Karnataka High Court

Smt Malathi C.K vs M/S. Iffco Tokio General Insurance Co. ... on 6 August, 2024

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                                                           NC: 2024:KHC:31191
                                                         MFA No. 4508 of 2013




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 6TH DAY OF AUGUST, 2024

                                               BEFORE

                    THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA

                    MISCELLANEOUS FIRST APPEAL NO. 4508 OF 2013 (MV)

                   BETWEEN:

                   1.    SMT. MALATHI C.K.
                         W/O SRI. RAMESH,
                         AGED ABOUT 43 YEARS,
                         R/AT C/O VISHALAKSHI,
                         NO.118, 2ND FLOOR, 1ST CROSS,
                         VINAYAKA LAYOUT, K.G. NAGAR,
                         BANGALORE-560 018

                         PRESENT ADDRESS:
                         NO.63/3, 6TH CROSS,
                         2ND MAIN ROAD,
                         CHAMARAJPET,
                         BANGALORE-560018
                                                                 ...APPELLANT

                               (BY SRI T.N.VISWANATHA, ADVOCATE)
Digitally signed by
PRAJWAL A
Location: HIGH COURT AND:
OF KARNATAKA
                   1.    M/S. IFFCO TOKIO GENERAL INSURANCE CO. LTD.,
                         IFFCO BHAVAN, 4TH FLOOR,
                         NEAR HOTEL CHANDRIKA,
                         CUNNINGHAM ROAD,
                         BANGALORE-560052.

                   2.    MR. PRASANNA KUMAR N,
                         S/O SRI NARAYANA SETTY,
                         MAJOR, R/AT NO.63/4,
                         1ST FLOOR, 2ND OUT HOUSE,
                         APPURAO ROAD,
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                                          NC: 2024:KHC:31191
                                       MFA No. 4508 of 2013




      6TH MAIN ROAD,
      CHAMARAJPET,
      BANGALORE-560018.
                                             ...RESPONDENTS

                (VIDE ORDER DATED 06.08.2024,
     SRI D.VIJAYAKUMAR, ADVOCATE FOR R1 [THROUGH V.C.];
                         R2 SERVED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 5.11.2012 PASSED IN MVC
NO.7019/2011 ON THE FILE OF THE 23 RD ADDITIONAL SMALL
CAUSES JUDGE, 21ST ACMM, COURT OF SMALL CAUSES, MACT,
BANGALORE,    ALLOWING     THE   CLAIM   PETITION   FOR
COMPENSATION      AND    SEEKING     ENHANCEMENT     OF
COMPENSATION.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:      HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA

                      ORAL JUDGMENT

1. In this appeal, the petitioner has challenged the

judgment and award dated 05.11.2012 passed in

M.V.C.No.7019/2011 by the XXI A.C.M.M. and XXIII

A.S.C.J., Bengaluru ('the Tribunal' for short).

2. For the sake of convenience, the rank of the parties

shall be referred to as per their status before the Tribunal.

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3. Brief facts of the case are, on 04.07.2011, while the

petitioner was standing on the left side of K.G. Nagar Main

Road, the rider of scooter bearing No.KA-01:ES:2471 hit

against the petitioner. Due to which, she sustained injuries

to her right leg. After taking treatment at Shekar Hospital,

Amar Nursing Home and then at KIMS Hospital,

approached the Tribunal for grant of compensation of

Rs.6,00,000/-. The claim was opposed by the insurance

company. The Tribunal after considering the evidence and

on hearing both the parties, by impugned judgment

awarded the following compensation:-

01. Loss of income on account of Rs. 2,10,000/- disability

02. Pain & Suffering Rs. 50,000/-

03. Medical expenses Rs. 20,000/-

04. Transportation, special diet and Rs. 20,000/- attendant charges

05. Loss of income during laid up Rs. 15,000/-

period Total Rs. 3,15,000/-

The award of the Tribunal is satisfied by the insurance

company. Pleading inadequacy and seeking enhancement

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of compensation, the petitioner has filed this appeal on

various grounds.

4. Heard Smt. Sreevidya G.R., learned counsel for

Sri T.N. Vishwanath, learned counsel for petitioner and

Sri D. Vijay Kumar, learned counsel for respondent No.1.

5. It is contended by learned counsel for the petitioner

that the petitioner is a 'Tailor' by profession and she has

suffered fracture on her right leg which has affected her

earning capacity. The Doctor has been examined as P.W.2,

who has spoken about whole body disability suffered by

petitioner at 21.55%. If the whole body disability is

considered as functional disability, it affects the whole

body to the extent of more than 50% and the Tribunal did

not consider the same and considered the disability to

lower limb at 25%. It is also contended that the

compensation assessed by the Tribunal towards incidental

expenses is inadequate and no compensation is awarded

towards loss of amenities and discomfort and so also

future medical expenses and sought for enhancement.

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6. Per contra, learned counsel for the insurance

company has contended that the injury sustained by the

petitioner will not affect the earning capacity, as there is

no proof to the effect that the petitioner is a 'Tailor' by

profession. The Tribunal has considered this aspect and

rightly awarded the compensation. The limb disability

assessed by the Doctor is 43.1% and if 1/3rd is considered,

the disability will not come to 25% as taken by the

Tribunal which is on the higher side and it has to be

reduced to 1/3rd. There is no evidence to the effect that

the petitioner requires future medical treatment and the

Tribunal has awarded just compensation in the facts and

circumstances of the case and supported the impugned

judgment.

7. I have given my anxious consideration to the

arguments advanced by learned counsel for both the

parties and perused the material on record.

8. The accident in question is not in dispute and liability

on the part of insurance company is admitted. The medical

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records show that the petitioner has suffered tenderness

around medial condyle of right tibia. P.W.2 is an

Orthopedic Surgeon, who has stated that the petitioner

has suffered limb disability to the extent of 43.1% and

whole body disability at 21.55%. The medical evidence is

persuasive, so far as limb disability is concerned and the

Tribunal has considered the functional disability and it

does not required any interference. Therefore, the

functional disability is taken at 25%.

9. The inpatient records show that the petitioner

was in hospital for a period of 10 days from 04.07.2011 to

13.07.2011 and she has spent huge money towards

treatment and incidental expenses. The medial records

show that there is need for removal of implant. But, the

Tribunal did not consider the future medical expenses and

no compensation is assessed. The Tribunal, not awarded

compensation under loss of amenities and discomfort, the

petitioner being a lady, a nominal amount has to be

assessed towards loss of amenities and discomfort.

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10. The accident is of the year 2011 and the

petitioner has not produced any proof with regard to her

monthly income. Hence, she has to be treated as a person

with no proof of income and her notional income has to be

taken at Rs.6,500/- per month. The petitioner would have

laid up for a minimum period of four months for her

treatment. Therefore, loss of income during laid up period

for four months comes to Rs.26,000/- (6,500 x 4).

11. The Tribunal assessed Rs.50,000/- towards pain

and suffering and Rs.20,000/- towards medical expenses and

the same are kept intact. The incidental expenses assessed

at Rs.20,000/- by the Tribunal is on the higher side and it is

assessed at Rs.10,000/-. Loss of amenities and discomfort is

assessed at Rs.40,000/- and future medical expenses at

Rs.20,000/-. The petitioner was aged 42 years at the time

of accident, multiplier applicable is '14', taking the income at

Rs.6,500/- per month, disability at 25%, loss of income on

account of disability works out to Rs.2,73,000/- (Rs.6,500 x

12 x 14 x 25 / 100) as against Rs.2,10,000/- assessed by

the Tribunal.

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12. Hence, the petitioner is entitled to

compensation as follows:-

1. Pain and suffering Rs. 50,000/-

2. Medical expenses Rs. 20,000/-

3. Loss of income during laid up Rs. 26,000/-

period

4. Transportation, diet and Rs. 10,000/-

attendant charges

5. Loss of amenities and discomfort Rs. 40,000/-

6. Future medical expenses Rs. 20,000/-

7. Loss of income on account of Rs. 2,73,000/-

disability Total Rs. 4,39,000/-

       Less compensation                        Rs.        3,15,000/-
       awarded by the Tribunal
       Enhanced compensation                    Rs.    1,24,000/-

It is the just compensation the petitioner is entitled

to in the facts and circumstances of the case. Hence

appeal merits consideration, in the result, the following :-

ORDER

(i) The appeal is allowed in part.

(ii) The impugned judgment and award is modified.

(iii) The petitioner would be entitled to enhanced compensation of Rs.1,24,000/- together with interest at 6% p.a. from the date of petition till deposit,

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excluding interest on future medical expenses of Rs.20,000/-.