Karnataka High Court
Smt. Nalini L vs Chandana R on 19 April, 2024
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MFA No. 3529 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 3529 OF 2017 (MV-I)
BETWEEN:
SMT. NALINI L.
W/O J. LAKSHMANA
AGED ABOUT 41 YEARS
R/AT. NO.107, KAVIKA QUARTERS
MYSORE ROAD, BYATRAYANAPURA
BANGALORE 560 026.
EARLIER RESIDING AT:
NO.33/32 A, NARAYANA GOWDA BUILDING
MALLATHALLI, BANGALORE 560 056.
...APPELLANT
(BY SRI. K.V. SHYAMAPRASADA., ADVOCATE)
AND:
1. CHANDANA R
D/O. V. RAJA
NO.764, 5TH CROSS, 4TH MAIN
Digitally signed by
3RD STATE, BEML LAYOUT
MOUNESHWARAPPA
NAGARATHNA
RAJARAJESHWARI NAGAR
Location: HIGH BANGALORE 560 098.
COURT OF
KARNATAKA
2. IFFCO-TOKIO GENERAL
INSURANCE COMPANY LTD.,
REPRESENTED BY ITS MANAGER
CUSTOMER SERVICE CENTRE
SRISHANTHI TOWERS
5TH FLOOR, NO.141, 3RD MAIN
EAST OF N G E F LAYOUT
KASTURINAGAR, BANGALORE 560 043.
...RESPONDENTS
(BY NOTICE TO R1 IS DISPENSED WITH V/O/D 04.04.2024.
SRI. SHANKARA REDDY.C., ADVOCATE FOR R2)
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MFA No. 3529 of 2017
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 16.01.2017 PASSED IN MVC
NO.3192/2016 ON THE FILE OF THE MEMBER, MACT, XVI
ADDITIONAL SMALL CAUSES JUDGE, BENGALURU (SCCH-14),
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant aggrieved by the
judgment and award dated 16-01-2017 passed in M.V.C.
No.3192/2016 on the file of the Motor Accident Claims
Tribunal and XVI Additional Judge, Court of Small Causes,
Bengaluru, whereby, the Tribunal awarded a sum of
Rs.2,93,000/- as compensation.
2. For the sake of convenience, the parties are
referred to as they are referred to in the claim petition
before the Tribunal.
3. The claim petition was filed seeking
compensation of Rs.8,00,000/- on account of the injuries
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sustained by the claimant in road traffic accident that took
place on 27-04-2016 at about 04.00 p.m., when the
claimant was proceeding as a pillion rider on motor cycle
bearing registration No.KA-02-U-4597 from Mysore road to
Attiguppe. When they reached near Deepanjali nagar
railway bridge to West of Chord road, at that time,
motorcycle ridden by its rider bearing registration
No.KA-05-JJ- 9929 due to the rash and negligent
manner, in a high speed from its behind in the same
direction dashed against the claimant. As a result, the
claimant fell down and sustained grievous injuries all over
the body. Thereafter, the claimant was shifted to
Gurushree Hi-Tech Multi Speciality Hospital, Bengaluru.
She has undergone surgery for her left hand with implants
and was discharged with an advice for follow up treatment
and rest.
4. The Tribunal considering the evidence on record
at Exs.P1 to P.16 and considering the oral evidence of
PWs.1 to 3, awarded compensation of Rs.2,93,000/-.
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5. Learned counsel for the appellant/claimant
submits that the Tribunal has failed to consider the injuries
sustained by the claimant and the amount that were spent
towards treatment. Injuries are grievous in nature and the
Tribunal has failed to grant reasonable amount for the said
injuries. He further submitted that the compensation that
was granted by the Tribunal was not reasonable one.
Hence, he prayed to allow the appeal.
6. Learned counsel for respondent No.2/Insurance
Company submits that the Tribunal considering the
medical evidence as well as oral evidence and other
exhibits has reasonably granted the compensation. He
further submitted that no grounds are made out for
seeking enhancement of compensation.
7. As there is no dispute regarding injuries
sustained by the claimant in road traffic accident occurred
on 27-04-2016 at about 4.00 p.m. due to rash and
negligent driving of motorcycle bearing registration
No.KA-05-JJ-9929, by its driver and liability of the insurer
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of the offending vehicle, the only point that arises for my
consideration in the appeal is:
"Whether quantum of compensation
awarded by the Tribunal is just and reasonable
or does it call for enhancement?"
8. After hearing the learned counsel appearing for
the parties and perusing the judgment and award of the
Tribunal, I am of the view that the compensation awarded
by the Tribunal is not just and reasonable, it is on the
lower side and hence, it is required to be enhanced.
9. As per Ex.P6-Wound Certificate, the claimant
sustained the following injuries -
1) Tenderness, swelling, difficulty in
movement of left shoulder
2) X-ray - Comminuted fracture of left
proximal humerus.
The claimant was treated at Gurushree Hi-Tech Multi
Speciality Hospital, Bengaluru, wherein she was treated as
in-patient from 27-04-2016 to 30-04-2016 i.e. for a period
of four days. The injuries sustained and treatment taken
by the claimant is also supported by the oral evidence of
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the claimant and the Doctor, who were examined as PWs.1
to 3, respectively. P.W.2 Dr.Shivaprakash has assessed
the disability of the claimant as 55% to left upper limb and
18% to whole body as permanent disability. He had made
the following observation"
Healed scar over the anterior fold of 10x0.5 cm
with Kheloid formation
Wasting of arm and shoulder girdle present
Tenderness with irregular thickening of upper
end of humerus compared to right upper limb
ROM-Limitation of abduction by 90 degree
(0-180)
Extension and flexion by 145 degree (0-220)
Rotations-Internal rotation-60 degree (0-90
degree)
External rotation-40 degree (0-90degree)
Difficulty to lift or carry weight in thr left upper
limb
Difficulty in using left upper limb for her routine
work
10. Considering the fracture sustained by the
claimant, a sum of Rs.40,000/- is awarded by the
Tribunal under the head 'Pain and sufferings', which is
reasonable one. Hence, no interference in that regard is
called for by this Court.
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11. The Tribunal awarded a sum of Rs.8,000/-
towards 'Medical expenses', which is reasonable amount
and no interference in that regard is called for by this
Court.
12. Towards 'Nourishment, conveyance and
attendant charges', the Tribunal has awarded
Rs.10,000/-, which is not a reasonable amount.
Therefore, additional amount of Rs.10,000/- is granted
under the said head.
13. Towards 'loss of income during laid up
period', the Tribunal has assessed the income of the
claimant, her avocation being tailor, at Rs.8,000/-
notionally which is on the lower side and has awarded
Rs.16,000/- taking the income of the claimant at
Rs.8,000/- for two months. Having regard to the chart
prepared by the Karnataka State Legal Services Authority,
the appropriate income to be taken is at Rs.9,500/- in the
absence of proof of income. Thus, the notional income of
the claimant is Rs.9,500/- instead of Rs.8,000/- taken by
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the Tribunal. The nature of injuries suggest that she must
have been under rest and treatment for a period of three
months and therefore, a sum of Rs.28,500/- (Rs.9,500 x
3) is awarded under the said head as against Rs.16,000/-
awarded by the Tribunal by taking notional income at the
rate of Rs.9,500/- per month. Therefore, additional
amount of Rs.12,500/- is granted under the said head.
[
14. Towards 'loss of future income', the Tribunal
awarded a sum of Rs.1,59,000/-. The accident is of the
year 2016. The income of claimant is taken at Rs.9,500/-
per month. The disability is considered at 11% by the
Tribunal, which is a reasonable one. Then 11% of the
notional income of Rs.9,500/- is calculated, it works out to
Rs.1045/- (11% of Rs.9,500). Considering the age of the
claimant, the multiplier applicable is `11'. Then, the loss of
earning due to permanent disability would be
Rs.1,88,100/- (1045 x 12 x 11). Therefore, a sum of
Rs.1,88,100/- is awarded as against Rs.1,59,000/-
awarded by the Tribunal.
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15. The Tribunal awarded a sum of Rs.25,000/-
towards 'disability' which is reasonable one. Hence, no
interference in that regard is called for by this Court.
16. The Tribunal has awarded compensation of
Rs.25,000/- under the head 'loss of amenities'. Hence,
no interference is called for in that regard by this Court.
[ 17. The Tribunal has awarded Rs.10,000/- under
the head 'Future medical expenses', which is
reasonable one and no interference is called for in that
regard by this Court.
18. The Tribunal has not awarded any
compensation under the head 'removal of implants',
Hence, a sum of Rs.10,000/- is awarded under the said
head.
19. Thus, the claimant is entitled for the following
compensation:
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HEADS Rs.
1 Towards pain and sufferings 40,000.00
2 Towards medical expenses 8,000.00
3 Towards nourishment, conveyance and
20,000.00
attendant charges
4 Loss of income during laid up period 28,500.00
5 Loss of future income 1,88,100.00
6 Disability 25,000.00
7 Loss of amenities 25,000.00
8 Future Medical expenses 10,000.00
9 Removal of implants 10,000.00
TOTAL 3,54,600.00
Less: Compensation awarded by the
2,93,000.00
Tribunal
Enhanced compensation 61,600.00
14. Hence, claimants are entitled for a total
compensation of Rs.3,54,600/- as against Rs.2,93,000/-
awarded by the Tribunal. Accordingly, I pass the following:
ORDER
1. Miscellaneous First Appeal is allowed-in-
part.
2. The judgment and award dated 16.01.2017
passed in M.V.C. No.3192 of 2016 on the
file of the Motor Accident Claims Tribunal
and XVI Additional Judge, Court of Small
Causes, Bengaluru is modified to the extent
stated herein above,
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3. The claimants are entitled for a total
compensation of Rs.3,54,600/- as against
Rs.2,93,000/- awarded by the Tribunal with
interest at 6% per annum on the additional
compensation of Rs.61,600/- from the
date of filing of the claim petition till the
date of its realisation;
4. Respondent No.2 / Insurance Company is
directed to deposit the additional
compensation amount along with interest
within a period of four weeks from the date
of receipt of a copy of this judgment;
5. Out of the additional compensation, the
Tribunal is directed to disburse the entire
additional compensation to the claimant on
proper identification.
No order as to costs.
Sd/-
JUDGE
PSJ
