Karnataka High Court

Shivamma vs Mahadevagowda on 23 August, 2023

Bench: H T Prasad

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                                                         NC: 2023:KHC:30028
                                                      MFA No. 6548 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 23RD DAY OF AUGUST, 2023

                                           BEFORE
                        THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                   MISCELLANEOUS FIRST APPEAL NO. 6548 OF 2018 (MV)
                   BETWEEN:

                   SHIVAMMA
                   W/O. SIDDARAJU
                   AGED ABOUT 62 YEARS
                   R/O. NO.1442, BAZAR STREET
                   K.R. SAGARA, SRIRANGAPATNA TALUK
                   MANDYA DISTRICT-571 438.
                                                               ...APPELLANT
                   (BY SRI. SREENIVASAN M Y.,ADVOCATE)

                   AND:
                   1. MAHADEVAGOWDA
                      S/O. BASAVEGOWDA
                      MAJOR
                      R/AT NO.45, GIRIDHARSHINI LAYOUT
                      ALANAHALLY LAYOUT,T.N. PURA ROAD
Digitally signed      MYSORE-570 022.
by
DHANALAKSHMI
MURTHY             2.    THE BRANCH MANAGER
Location: High           RELIANCE GENERAL INSURANCE CO. LTD.,
Court of                 NO.36/D, 1ST FLOOR
Karnataka
                         MYSORE TRADE CENTER
                         OPP. KSRTC BUS STAND
                         B.N. ROAD, MYSORE-570 031.
                                                             ...RESPONDENTS
                   (BY SRI.H.C.BETSUR., ADVOCATE FOR R2:
                   NOTICE TO R1 IS DISPENSED WITH V/O DATED:23.08.2023)

                        THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                   AGAINST THE JUDGMENT AND AWARD DATED:15.03.2018
                   PASSED IN MVC NO.1652/2016 ON THE FILE OF THE
                               -2-
                                           NC: 2023:KHC:30028
                                         MFA No. 6548 of 2018




ADDITIONAL SENIOR CIVIL JUDGE & MACT, SRIRANGAPATNA,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                         JUDGMENT

1. 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 15.3.2018 passed by MACT, Srirangapatna in MVC

No.1652/2016.

2. Facts giving rise to the filing of the appeal briefly

stated are that on 25.11.2016 when the claimant along

with others were traveling in Chevrolet Tavera car bearing

Registration No.KA-05-V-5804, near Vajamangala gate, on

Mysore-T.Narasipura main road, at that time, the driver of

the car drove the same at a high speed and in a rash and

negligent manner and caused accident. As a result of the

aforesaid accident, the claimant sustained grievous

injuries and was hospitalized.

NC: 2023:KHC:30028 MFA No. 6548 of 2018

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

charges, etc. It was further pleaded that the accident

occurred purely on account of the rash and negligent

driving of the offending vehicle by its driver.

4. On service of notice, the respondent No.2 appeared

through counsel and filed written statement in which the

averments made in the petition were denied. The

respondent No.1 did not appear before the Tribunal inspite

of service of notice and was placed ex-parte.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant himself was examined as PW-1

and Dr.Jaganna.D was examined as CW-1 and got

exhibited documents namely Ex.P1 to Ex.P40 and Ex.C-1

to C-5. On behalf of the respondents, neither any witness

was examined nor any document was produced. The

NC: 2023:KHC:30028 MFA No. 6548 of 2018

Claims Tribunal, by the impugned judgment, inter alia,

held that the accident took place on account of rash and

negligent driving of the offending vehicle by its driver, as a

result of which, the claimant sustained injuries. The

Tribunal further held that the claimant is entitled to a

compensation of Rs.141,250/- along with interest at the

rate of 9% 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:

a) Firstly, even though the claimant claims that she was

running stationery shop and earning Rs.15,000/- per

month, but the Tribunal has taken the notional income as

merely as Rs.6,500/- p.m.

b) Secondly, the claimant has examined the doctor as

CW-1. The doctor in his evidence has stated that the

claimant has suffered disability of 25.85% to particular

NC: 2023:KHC:30028 MFA No. 6548 of 2018

limb. But the Tribunal has taken the whole body disability

at 9%, which is on the lower side.

c) Thirdly, due to the accident, the claimant has

sustained grievous injuries. She was treated as inpatient

for a period of 4 days. Even after discharge from the

hospital, she was not in a position to discharge her regular

work. He 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.

d) Lastly, even though the doctor has stated that the

claimant requires Rs.35,000/- for removal of implants and

Rs.20,000/- for breech surgery, but the Tribunal has

awarded only Rs.20,000/- under the head of 'future

medical expenses'. Hence, he sought for allowing the

appeal.

NC: 2023:KHC:30028 MFA No. 6548 of 2018

7. On the other hand, the learned counsel for the

Insurance Company has raised following counter

contentions:

a) Firstly, even though the claimant claims that he was

earning Rs.15,000/- per month, she has not produced any

documents to establish her income. In the absence of

proof of income, the Tribunal has rightly assessed the

income of the claimant notionally.

b) Secondly, the Tribunal considering the injuries

sustained by the claimant and evidence of the doctor, has

rightly assessed the whole body disability at ...%.

c) Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the compensation awarded by the Tribunal under

the heads of 'loss of amenities', 'pain and sufferings',

'future medical expenses' and other incidental expenses

are just and reasonable and it does not call for

interference.

d) Lastly, in view of the Division Bench decision of this

Court in the case of Ms.Joyeeta Bose and others -v-

NC: 2023:KHC:30028 MFA No. 6548 of 2018

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 9% 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 judgment and award of the Tribunal.

9. It is not in dispute that the claimant has sustained

injuries in the road traffic accident occurred on 25.11.2016

due to rash and negligent driving of the offending vehicle

by its driver.

10. The claimant claims that she was earning

Rs.15,000/- 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

NC: 2023:KHC:30028 MFA No. 6548 of 2018

2016, the notional income has to be taken at Rs.9,500/-

p.m.

11. As per wound certificate, the claimant has sustained

abrasion covered with slab over left elbow, abrasion

covered with scab over left foot and tenderness over right

clavicle and right hip. The doctor in his evidence has

stated that the claimant has suffered disability of 25.85%

to particular limb. Therefore, taking into consideration the

deposition of the doctor and injuries mentioned in the

wound certificate, the Tribunal has rightly taken the whole

body disability at 9%. The claimant is aged about 60 years

at the time of the accident and multiplier applicable to

her age group is '9'. Thus, the claimant is entitled for

compensation of Rs.92,340/- (Rs.9,500*12*9*9%) on

account of 'loss of future income'.

12. The nature of injuries suggests that the claimant

must have been under rest and treatment for a period of 2

months. Therefore, the claimant is entitled for

NC: 2023:KHC:30028 MFA No. 6548 of 2018

compensation of Rs.19,000/- (Rs.9,500*2 months) under

the head 'loss of income during laid up period'.

13. The claimant was treated as inpatient for more than

4 days in the hospital and thereafter, has received further

treatment. Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He has

suffered lot of pain during treatment and he has to suffer

with the disability stated by the doctor throughout his life.

Considering the same, I am inclined to enhance the

compensation awarded by the Tribunal under the head of

'pain and sufferings' from Rs.20,000/- to Rs.40,000/-

and under the head of 'loss of amenities' from Rs.10,000/-

to Rs.30,000/-.

14. The doctor in his evidence has stated that the

claimant requires about Rs.35,000/- for removal of

implants and Rs.20,000/- for breech surgery. Considering

the nature of injuries and evidence of doctor, I am inclined

to enhance the compensation awarded by the Tribunal

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NC: 2023:KHC:30028 MFA No. 6548 of 2018

under the head of 'future medical expenses' from

Rs.20,000/- to Rs.45,000/-.

15. Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

16. Thus, the claimant is entitled to the following

compensation:

                               As awarded          As awarded
                                 by the              by this
  Compensation under
                                Tribunal              Court
    different Heads
                                      (Rs.)           (Rs.)

 Pain and sufferings                    20,000           40,000

 Medical expenses                       17,570           17,570

 Food, nourishment,                      4,000            4,000
 conveyance and
 attendant charges

 Loss of income during                   6,500           19,000
 laid up period

 Loss of amenities                      10,000           30,000

 Loss of future income                  63,180           92,340
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                                              NC: 2023:KHC:30028
                                           MFA No. 6548 of 2018




     Future medical expenses             20,000        45,000

                   Total                141,250      247,910

17. In the result, I pass the following order:

ORDER

a) The appeal is allowed in part.

b) The judgment of the Claims Tribunal is modified.

c) The claimant is entitled to a total compensation of

Rs.247,910/-.

d) In view of judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE' (supra), the

enhanced compensation shall carry interest at 6%

per annum.

e) The Insurance Company is directed to deposit the

compensation amount along with interest from the