Karnataka High Court
Smt. Reyazbanu vs Chethan Kumar on 27 October, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27th DAY OF OCTOBER 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.8370 OF 2019(MV)
BETWEEN
SMT. REYAZBANU
W/O MIRZA SHA-E-JAMA AHAMED
AGED ABOUT 44 YEARS
OCC:BEEDI MAKER AND HOUSEHOLD WORK,
R/O D.NO.1000, 3RD CROSS
2ND MAIN,
S.NIJALINGAPPA BADAVANE
DAVANAGERE-577 001.
...APPELLANT
(BY SMT.SARITHA KULKARNI, ADV.)
AND
1. CHETHAN KUMAR
S/O PUKRAJ
R/O DOOR NO.611/1
NEAR BASAVESHWARA TEMPLE
KAIPETE DAVANAGERE-577 001.
2. SHA PUKRAJ & SONS
OWNER
R/O NO.611/1
2
NEAR BASAVESHWARA TEMPLE
KAIPETE, DAVANAGERE-577 001.
3. THE MANAGER
NEW INDIA ASSURANCE CO. LTD
BRANCH OFFICE NO.289/12
2ND FLOOR,
A.M.ARCHADE
NEAR VIDYARTHI BHAVAN
DAVANAGERE-577 001.
...RESPONDENTS
(BY SRI.G.S. MURULAIAH, ADV. FOR R3:
NOTICE TO R1 & R2 IS DISPENSED WITH
V/O DATED: 28.06.2022)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
11.07.2019 PASSED IN MVC NO.135/2019 ON THE
FILE OF THE PRL. SENIOR CIVIL JUDGE AND MEMBER,
MACT-IV DAVANAGERE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
This appeal under Section 173(1) of Motor
Vehicles Act, 1988 (hereinafter referred to as 'the
Act') has been filed by the claimant being aggrieved
by the judgment dated 11.7.2019 passed by MACT,
Davanagere in MVC 135/2019.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 20.11.2017 when the
claimant was walking on ring road towards church
near Ayyappaswamy temple milk point, Nijalingappa
Layout, at that time, motorcycle bearing registration
No.KA-17-EF-2225 being ridden by its rider at a high
speed and in a rash and negligent manner, dashed to
the vehicle of the claimant. As a result of the
aforesaid accident, the claimant sustained grievous
injuries and was hospitalized.
3. The claimant filed a petition under Section
166 of the Act seeking compensation. It was pleaded
that she spent huge amount towards medical
expenses, conveyance, etc. It was further pleaded
that the accident occurred purely on account of the
rash and negligent riding of the offending vehicle by
its rider.
4. On service of notice, the respondents
appeared through counsel and filed written statement
in which the averments made in the petition were
denied.
5. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded the evidence. The claimant herself was
examined as PW-1 and Dr.Binay Kumar Singh was
examined as PW-2 and got exhibited documents
namely Ex.P1 to Ex.P15. On behalf of the
respondents, no witness was examined and got
exhibited documents namely Ex.R1. The Claims
Tribunal, by the impugned judgment, inter alia, held
that the accident took place on account of rash and
negligent riding of the offending vehicle by its rider, as
a result of which, the claimant sustained injuries. The
Tribunal further held that the claimant is entitled to a
compensation of Rs.3,50,550/- along with interest at
the rate of 8% p.a. and directed the Insurance
Company to deposit the compensation amount along
with interest. Being aggrieved, the present appeal has
been filed.
6. The learned counsel for the claimant has
raised the following contentions:
Firstly, even though the claimant claims that she
was doing beedi making work and earning Rs.20,000/-
per month, but the Tribunal has taken the notional
income as merely as Rs.9,000/- per month.
Secondly, the claimant has sustained grievous
injuries. She has examined the doctor as PW-2. The
doctor in his evidence has stated that the claimant has
suffered disability of 72% towards left ankle fracture.
Fracture is mal united. She is unable to do her day to
day work. But the Tribunal has taken the whole body
disability at 10%, which is on the lower side.
Thirdly, due to the accident, the claimant has
sustained grievous injuries. She was treated as
inpatient for a period of 15 days. Even after discharge
from the hospital, she was not in a position to
discharge his regular work. She has suffered lot of
pain during treatment. Considering the same, the
compensation awarded by the Tribunal under the
heads of 'loss of amenities', 'pain and sufferings' and
other incidental expenses are on the lower side.
Further, the doctor has deposed that claimant has to
undergo one more surgery for joint replacement. But
the Tribunal has not granted any compensation for
'future medical expenses'. Hence, he sought for
allowing the appeal.
7. On the other hand, the learned counsel for
the Insurance Company has raised following counter
contentions:
Firstly, even though the claimant claims that he
was earning Rs.20,000/- per month, she has not
produced any documents to establish her income.
Therefore, the Tribunal has rightly assessed the
income of the claimant notionally.
Secondly, even though the doctor in his evidence
has stated that claimant has suffered 72% disability to
left limb, he has not assessed the whole body
disability. In the cross examination, to the suggestion
put to him whether the claimant has sustained 6% to
7% disability, he has answered that he does not know
about the same. The Tribunal considering the injuries
sustained by the claimant and evidence of the doctor,
has rightly assessed the whole body disability at 10%.
Thirdly, even though the doctor has stated that
the claimant has to undergo one more surgery for
ankle joint replacement, the claimant has not
produced any estimation for the said surgery.
Therefore, the claimant is not entitled for any
compensation under the head of 'future medical
expenses'.
Fourthly, considering the injuries sustained by
the claimant and considering the age and avocation of
the claimant, the overall compensation awarded by
the Tribunal is just and reasonable and it does not call
for interference.
Fifthly, in view of the Division Bench decision of
this Court in the case of Ms.Joyeeta Bose and
others -v- Venkateshan.V and others (MFA
5896/2018 and connected matters disposed of
on 24.8.2020), the rate of interest awarded by the
Tribunal at 8% p.a. on the compensation amount is on
the higher side. Hence, he sought for dismissal of the
appeal.
8. Heard the learned counsel for the parties
and perused the records of the Tribunal.
9. It is not in dispute that the claimant has
sustained injuries in the road traffic accident occurred
due to rash and negligent riding of the offending
vehicle by its rider.
The claimant claims that she was earning
Rs.20,000/- per month. She has not produced any
documents to prove her income. Therefore, in the
absence of proof of income, notional income has to be
assessed. As per the guidelines issued by the
Karnataka State Legal Services Authority, for the
accident taken place in the year 2017, the notional
income has to be taken at Rs.11,000/- p.m.
As per wound certificate, the claimant has
sustained comminuted displaced fracture of both bone
distal 1/4th left leg. On examination, there is mal
union fracture of tibia lower 1/4 and united fracture of
fibula with plate-screw in situ. As per Ex.P-8, the
claimant has sustained ankle fracture. The doctor in
his evidence has stated that the claimant has suffered
disability of 72% to particular limb. Therefore, taking
into consideration the deposition of the doctor and
injuries mentioned in the wound certificate, the whole
body disability is taken at 20%. The claimant is aged
about 45 years at the time of the accident and
multiplier applicable to her age group is '14'. Thus, the
claimant is entitled for compensation of Rs.369,600/-
(Rs.11,000*12*14*20%) on account of 'loss of future
income'.
The nature of injuries suggests that the claimant
must have been under rest and treatment for a period
of 3 months. Therefore, the claimant is entitled for
compensation of Rs.33,000/- (Rs.11,000*3 months)
under the head 'loss of income during laid up period'.
The claimant was treated as inpatient for more
than 15 days in the hospital and thereafter, has
received further treatment. Due to the accident, the
claimant has suffered grievous injuries and also
undergone surgery. She has suffered lot of pain
during treatment and she has to suffer with the
disability stated by the doctor throughout her life.
Considering the same, I am inclined to enhance the
compensation awarded by the Tribunal under the head
of 'pain and sufferings' from Rs.30,000/- to
Rs.40,000/- and under the head of 'loss of amenities'
from Rs.10,000/- to Rs.20,000/-.
The doctor in his evidence has stated that the
claimant requires to undergo one more surgery for
ankle joint replacement. Considering the same, I am
inclined to enhance the compensation award a sum of
Rs.20,000/- towards 'future medical expenses'.
Considering the nature of injuries, the
compensation awarded by the Tribunal under other
heads is just and reasonable.
10. Thus, the claimant is entitled to the
following compensation:
As awarded As awarded
Compensation under by the by this
different Heads Tribunal Court
(Rs.) (Rs.)
Pain and sufferings 30,000 40,000
Medical expenses 117,350 117,350
Food, nourishment, 15,000 15,000
conveyance and
attendant charges
Loss of income during 27,000 33,000
laid up period
Loss of amenities 10,000 20,000
Loss of future income 151,200 369,600
Future medical expenses 0 20,000
Total 350,550 614,950
11. In the result, the appeal is allowed in
part. The judgment of the Claims Tribunal is modified.
The claimant is entitled to a total compensation
of Rs.614,950/-.
The Insurance Company is directed to deposit
the compensation amount along with interest @ 8%
(enhanced amount shall carry interest at 6% p.a.)
p.a. from the date of filing of the claim petition till the
date of realization, within a period of six weeks from
the date of receipt of copy of this judgment excluding
interest for the compensation awarded under the head
of 'future medical expenses'.
Sd/-
JUDGE
DM
