Karnataka High Court
M.B.Nagarathna vs Siddaraju S on 21 November, 2023
-1-
NC: 2023:KHC:42354
MFA No. 5870 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
M.F.A. NO. 5870 OF 2017 (MV-I)
BETWEEN:
M.B.NAGARATHNA
W/O D S LINGARAJU,
D/O LATE M BASAVARAJU,
AGED ABOUT 46 YEARS,
R/AT NO.590, SUBRAMANYA NAGARA,
TURUVEKERE TALUK,
TUMKUR DISTRICT-572 227
... APPELLANT
(BY SRI. A K BHAT., ADVOCATE)
AND:
1. SIDDARAJU S
Digitally S/O SANNAPPA,
signed by JAI
JYOTHI J MAJOR BY AGE,
Location: NO.97, 7TH CROSS, A G BLOCK,
HIGH COURT
OF GANDHINAGAR,
KARNATAKA
MYSORE-570 001
(R C OWNER OF AUTO RICKSHAW
BEARING REG NO.KA-05-A-8089)
2. SMT SUMALATHA
MAJOR BY AGE,
W/O D KUMAR,
NO.214, K R MILL COLONY,
MYSORE-570 001
-2-
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MFA No. 5870 of 2017
(POLICY HOLDER OF AUTO RICKSHAW
BEARING REG.NO.KA-05-A-8089)
3. TATA AIG GENERAL INSURANCE COMPANY LTD
NO.69, 2ND FLOOR,
JAMBUKESHWARA ARCADE,
MILLERS ROAD,
BENGALURU-560 052
BY ITS MANAGER
(INSURER OF AUTO RIKSHAW
BEARING NO.05-A-8089)
(POLICY NO.015249737300,
VALID FROM 29/05/2013 TO 28/05/2014)
... RESPONDENTS
(BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR
SRI PRADEEP, ADVOCATE FOR R3;
R2 - SERVED AND UNREPRESENTED;
V/O DATED 03.11.2023, NOTICE TO R1 IS D/W)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:10.04.2017 PASSED IN MVC
NO.1045/2016 ON THE FILE OF THE IX ADDITIONAL SMALL
CAUSES JUDGE, & XXXIV ACMM, MEMBER, MACT-7, COURT OF
SMALL CAUSES, BENGALURU (SCCH-7), PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal filed by the claimant aggrieved by
the award passed in MVC No.1045/2016, dated
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10.04.2017, by the IX Additional Small Causes And
Addl.MACT, Bengaluru, seeking enhancement of the
compensation.
2. The claim petition is filed seeking compensation
of an amount of Rs.10,00,000/- for the injuries sustained
by the claimant. The court below had granted an amount
of Rs.3,90,298/-. It is the case of the claimant that as the
claimant is a Tailor and because of the injuries sustained
in the accident, she had sustained disability. The claimant
has sustained fracture of right femur and because of the
said injury she is not able to walk or stand for a longer
duration. The claimant was a tailor and a housewife and
earning more than Rs.10,000/- p.m. The court below had
taken the monthly income at Rs.8,000/-. When it comes to
the disability the doctor has stated that the claimant has
suffered 35% disability to the particular limb and the court
below has taken 10% disability and under the head of loss
of future income due to disability granted an amount of
Rs.1,34,400/-, towards pain and suffering an amount of
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Rs.50,000/-, towards loss of amenities an amount of
Rs.20,000/-, towards loss of income during laid up period
an amount of Rs.24,000/-, towards medical expenses an
amount of Rs.1,50,898/-, towards conveyance, attendant
charges, food, nourishment and diet charges an amount of
Rs.11,000/- was granted. Altogether an amount of
Rs.3,90,298/- was granted.
3. Learned counsel appearing for the claimant
submits that as per the evidence of the doctor, there is
difference in the walking movement and the claimant is
limping and not able to walk and all other movements are
literally restricted and she cannot kneel down and do any
of the work. It is submitted that in that case the court
below ought to have taken the disability at 20% to the
whole-body. That in every case it is not only 1/3rd of the
disability to the limb has to be taken to the whole-body.
He submits that the claimant being a homemaker, she will
be facing difficulty and the Tribunal considering 10% as
disability is on the lower side. It is submitted that even
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towards loss of amenities in life, food, nourishment,
conveyance and attendant charges the compensation that
was granted by the court below was not reasonable.
4. On the other hand the learned counsel for the
insurance company submits that no evidence was placed
in support of the income of the claimant and hence, the
court below had taken the income at Rs.8,000/- p.m. He
submits that when the doctor has opined that there is
35% disability to the particular limb, the court below had
rightly taken the whole-body disability at 10%. It is
submitted that no good grounds are made out for
enhancement of the compensation.
5. In this case the claimant is a homemaker and a
tailor. According to her she is earning an amount of
Rs.10,000/- per month. No evidence is produced in this
regard. As this is an accident of the year 2013 the court
below had taken the income at Rs.8,000/- p.m., and this
court finds no reason to enhance the same. Then coming
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to the disability basing on the percentage of disability and
considering the evidence of the doctor, facts and
circumstances of the case, the court has to consider the
disability. In this case the doctor has assessed the
disability at 35% to the particular limb, 1/3rd of it comes
to 11.66%, which is rounded off to 12%. Even if the
evidence of the Doctor has to be taken into consideration,
he has only stated that the claimant cannot stand for long
time, difficulty to sit in cross leg and squat and difficultly
to walk. Apart from this the disability would not come in
the way of other day to day activities. Hence, considering
the same, this Court is inclined to take 12% as the whole-
body disability. Hence, the claimant is entitled for an
amount of Rs.1,61,280/- (Rs.8,000 x 12 x 14 x 12/100)-
towards loss of future income due to disability. Towards
pain and suffering the court below had granted an
amount of Rs.50,000/- which is a reasonable amount
and no interference is called for. Towards loss of
amenities, considering the injuries the court below had
granted an amount of Rs.20,000/-, this court is inclined to
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grant an amount of Rs.30,000/-. Towards medical
expenses an amount of Rs.1,50,898/- is granted which
is based on the bills and receipts and no interference is
called for. Towards Loss of income during laid up
period at Rs.24,000/- is reasonable. Under the head of
conveyance, attendant charges, nourishment and
food an amount of Rs.11,000/- is awarded this court is
inclined to grant an amount of Rs.15,000/-.
6. In the light of the law laid down by the Hon'ble
Supreme Court in the case of V.MEKALA vs. M.
MALATHI AND ANOTHER1, the claimant is entitled for
an amount of Rs.10,000/- towards Legal Expenses.
7. The claimant is therefore, entitled to the
compensation under the following heads:
Heads Compensation
Awarded
1. Loss of Future Income due to : Rs. 1,61,280/-
disability
(2014) 11 SCC 178
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2. Pain and Sufferings : Rs. 50,000/-
Loss of Earning during laid up : Rs. 24,000/-
3.
period (Rs.8,000 x 3 )
4. Medical Expenses : Rs. 1,50,898/-
5. Loss of Amenities & Future : Rs. 30,000/-
Discomfort
6. Conveyance, Attendant, Food : Rs. 15,000/-
and Nourishment
7. Legal Expenses : Rs. 10,000/-
TOTAL : Rs. 4,41,178/-
10. Accordingly, the appeal is partly allowed,
enhancing the compensation amount from Rs.3,90,298/-
to Rs.4,41,178/-.
i) The enhanced amount shall carry interest at 6%
p.a., from the date of petition till the date of
realization.
iii) The respondent - insurance company shall
deposit the amount within a period of eight
weeks from the date of receipt of copy of the
judgment. On such deposit, the claimant is
entitled to withdraw the entire amount without
furnishing any security.
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iv) Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
copy of the order passed by this Court forthwith
without any delay.
v) No costs.
Pending miscellaneous petitions, if any, shall stand
closed.
SD/-
JUDGE
JJ
