Karnataka High Court
Malathi vs B Mohammed on 19 June, 2023
Bench: C M Joshi
-1-
NC: 2023:KHC:21156
MFA No. 2962 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 2962 OF 2020 (MV-I)
BETWEEN:
SMT. MALATHI,
W/O. UMANATH AMIN,
AGED AOUT 62 YEARS,
R/AT H.NO: 5-69,
NADSALU PADUBIDRI,
UDUPI TQ AND DIST-78.
...APPELLANT
(BY SRI. SAMPATH KUMAR A.V., ADVOCATE FOR
SRI. PRATHEEP K.C, ADVOCATE FOR APPELLANT)
AND:
1. B.MOHAMMED,
S/O IJJABBA,
AGED ABOUT 42 YEARS,
Digitally signed R/AT H.NO:2-59,
by T S DODDAKERE (II) BALKUNJE (P),
NAGARATHNA
Location: High MANGALORE TALUK,
Court of D K DISTRICT-575 001.
Karnataka
2. THE HDFC ERGO GENERAL INS. CO. LTD.,
DIVISIONAL OFFICER,
DIVISIONAL MANAGER,
2ND FLOOR, ESSEL CENTER,
M. G. ROAD, MANGALORE,
D. K. DISTRICT-575 002.
...RESPONDENTS
(BY SRI. B. PRADEEP, ADVOCATE FOR R2;
NOTICE TO R1 IS D/W V/O DATED 19.10.2022)
-2-
NC: 2023:KHC:21156
MFA No. 2962 of 2020
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 06.03.2020 PASSED IN MVC
NO.43/2018 ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
By consent of both the parties, the appeal is taken up for
final disposal though it is slated for admission.
2. Heard the learned counsel for the appellant and
respondent No.2.
3. The appellant is the petitioner before the learned II
Additional Senior Civil Judge and Additional MACT, Udupi in
MVC.No.43/2018. Being aggrieved by the judgment and award
passed on 06.03.2020, the petitioner is before this Court.
4. The petitioner contended that on 18.08.2017 at
12.20 p.m., while she was walking by the side of the road, a
car bearing registration No.KA-14-M-5339 came from Udupi
and dashed against the petitioner causing the injuries. She was
taken to Srinivas Hospital, Mukka, Mangaluru and later, to
NC: 2023:KHC:21156
MFA No. 2962 of 2020
A.J.Hospital, Mangaluru and she was inpatient for a period of
17 days. The petitioner contended that she had spent huge
amount for treatment and the accident was due to the
negligence on the part of the car driver. As such, the owner
and insurer of the offending vehicle are liable to pay the
compensation. She also contends that she was aged 62 years
at the time of accident and was earning Rs.400/- per day by
working as a coolie. As such, there is a permanent loss of
income for her and adequate compensation be awarded to her.
5. On issuance of notice, the respondent No.2-
Insurance Company appeared before the Tribunal and filed
objections to the petition. Respondent No.1 though appeared
did not file any written statement.
6. The respondent No.2/Insurance Company
contended that the compensation claimed by the petitioner is
highly exorbitant, imaginary and untenable in law and that
there is violation of terms and conditions of the policy by the
driver. It has also contended that the petitioner be put to strict
proof of the contentions taken up by him.
NC: 2023:KHC:21156
MFA No. 2962 of 2020
7. On the basis of the above pleadings, the necessary
issues were framed by the Tribunal. The petitioner was
examined as PW.1 and the Doctor who assessed her disability
was examined as PW.2. The documents were marked as Exs.P1
to P19. No evidence was adduced on behalf of the respondents.
8. After hearing both the sides, the Tribunal partly
allowed the petition and awarded the compensation of
Rs.4,13,066/- under the following heads:
SL. AMOUNT
PARTICULARS
NO. (IN RS.)
Medical expenses relating to
1 treatment and hospitalization 2,49,386/-
and medicines
2 Pain and suffering 40,000/-
Loss of income during the
3 28,000/-
treatment period
Loss of future earning
4 capacity due to permanent 64,680/-
disability
5 Conveyance Charges 6,000/-
Food, nourishment, attendant
6 5,000/-
charges
7 Loss of amenities 20,000/-
TOTAL 4,13,066/-
9. Being aggrieved by the said judgment and award,
the petitioner is in appeal before this Court.
NC: 2023:KHC:21156
MFA No. 2962 of 2020
10. On issuance of notice, respondent No.2-Insurance
Company has appeared through its counsel before this Court
and notice to respondent No.1 was dispensed with.
11. Learned counsel appearing for the appellant
contends that the compensation awarded by the Tribunal is
meager and the notional income of the petitioner was not
properly considered by the Tribunal. He contends that though
she was inpatient for a period of 17 days, the compensation
under the head of 'conveyance charges, food, nourishment etc.'
was not properly assessed by the Tribunal. Hence, he has
sought for enhancement of the compensation amount.
12. Per contra, learned counsel appearing for
respondent No.2 contends that the compensation awarded by
the Tribunal is just, proper and correct and no enhancement is
warranted in the circumstances of the case. A perusal of the
records available show that the petitioner is aged about 62
years and she claims to be a Coolie and was earning Rs.400/-
per day. Even though such contention is taken up, there is no
cogent evidence which would prove her income and therefore,
the Tribunal was justified in taking the notional income at
NC: 2023:KHC:21156
MFA No. 2962 of 2020
Rs.7,000/- per month. It is relevant to note that the guidelines
issued by the KSLSA concerning the notional income for
settlement of disputes before Lok-Adalath is Rs.11,000/-
pertaining to the year 2017. In umpteen number of decisions,
this Court has held that the guidelines issued by the KSLSA are
in general conformity with the wages fixed under the Minimum
Wages Act and therefore, they may be accepted. In that view
of the matter, the notional income of the petitioner is held to be
Rs.11,000/- per month. The petitioner is aged 62 years and
therefore, the multiplier is '7', regarding which, there is no
dispute between the parties.
13. The petitioner had suffered injuries as below:
"1. Reddish contusion of 12 cm X 8 cm on the left side of the
chest with underlying fracture of 3rd, 4th, 5th, 6th and 6th
ribs.
2. Laceration of 2 cm X 1 cm X bone deep on the lower one
third of left leg with comminuted fracture of upper one
third of tibia, medial malleolus and middle one third of
fibula."
14. PW.2 who assessed the disability of the petitioner
has stated that there is disability of 21% to the left lower limb
and considering the same as well as the age of the petitioner,
NC: 2023:KHC:21156
MFA No. 2962 of 2020
the Tribunal has taken the disability at 11%. The assessment of
the disability of the petitioner by the Tribunal is also proper and
correct and there is no need for reconsideration of the same.
15. In view of the above discussion, the 'loss of future
earning' of the petitioner is calculated as Rs.11,000/- X 12 X 7
X 11% = Rs.1,01,640/-.
16. As a consequence, the 'loss of income during the
laid up period' is calculated as Rs.11,000/- X 4 = Rs.44,000/-.
17. Even though the petitioner was inpatient for a
period of 17 days, the Tribunal has awarded the compensation
of Rs.6,000/- under the head of 'conveyance charges' and
Rs.5,000/- under the head of 'food, nourishment and attendant
charges'. Therefore, the compensation under the said head is to
be awarded at Rs.16,000/-.
18. The compensation awarded by the Tribunal under
the head of 'pain and suffering', 'loss of amenities' and 'medical
expenses' are proper and correct and no enhancement is
necessary. Hence, the petitioner is entitled for a revised
compensation of Rs.4,71,026/- under the following heads:
NC: 2023:KHC:21156
MFA No. 2962 of 2020
SL. AMOUNT
PARTICULARS
NO. (IN RS.)
Medical expenses relating to
1 treatment and hospitalization 2,49,386/-
and medicines
2 Pain and suffering 40,000/-
Loss of income during the
3 44,000/-
treatment period
Loss of future earning
4 capacity due to permanent 1,01,640/-
disability
Food, nourishment, attendant
5 charges and Conveyance 16,000/-
Charges
6 Loss of amenities 20,000/-
TOTAL 4,71,026/-
19. Thus, the petitioner is entitled for enhanced
compensation of Rs.57,960/- with interest and therefore, the
appeal deserves to be allowed in part. Hence, the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award passed by the
Tribunal is modified by awarding a sum of Rs.57,960/- in
addition to what has been awarded by the Tribunal together
with interest at 6% p.a. from the date of petition till its deposit.
NC: 2023:KHC:21156
MFA No. 2962 of 2020
(iii) The respondent No.2 Insurance company is directed
to deposit the entire compensation amount within a period of
six weeks from the date of this order.
(iv) In the event of deposit of amount, the entire
amount be released to the petitioner.
(v) Rest of the order of the Tribunal stands unaltered.
Sd/-
JUDGE
NR/-
