Karnataka High Court
Smt Rajeshwari vs The Hazrath Ali on 10 November, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.8334/2014 (MV-I)
C/W.
M.F.A.NO.8011/2014 (MV)
IN M.F.A.NO.8334/2014:
BETWEEN:
THE LEGAL MANAGER
SHRIRAM GENERAL INSURANCE CO. LTD.,
MONARCH CHAMBERS, INFANTRY ROAD
BENGALURU-560 001
NOW REPRESENTED BY
ASSISTANT LEGAL MANAGER
SHRIRAM GENERAL INSURANCE CO. LTD.,
3RD FLOOR, S & S CORNER BUILDING
OPP: BOWRING & LADY CURZON
HOSPITAL, SHIVAJI NAGAR
BENGALURU-560 001. ... APPELLANT
(BY SRI A.N.KRISHNASWAMY, ADVOCATE)
AND:
1. SMT. RAJESHWARI
W/O RANGA @ RANGANATH
NOW AGED ABOUT 38 YEARS
#598, 6TH MAIN, 6TH CROSS
ATTUR LAYOUT, ATTUR POST
YELAHANKA HOBLI
BENGALURU-560 064.
2
2. HAZARATH ALI
S/O NAZEER SAB, MAJOR
#139, JAI BHEEM NAGAR
HARIHAR-577 601
DAVANAGERE DISTRICT.
3. MANAGING DIRECTOR
ANDHRA PRADESH STATE ROAD
TRANSPORT CORPORATION
MUNEERABAD, HYDERABAD
ANDHRA PRADESH STATE. ... RESPONDENTS
(BY SRI A.K.BHAT, ADVOCATE FOR R1;
SRI D.VIJAYAKUMAR, ADVOCATE FOR R3;
VIDE ORDER DATED 30.05.2019,
SERVICE OF NOTICE TO R2 IS HELD SUFFICIENT)
THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 01.10.2014
PASSED IN MVC NO.6460/2011 ON THE FILE OF THE XII
ADDITIONAL SMALL CAUSES JUDGE AND MEMBER, MACT,
BENGALURU, AWARDING COMPENSATION OF RS.10,18,790/-
WITH INTEREST @ 6% P.A., FROM THE DATE OF PETITION TILL
ITS REALIZATION.
IN M.F.A.NO.8011/2014:
BETWEEN:
SMT. RAJESHWARI
W/O RANGA @ R. RANGANATH
AGED ABOUT 38 YEARS
No.598, 6TH MAIN, 6TH CROSS
ATTUR LAYOUT, ATTUR POST
YELAHANKA HOBLI
BENGALURU-560 064. ... APPELLANT
(BY SRI A.K.BHAT, ADVOCATE)
3
AND:
1. SRI HAZRATH ALI
S/O NAZEER SAB
No.139, JAI BHEEM NAGAR
HARIHAR, DAVANAGERE DISTRICT.
2. THE LEGAL MANAGER
M/s. SHRIRAM GENERAL INSURANCE COMPANY LTD.,
MONARCH CHAMBER, INFANTRY ROAD
BENGALURU-560 001
3. THE MANAGING DIRECTOR
ANDHRA PRADESH STATE ROAD
TRANSPORT CORPORATION
MUNEERABAD, HYDERABAD
ANDHRA PRADESH STATE. ... RESPONDENTS
(BY SRI A.N.KRISHNASWAMY., ADVOCATE FOR R2;
VIDE ORDER DATED 28.01.2015,
NOTICE TO R1 & R3 IS DISPENSED WITH)
THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 01.10.2014
PASSED IN MVC NO.6460/2011 ON THE FILE OF THE 12TH
ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the Insurance
Company and the learned counsel appearing for the claimant.
2. These two appeals are filed by the Insurance
Company as well as the claimant, respectively, challenging the
judgment and award dated 01.10.2014, passed in
M.V.C.No.6460/2011 on the file of the Motor Accident Claims
Tribunal, Bengaluru (SCCH-8) ('the Tribunal' for short),
questioning the liability and the quantum of compensation.
3. The parties are referred to as per their original
rankings before the Tribunal to avoid confusion and for the
convenience of the Court.
4. The factual matrix of the case of the claimant before
the Tribunal is that on 21.09.2011 at about 4:00 a.m, she was
proceeding as a passenger in a bus bearing registration No.AP-
28-Z-5000 along with her husband, at that time, a Lorry from
the opposite direction came in a rash and negligent manner and
dashed against the bus, as a result, she has sustained the
injuries. Immediately she was taken to the Government Hospital,
Tirupathi. Thereafter, she was admitted in Sprash Hospital,
Bengaluru as an inpatient for a period of 22 days. It is her case
that she has suffered Type III compound supra condylar fracture
of left femur, fracture lateral condylar right femur and fracture
mid shaft of radius and ulna left.
5. The claimant in order to substantiate her case, she
has examined herself as P.W.1 and also examined the Doctor as
P.W.2, who assessed the disability at 63% in respect of the limb.
The Tribunal has taken 21% of the disability while assessing the
compensation and awarded compensation of Rs.10,18,790/-.
Hence, the present appeal in MFA No.8011/2014 is filed by the
claimant contending that the disability and the income of
Rs.5,000/- taken, which were on lesser side. On the other hand,
the Tribunal ought to have taken the notional income for the
relevant year. Hence, it requires an interference of this Court.
6. Per contra, the learned counsel appearing for the
Insurance Company would submit that the Tribunal ought to
have taken the contributory negligence and the same has not
been taken when the two vehicles are involved in the accident.
The material discloses that the accident was taken place in the
middle of the road and the quantum of compensation awarded is
also on higher side. Hence, it requires an interference of this
Court.
7. The learned counsel appearing for the APSRTC.,
would submit that the Tribunal has taken note of the filing of
charge-sheet against the driver of the Lorry and the driver of the
bus also has been examined and rightly considered the
negligence is on account of the driver of the Lorry. Hence, it
does not require any interference.
8. Having heard the respective counsel and on perusal
of the material available on record, it is not in dispute that the
two vehicles are involved in the accident. It is also not in
dispute that the Police have investigated the matter and filed the
charge-sheet against the driver of the Lorry. The driver of the
Lorry has not been examined by the Insurance Company. The
driver of the KSRTC., bus has been examined. The very
contention of the learned counsel appearing for the appellant-
Insurance Company in MFA No.8334/2014 that the Tribunal
ought to have taken the contributory negligence cannot be
accepted in the absence of any cogent evidence before the
Court. The driver of the Lorry has not been examined and he is
the right person to speak with regard to the contributory
negligence and not controverted the evidence of P.W.1 and
documentary evidence.
9. Now coming to the aspect of quantum of
compensation, the main contention of the Insurance Company in
MFA No.8334/2014 is that the compensation awarded is on
higher side and higher disability was taken. On the other hand,
the learned counsel appearing for the claimant would
vehemently contend that she was a Tailor by profession and the
nature of injuries leads to disability and the future prospects has
not been considered while granting compensation. Apart from
that, the compensation awarded is also meager. Admittedly,
this accident was occurred in the year 2011 and the notional
income would be Rs.6,500/-. But the claimant herself has
claimed the income as Rs.6,000/-. Hence, the admitted income
of Rs.6,000/- has to be taken while considering the loss of
income.
10. Having considered the nature of injuries, which have
been mentioned in the Wound Certificate, I do not find any error
committed by the Tribunal in awarding an amount of
Rs.60,000/- on the head of pain and suffering.
11. She was an inpatient for a period of 22 days. The
Tribunal awarded an amount of Rs.20,000/- on the head of loss
of income during laid up period for a period of four months by
taking the income of Rs.5,000/- per month. Having taken the
income of Rs.6,000/- since the accident was of the year 2011,
for a period of four months, it comes to Rs.24,000/- as against
Rs.20,000/- awarded by the Tribunal.
12. The Tribunal awarded an amount of Rs.6,77,190/-
towards medical expenses based on the documentary evidence.
Hence, it does not require any interference.
13. However, the Tribunal has taken the income of
Rs.5,000/- and calculated the loss of future earning, it should be
taken as Rs.6,000/- per month. The disability of 21% as
assessed by the Tribunal is just and reasonable. However, the
learned counsel appearing for the claimant would submit that the
future prospect has not been considered. In view of the
judgment of the Division Bench of this Court in MFA
No.103807/2016 and connected matters disposed of on
27.05.2022, wherein, in a case of disability of 20%, future
prospects has to be added. In this case also, the disability
assessed as 21%. Hence, future prospects income has to be
added. Having taken her age i.e., 35 years at the time of the
accident, 40% has to be added, then, the future prospects
income comes to Rs.3,38,688/- (6000 + 40% = 8400 x 12 x
16 x 21/100).
14. The Tribunal awarded an amount of Rs.40,000/-
towards loss of amenities, conveyance, food and nourishment,
attendant charges, the same is just and reasonable and it does
not require any interference.
15. The Tribunal awarded an amount of Rs.20,000/-
towards future medical expenses, the same is just and
reasonable and it does not require any interference.
16. In all, the claimant/appellant is entitled for a sum of
Rs.11,59,878/- as against Rs.10,18,790/- awarded by the
Tribunal.
17. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal filed by the claimant in MFA
No.8011/2014 is allowed-in-part.
(ii) The impugned judgment and award of the
Tribunal dated 01.10.2014, passed in
M.V.C.No.6460/2011, is hereby modified
granting compensation of Rs.11,59,878/-
as against Rs.10,18,790/- awarded by the
Tribunal with interest at 6% per annum
from the date of petition till its realization
(iii) The Insurance Company is directed to
deposit the enhanced compensation amount
within six weeks from today.
(iv) The appeal filed by the Insurance Company
in MFA No.8334/2014 is dismissed.
(v) The amount in deposit, if any, be
transmitted to the concerned Tribunal
forthwith.
(vi) The Registry is directed to transmit the
records to the concerned Tribunal,
forthwith.
Sd/-
JUDGE
cp*
