Karnataka High Court
Smt.Rathnamma vs Jayakumar D on 1 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:24472
MFA No. 5612 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 5612 OF 2021 (MV-I)
BETWEEN:
SMT.RATHNAMMA
W/O SOMESH,
AGED ABOUT 33 YEARS,
R/AT BOPPANAHALLI VILLAGE,
H. MATAKERE POST, KASABA HOBLI,
H. D. KOTE TALUK - 571 114.
...APPELLANT
(BY SRI. SUMA K., ADVOCATE)
AND:
1. JAYAKUMAR D
S/O BENJAMIN,
R/AT NO.2254/1, GENERAL HOSPITAL CAMPUS QTRS,
H.D. KOTE POST, TOWN AND TALUK - 571 114.
Digitally signed by 2. UNITED INDIA INSURANCE CO. LTD
VEDAVATHI A K DIVISIONAL OFFICE (T P HUB),
Location: High BALLAL CIRCLE, CHAMARAJAPURAM,
Court of Karnataka
MYSURU - 570 004.
...RESPONDENTS
(BY SRI. SYED AKBAR PASHA, ADVOCATE FOR R1;
SRI. K.N. SRINIVASA, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED.13.09.2019 PASSED IN MVC NO.790/2017 ON
THE FILE OF THE PRL. SMALL CAUSES, SENIOR CIVIL JUDGE,
MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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MFA No. 5612 of 2021
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/petitioner under
Section 173(1) of Motor Vehicles Act, 1988 (for short
hereinafter referred to as MV Act) challenging the
judgment and award dated 13.09.2019 passed in
MVC No.790/2017 passed by the Prl. Small Causes and
Senior Civil Judge, MACT, Mysuru (for short hereinafter
referred to as 'Tribunal') for seeking enhancement of
compensation.
2. Heard the arguments of the learned counsel for
the appellant and learned counsel for respondent Nos.2
and 3.
3. The appellant was petitioner and the
respondents were respondents before the Trial Court. The
status of the parties before the Tribunal is retained for the
sake of convenience.
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4. The case of the petitioner is that, the
petitioner filed petition for claiming compensation for the
injury sustained by her in road traffic accident on
26.09.2016. It is alleged that on 26.09.2016 at about
5.30 p.m., after finishing her ginger cultivating work in
Annur Hosahalli village of HD Kote was returning to her
village in auto near Ranganna's land, Hebbal Shantipur
Village, at that time, the driver of the car bearing
registration No.KA-09-N-0484 who driven the car in a rash
and negligent manner was coming in high speed and
dashed to the auto rickshaw. Due to which she fell down
and sustained injury. She was shifted to HD Kote hospital,
thereafter Mysuru K.R. Hospital treated as inpatient for
long time. She has spent a lot of amount on medical
expenses and due to the injury, the right arm became
totally disabled and she cannot lift and do any work or any
other agricultural work. Therefore, she has lost the
income. Hence, she filed claim petition for compensation
of Rs.26,45,000/-.
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5. On receipt of the summons, the respondent No.1,
owner of the vehicle appeared and filed statement of
objections by denying rash and negligent driving and also
denied age, occupation and income of the petitioner and
contended that the vehicle was insured with the insurance
company and the policy was in force. The
insurer/respondent No.2 also taken similar contention and
prayed for dismissing the petition.
6. On the basis of pleadings, the tribunal framed
the following issues for consideration:
1. Whether the Petitioner proves
that on 26.9.2016 at about 5.30
P.M. near Ranganna land of
Shantipura village at H.D. Kote
Taluk, when she was traveling
in auto-rickshaw bearing
registration No. KA-45-8734, at
that time the driver of car
bearing registration No. ΚΑ-09-
N-0484 drove it in a high speed
with rash and negligent manner
and dashed, due to that she
sustained injuries?
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2. Whether the Petitioner is
entitled for compensation? If so,
at what rate and from whom?
3. What Order or award?
7. To prove the case, the petitioner herself was
examined as P.W.1. and also examined another witness,
the Doctor as PW2. They got marked documents from
Exs.P1 to P19. The respondents have not lead any
evidence. After hearing the arguments, the tribunal
answered issue No.1 in affirmative and issue No.2 partly in
affirmative. Accordingly, granted compensation of
Rs.9,36,000/- at the rate of 6% p.a., interest p.a., which
is as under;
1. Towards Medical expenses and Rs.1,04,000-00
nourishment
2. Towards loss of income during laid Rs.42,000-00
up period and rest
3. Towards injury pain and sufferings Rs.1,00,000-00
4. Towards loss of future income Rs.4,89,600-00
5. Towards loss of amenities of life Rs.1,00,000-00
6. Future medical expenses Rs.1,00,000-00
Total Rs.9,35,600-00
Rounded to Rs.9,36,000-00
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8. Being aggrieved by the quantum of
compensation, the claimant is before this court.
9. The learned counsel for the petitioner has
contended that the tribunal has not properly appreciated
the evidence on record and evidence of PW1, especially
PW2, the doctors who stated that the right arm of the
petitioner was totally disabled, she was unable to do any
coolie work. As such it is 100% disability and tribunal
considered only 40% against evidence on record. The
income was also considered as Rs.6,000/- per month,
which is not correct. As per the notional income
recognized by the Karnataka State Legal Services
Authority, an income of Rs.9,500/- p.m. to be considered
for the accidents occurred during 2016. The petitioner
also entitled for future prospectus, loss of amenities, loss
of food, nourishment etc., but the tribunal awarded only
meagre amount. She was admitted to the hospital for
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almost 5 months. Therefore, prayed for enhancing the
compensation.
10. Per contra, learned counsel for respondents
supported the judgment of tribunal and contended that
the tribunal in the absence of very documents has rightly
considered Rs.6,000/- per month and even the multiplier
considered was at 17 for the age group of 34 to 35 years.
Therefore, prayed for setting aside the same.
11. Having heard the arguments, perused the
records, the point that arises for consideration is;
Whether the tribunal committed error
in taking salary at Rs.6,000/- as income and
40% disability, which requires for
enhancement, if so, what extent?
12. As regards to the rash and negligent driving of
the car of the driver there is no dispute and respondents
also not filed any additional evidence. Therefore, only
quantum of compensation requires to be considered by
this court. The petitioner said to be admitted in the
hospital immediately after the accident dated 26.09.2016
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till 29.12.2016, almost more than 3 months.
Subsequently, once again admitted to hospital on
10.1.2017 till 20.1.2017 for 11 days. Thereafter on
13.02.2017 till 23.3.2017 once again she was admitted to
the hospital for 14 days. On perusal of the same, she was
treated in the hospital for almost 5 months as inpatient.
13. The tribunal as regards to the pain and suffering
has awarded Rs.1 lakh which is just and proper and no
need to enhance.
14. However, regarding loss of income during laid up
period and rest, the tribunal has awarded 7 months at the
rate of Rs.6,000/- p.m. As per the notional income
recognized by the Karnataka State Legal Services
Authority, an income of Rs.9,500/- p.m. to be considered
for the accidents occurred during 2016. Therefore, taking
Rs.6,000/- p.m. for calculation of laid up period is very
meagre and hence liable to be enhanced. Hence,
Rs.9,500/-p.m., is considered as notional income. If
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Rs.9,500/- p.m. is considered, the loss of income for laid
up period is as below,
Rs.9,500/- p.m. x 7 months is Rs.66,500/- loss
of income during the laid up period.
15. The tribunal granted Rs.1,04,000/- towards
the medical expenses and nourishment, but the medical
expenses itself is Rs.94,000/-. Therefore, Rs.94,000/-
medical expenses is retained as it is, but the food,
nourishment, attendant charges etc., requires to be
considered as the claimant is almost admitted for 5
months as inpatient in the hospital. Therefore, the
question of granting of Rs.10,000/- is very meagre.
Therefore, considering the facts and circumstances of the
case, as she was admitted almost for thrice, she could
have spent lot of amount towards the transportation
charges, food and nourishment, therefore, I propose to
award Rs.30,000/- towards food nourishment, attendant
and conveyance charges.
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16. As regards to the future medical expenses, loss
of amenities tribunal awarded Rs.1 lakh and the same is
retained as it is.
17. As regards to the loss of future income, the
tribunal had considered Rs.6,000/- and the same is
revised as Rs.9,500/-. The age of the petitioner is stated
as 30 years, therefore, the tribunal had considered 17
multiplier. However, the respondent brought to the notice
of this court that the age of the injured was 34 to 35
years. Therefore, proper multiplier shall be 16 instead of
17 considered by the tribunal. Learned counsel also
contended that disability of the petitioner was 85% stated
by the doctor as the right hand was totally paralysed,
disfigured and has taken treatment for more than 5
months involving skin grafting, and has undergone plastic
surgery etc. However, the petitioner was unable to use her
hand and her hand has become totally disabled and she
cannot work even the household work in the house. The
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tribunal taken only 40% disability to the whole body,
which is not correct.
18. As regards to the earning capacity of the
petitioner totally she cannot do any work on the right
hand. Though, the tribunal considered 40 % disability, but
the petitioner though she cannot do any physical work
through right hand and the doctor has opined 85 % of the
disability, as she cannot do any work. Such being the
case, reducing the disability to 40% is not correct. The
functional disability of the petitioner become totally
disabled. The petitioner not adduced any evidence of any
of the person, to show she was actually working as coolie
in any of the field or examined any employer to prove the
contention. Such being the case, taking national income is
correct. Therefore, when the disability is 85% of this court
also looking to the facts and circumstances of the case has
to consider entire 85% as disability of the petitioner for
future loss of prospectus.
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19. Though it is stated already held that there is no
evidence. However, I propose to take 85% disability for
loss of future income.
Rs.9500 x 12 x 16 x 85% = Rs.15,50,400/-
20. As regards to the future medical expenses, the
tribunal awarded Rs.1 lakh and the same is retained as it
is.
21. The components awarded by this court are as
below,
1. Towards Medical expenses and Rs.94,000-00
nourishment
2. Towards Food nourishment etc., Rs.30,000-00
3. Towards loss of income during Rs.66,500-00
laid up period and rest
4. Towards injury pain and Rs.1,00,000-00
suffering
5. Towards loss of future Rs.15,50,400-00
income
6. Towards loss of amenities of life Rs.1,00,000-00
7. Future medical expenses Rs.1,00,000-00
Total Rs.20,40,900-00
23. Accordingly, I pass the following:
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ORDER
i. The appeal is allowed in part.
ii. The judgment of the tribunal dated 13.09.2019
passed in MVC No.790/2017 passed by the Prl.
Court of Small Causes and Senior Civil Judge,
Mysuru, is hereby modified.
iii. The claimant is entitled to a total compensation for a
sum of Rs.20,40,900/- at the rate of 6% p.a.,
instead of Rs.9,35,600/- granted by the tribunal
iv. The enhanced compensation amount shall be paid by
the respondent-Insurance Company with interest @
6% per annum, excluding the future medical
expenses, within a period of two months from the
date of receipt of a copy of this order;
v. Out of the total amount, Rs.10 lakhs shall be
deposited in the Fixed Deposit in the name of the
petitioner for 10 years in any of the Nationalized
Bank and the remaining amount with interest shall
be released to the petitioner;
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vi. 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;
and
vii. Draw award accordingly.
Sd/-
JUDGE
AKV_List No.: 1 Sl No.: 39_CT:SK
