightly awarded the Compensation which

does not call for any interference 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 our consideration is:

"Whether the appellant has made out a case for enhanced compensation under the facts and circumstances of the case?"

15. The date, time and occurrence of accident

due to rash and negligent riding of the rider of the

motorcycle 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.8,000/- per month as no

documents are forthcoming to show that the claimant

was earning Rs.12,000/- per month working as a

teacher in Sri Bogeshwara Swamy Vidhya Samsthe,

Yelagodu, Chitradurga and Rs.1,00,000/- per annum

from agricultural source. 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 2015 is

Rs.14,000/-. Hence, the notional income of

Rs.14,000/- is taken, as against the income of

Rs.8,000/- taken by the Tribunal.

16. PW.2, the orthopaedic surgeon who treated

the claimant, has deposed that there is permanent

disability to the extent of 47.11% to the right hip as

per the wound certificate produced at Ex.P-6. The

injuries suffered by the claimant as per Ex.P-6 are as

under:

"1. X-ray: Right intertrochanteric femur # with subtrochanteric extension.

2. C.T. Pelvis with both hips with bilateral femur shows comminuted oblique # of the ® intertrochanteric region with comminution of the trochanters with subtrochanteric extension in the proximal shaft displacing the proximal segment posteromedially.

3. Soft tissue swelling around the # site.

4. Rest of the bones & joints are normal.

5. Rest of the soft tissues are normal."

17. On perusal of the wound certificate Ex.P-6

and disability certificate Ex.P-13 issued by the doctor

corroborate the evidence of PW.2 the doctor, who has

assessed the disability to the extent of 16% to the

whole body, which in our is just and proper and the

same does not call for any interference. Considering

the age of the injured/claimant as 48 years, the

multiplier applicable is 13. Thus, the loss of future

earning capacity arrived at is Rs.3,49,440/- (14,000

x12x16x13). The Tribunal has not awarded any

compensation under the head loss of earning during

the laid up period for three months, which comes to

Rs.42,000/- (14,000 x 3).

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 Loss of future earnings 3,49,440.00

2 Loss of income during laid up 42,000.00 period (14,000 x 3)

3 Medical expenses (as awarded by 1,74,516.00 the Tribunal)

4 Nourishment & miscellaneous 20,00.00 expenses

5 Pain, injuries and sufferings 1,00,000.00

6 Loss of amenities, enjoyment of 1,00,000.00 life and comforts (as awarded by the Tribunal)

7 Future medical expenses 10,000.00

TOTAL 7,95,956.00

16. The claimant is entitled for compensation of

Rs. 7,95,956/- as against Rs.5,24,196/- awarded by

the Tribunal. After deducting Rs.5,24,196/- out of

Rs.7,95,956/-, the claimant is entitled for enhanced

compensation of Rs.2,71,760/- 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 favour of the injured/claimant. In the result, we

pass the following:

ORDER

(i) The appeal is allowed in part.

(ii) The judgment and award dated 23/11/2020 is hereby modified awarding compensation of Rs.7,95,956/- as against Rs.5,24,196/-.

(iii) The claimant is entitled for enhanced

compensation of Rs.2,71,760/- with

interest at the rate of 6% per annum from

the date of claim petition till the date of

realization.

(iii) Respondent/insurance company is directed

to deposit the enhanced compensation

amount of Rs.2,71,760/- within a period of

four weeks from the date of receipt of a

copy of this order with proportionate

interest.

(vi) The trial Court record be transmitted to the

concerned Court forthwith.

No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE

S*