Karnataka High Court

Miss Sangeetha vs M/S. The Oriental Insurance Co. Ltd on 5 February, 2024

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                                                     NC: 2024:KHC:4819
                                                  MFA No. 3546 of 2013




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 5TH DAY OF FEBRUARY, 2024

                                      BEFORE
                      THE HON'BLE MR JUSTICE C.M. POONACHA
             MISCELLANEOUS FIRST APPEAL NO. 3546 OF 2013 (MV)
             BETWEEN:

                   MISS. SANGEETHA,
                   D/O NARAYANA RAO,
                   AGED ABOUT 20 YEARS,
                   R/AT NO.46/1,2ND CROSS,
                   MUNESHWARA TEMPLE,
                   VITTAL NAGAR, CHAMARAJPET,
                   BANGALORE - 560 018.
                                                          ...APPELLANT
             (BY SMT. SREEVIDYA G.K., ADVOCATE FOR
                 SRI. T.N. VISWANATHA, ADVOCATE)

             AND:

             1.    M/S. THE ORIENTAL INSURANCE CO.LTD.,
                   MOTOR CLAIMS HUB, NO. 44-45,
                   LEO SHOPPING COMPLEX,
Digitally
                   RESIDENCY ROAD CROSS,
signed by          BANGALORE - 560 025.
BHARATHI S
Location:
HIGH COURT   2.    MR. B.K. VISHWANATH SHARMA,
OF
KARNATAKA          S/O B.N. KODANDARAMAIAH,
                   MAJOR, R/AT NO.45, 1ST FLOOR,
                   2ND "B" CROSS,VIDYAPEETA EXTENSION,
                   THYAGARAJA NAGAR,
                   BANGALORE - 560 028.
                                                      ...RESPONDENTS
             (BY SRI. O. MAHESH, ADVOCATE FOR R1;
                 VIDE ORDER DATED 03.07.2015, NOTICE TO R2 IS
                 DISPENSED WITH)

                  THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
             JUDGMENT AND AWARD DATED:14.9.2012 PASSED IN MVC
             NO.6433/2011 ON THE FILE OF THE 18TH ADDITIONAL JUDGE,
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                                                             NC: 2024:KHC:4819
                                                        MFA No. 3546 of 2013




COURT OF SMALL CAUSES, MEMBER, MACT-4, BANGALORE,
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

The present appeal is filed by claimant challenging the

judgment and award dated 14.09.2012 passed in

MVC.No.6433/2011 by the MACT, Court of Small Causes,

Bengaluru1 (SCCH-04), seeking for enhancement of

compensation.

2. For the sake of convenience, the parties herein

are referred as per their ranking before the Tribunal.

3. It is the case of the claimant that on 21.09.2011

when she was travelling on a TVS scooty moped, a car came

in a rash and negligent manner and hit the TVS scooty

moped, resulting the accident in question, wherein the

claimant sustained grievous injuries. Claiming compensation

for the same, the claim petition was filed arraying the insurer

respectively.

Hereinafter referred as 'Tribunal'

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4. The claimant examined herself as PW-2 and a Doctor

as PW-3. Exs.P-1 to P-33 were marked as evidence. No oral

or documentary evidence was adduced on behalf of the

respondents.

5. The Tribunal by its judgment and award dated

14.09.2012 passed in MVC.No.6433/2011 has awarded

compensation of `1,59,300/- together with interest at the

rate of 6% per annum and directed that the Respondent

No.1 - insurer shall deposit the compensation awarded.

Being aggrieved, the present appeal is filed by the claimant

seeking for enhancement. The judgment and award of the

Tribunal in respect of negligence and liability is not under

challenge. Hence, the only question that is required to be

adjudicated in the present appeal is with regard to the

enhancement of compensation.

6. It is forthcoming that the claimant was aged about

19 years as on the date of accident and she was pursuing

her II year B.Com. Due to the accident, she has failed in her

3rd Semester examination and the accident has affected her

future.

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7. Learned counsel for the Appellant contends that the

Division Bench of this Court in the case of Chetana and ors.

V. Babuji M and ors.2 considering case of death of 17 year

old has held that a person between the age of 14 to 18 is an

adolescent and below the age of 14 is considered as child

and hence, submits that income of the injured will have to be

assessed and compensation to be awarded accordingly.

8. Opposing the same, learned counsel for the

insurer submits that the claimant is admittedly a student and

having not deposed regarding her avocation and income.

Hence, the question of awarding compensation towards loss

of earning capacity does not arise.

9. It is forthcoming from the aforementioned that the

claimant was admittedly an student, who was pursuing II

year B.Com and she has deposed that due to the accident,

she has failed in 3rd semester examination.

10. It is forthcoming from the evidence of doctor -

PW-3, wound certificate (Ex.P.17) and the discharge

summary (Ex.P.18) that the claimant sustained fracture of

M.F.A. No.102268/2019 DD.13.11.2020( High Court of Karnataka Dharwad Bench)

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both bones left leg middle and lower 1/3rd junction, fracture

medial malleolus left leg, and there is shortening of left lower

limb by 1 c.m. The claimant was treated as an inpatient for

a period from 21.09.2011 to 03.10.2011 i.e., for 12 days.

The doctor has deposed that the claimant has sustained

disability to the whole body to of an extent of 21.7%.

11. It is evident from the aforementioned that the

claimant was on the verge of completing her education but

as a result of the accident, she has sustained grievous

injuries and also permanent disability which would definitely

affect her life in future. Hence, it is just and proper that

adequate compensation be awarded towards loss of disability

by assessing adequate income and by adopting the multiplier

method and the percentage of disability.

12. Hence, the income of the claimant is assessed as

notional income as per the chart being followed for

settlement of claims by the Lok-Adalath conducted by the

Legal Service Authority wherein, as on the date of the

accident, the notional income is assessed at `6,500/- per

month.

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13. The claimant is admittedly aged about 19 years.

Hence, the appropriate multiplier will be '18'. The Doctor

has assessed full body disability at 21.07%. There is no

much cross-examination regarding the fact that there is

fracture medial malleolus left leg and there is shortening of

left lower limb by 1 c.m. Hence, the disability is assessed as

22% .

14. In view of the aforementioned, the compensation is

re-assessed as follows:-

14.1. The Tribunal has awarded compensation of

`30,000/- towards pain and suffering. Having regard to the

nature of injures sustained, the same be re-assessed as

`40,000/-.

14.2. The Tribunal has awarded `15,000/- towards loss

of amenities. Having regard to the nature of injuries

sustained and the resultant disability, it is just and proper

that the same be re-assessed at `25,000/-.

14.3. The Tribunal has not awarded any compensation

towards food nourishment and attendant charges. Having

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regard to the nature of injuries sustained and the period of

treatment it is just and proper that the same be assessed at

`25,000/-.

14.4. The Tribunal has awarded a sum of ` 44,000/-

towards medical expenses which is just and proper.

14.5. The Tribunal has awarded a sum of `10,000/-

towards future medical expenses. The doctor has deposed

that the claimant will have to undergo another surgery for

removal of the implants, which will cost about `35,000/- to

`40,000/-. Hence, the future medical expenses is re-

assessed as `15,000/-.

14.6. The Tribunal has awarded `60,000/- towards

permanent disability. The same is re-assessed as (6,500 x

12 x 18 x 22%) = `3,08,800/-.

14.7. The claimant is unmarried. Hence due to the

disabilities sustained, it is just and proper that a sum of

`30,000/- must be awarded towards loss of marriage cost.

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15. Having regard to the aforementioned, the total

compensation under various heads is re-assessed as follows:

Sl.No. Heads Amount awarded by Amount awarded the Tribunal (`) by this Court (`)

1. Pain and 30,000.00 40,000 .00 sufferings

2. Loss of amenities 15,000 .00 25,000 .00 & Happiness

3. Food and .00 25,000 .00 Attendant charges

4. Medical and 44,000 .00 44,000 .00 incidental charges

5. Loss of Income 60,000 .00 3,08,800 .00

6. Future medical 10,000 .00 15,000 .00 expenses

7. Loss of marriage .00 30,000 .00 prospects

Total 1,59,000 .00 4,87,800 .00

16. Hence, the claimant is entitled for enhanced

compensation of `3,28,800/- (`4,87,800 - `1,59,000)

rounded off as ` 3,29,000/- together with interest at 6% p.a.

17. In view of the aforementioned, the following:

ORDER

i) The appeal is allowed in part;

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ii) The judgment and award dated 14.09.2012 passed in MVC.No.6433/2011 by the MACT, Court of Small Causes, Bengaluru, is modified to the extent stated herein. In all other respects, the judgment and award of the Tribunal remains unaltered;

iii) The appellant/claimant is entitled to enhanced compensation of `3,29,000/- with interest at 6% per annum from the date of petition till its realization in addition to the compensation awarded by the Tribunal;

iv) Respondent No.1 - Insurance Company is directed to deposit the said compensation together with accrued interest within a period of eight weeks from the date of receipt of a copy of this judgment;

v) After deposit, the enhanced compensation with accrued interest shall be disbursed to the appellant/claimant in terms of the award of the Tribunal;

vi) The Registry to draw the modified award accordingly.

vii) No costs.

Sd/-

JUDGE