Karnataka High Court

Nikhitha K vs Bharathi Axa General Ins Co Ltd on 1 July, 2024

Author: K.Natarajan

Bench: K.Natarajan

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                                                             NC: 2024:KHC:24611
                                                         MFA No. 6089 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. 6089 OF 2021 (MV-I)
                      BETWEEN:
                          NIKHITHA K
                          D/O LATE KESHAVAPPA K,
                          NOW AGED ABOUT 23 YEARS,
                          R/AT 2ND CROSS, GANGAMMA GUDI ROAD,
                          NEAR SRM TUITIONS, M V EXTENSION,
                          HOSAKOTE - 562 114.
                          NOTE: THE APPELLANT SUSTAINED SEVERE HEAD
                          INJURY HENCE REPRESENTED BY HER MOTHER
                          SMT. RUKMINI AS GUARDIAN)
                                                                ...APPELLANT
                      (BY SRI. RANGEGOWDA N R., ADVOCATE)
                      AND:
                      1. BHARATHI AXA GENERAL INS CO LTD.,
                         IST FLOOR, FERNS ICON,
                         SURVEY NO.28, DODDANEKKUNDI,
Digitally signed by      MARATHAHALLI RING ROAD,
VEDAVATHI A K
Location: High
                         BANGALORE - 560 037.
Court of Karnataka
                      2.    D. MOHANLAL
                            S/O DEVARAM,
                            AGED MAJOR,
                            SRI. KRISHNA SALES CORPORATION,
                            NO.30, 2ND CROSS, KANAKA NAGAR,
                             KEMPANNA GARDEN, PATTEGARPALYA,
                            BANGALORE - 560 072.
                                                                ...RESPONDENTS
                      (BY SRI. PRADEEP B., ADVOCATE FOR R1;
                          VIDE ORDER DATED:6/7/2023, NOTICE TO R2 IS
                          DISPENSED WITH)
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                                           NC: 2024:KHC:24611
                                        MFA No. 6089 of 2021




     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED.21.09.2021 PASSED IN MVC NO.4560/2017 ON
THE FILE OF THE II ADDITIONAL JUDGE, ACMM, COURT OF
SMALL CAUSES, BENGALURU, (SCCH-13), PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

Though this appeal is posted for Admission, with the

consent of the learned counsel for the parties, the same is

taken up for final disposal.

2. This appeal is filed by the claimant under Section 173

(1) of the Motor Vehicles Act, 1988, against the judgment and

award passed by II Additional Judge, ACMM, Court of Small

Causes, Bangalore, dated 21.09.2021 in M.V.C.No.4560/2017,

seeking enhancement of compensation.

3. Heard the arguments of the learned counsel for the

appellant and learned counsel for the respondent No.1-

insurance company.

NC: 2024:KHC:24611

4. The appellant herein was the petitioner and

respondent No.1-insurance company was respondent No.1

before the Tribunal. The rank of the parties before the Tribunal

is retained for the sake of convenience.

5. The case of the petitioner is that she filed the claim

petition under Section 161 of MV Act claiming compensation of

Rs.25 lakhs for the injuries sustained by her in a motor

accident that occurred on 22.07.2017. On the said date, at

about 9.45 a.m., when the petitioner was travelling as a pillion

rider on a scooter bearing registration No. KA-53-ES-6898,

from Hosakote towards K.R. Puram, after LANCO Tollgate, a

Renault Kwid Car bearing registration No.KA-02-MM-5008 came

in a high speed and rash and negligent manner and dashed

against the scooter, due to which the petitioner sustained

injuries to her head, left ankle, and fracture of talus left and

other parts of her body and therefore, she was admitted to the

hospital. The petitioner was a student at the time of the

accident and she was doing a part-time job. It was contended

that due to the accident, she cannot squat, cannot climb stairs

and walk on slope.

NC: 2024:KHC:24611

6. On issuance of summons, the respondent-Insurance

Company appeared and filed the statement of objections and

denied the accident, occupation, income and injuries sustained

by the petitioner.

7. Based upon the pleadings, the Tribunal framed the

following issues:

1. Whether the petitioner proves that she had sustained grievous injury in RTA on 22.07.2017 about 9.45 a.m., near LANCO Toll U turn, Kolara-Bengaluru NH-75 Road, Bengaluru District due to rash and negligent driving by the driver of Renault Kwid car bearing No.KA-02-MM-5008?

2. Whether the petitioner proves that he is entitled for the compensation as claimed? If so, to what extent and from whom ?

3. What order or award ?

8. To prove the case, the petitioner herself was

examined as P.W.2 and the doctor was examined as P.W.3 and

marked the documents as per Exhibits P-1 to P-17. The

respondents did not lead any evidence.

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9. After hearing the arguments, the Tribunal answered

Issue No.1 in the affirmative and Issue No. 2 partly in the

affirmative and granted the global compensation of

Rs.1,50,000/- together with interest at 6% p.a. from the date

of petition till realisation, which is under challenge in this

appeal.

10. Learned counsel for the appellant has contended that

the Tribunal has committed an error in not awarding the

compensation under the heads of medical expenses, future

medical expenses, pain and suffering, loss of amenities and loss

of earning capacity, food and nourishment, and it has blindly

granted the global compensation of Rs.1,50,000/-, which is not

correct.

11. Learned counsel for the respondent-Insurance

Company has supported the judgment and award passed by

the Tribunal.

12. Having heard the learned counsel appearing for the

parties, perused the records.

NC: 2024:KHC:24611

13. The accident that occurred on 22.07.2017 at about

9.45 am near Hosakote towards K.R. Puram, after LANCO

Tollgate, due to rash and negligent driving of the Kwid car

bearing registration No.KA-02-MM-5008, by its driver, is not in

dispute.

14. Now the question for consideration is, whether the

quantum of compensation granted by the Tribunal is correct or

not.

15. The records especially the medical bills provided by

the petitioner show that she was admitted in the hospital for 5

days, she got operated, the implants were inserted which were

not yet removed. She had produced the bills to prove that she

has spent Rs.79,102/- towards the medical expenses. However,

the Tribunal has blindly granted the compensation of

Rs.1,50,000/- which is not correct. Therefore, the

compensation requires to be enhanced.

NC: 2024:KHC:24611

16. The petitioner claimed that she suffered restriction in

the joint movements of left ankle and she is facing difficulty to

squat and climb stairs and walk. She has further claimed that

she was admitted in the hospital for 5 days and she had a gun

operation and also taken further treatments in various hospitals

and the surgery was done and nails were fixed on the ankle.

Therefore, the petitioner could have suffered pain and

suffering. Therefore, I propose to award Rs.25,000/- towards

pain and suffering.

17. The petitioner is said to be working in a private

company, earning Rs.8,000/- per month and she has also

stated that she is a student. Therefore, the Tribunal has taken

Rs.8,000/- per month as her income. The petitioner was

admitted in various hospitals for the purpose of treatment and

two months may be taken for laid up period. Therefore,

Rs.16,000/- (Rs.8,000/- x 2) is granted towards the income

during the laid up period.

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18. As regards the medical expenses, the petitioner has

incurred Rs.79,102/- as per exhibit 14. Therefore, she is

entitled for Rs.79,102/- towards medical expenses.

19. The petitioner got admitted in the hospital for 5 days

and she was operated. For that, she might have spent some

amount towards food and nourishment, conveyance, attendant

charges. Therefore, I Rs.10,000/- towards food and

nourishment, conveyance, attendant charges is awarded.

20. In respect of the loss of earning capacity, the doctor-

P.W.3 has stated that the petitioner-claimant is suffering the

disability of 20% to the limb and 10% to the whole body. As

per the evidence of the doctor, she has a restrictions in the

joint movement of ankle left and she is also complained of pain

and difficulty to squat and to climb stairs and walk on slope.

The x-ray produced reveals that the implants were inserted,

and therefore, definitely, the there is difficulty for the petitioner

in walking and sitting. Therefore, I propose to consider 7%

disability to the whole body. It is stated that the petitioner

was aged about 19 years as at the time of the accident. For

NC: 2024:KHC:24611

the said age, the proper multiplier applicable is 18. Thus,

taking the monthly income at Rs.8,000/-, disability at 7% and

multiplier of '18', the compensation towards loss of future

income on account of disability comes to Rs.1,20,963/-.

21. As regards the loss of amenities, as per the doctor,

the petitioner is suffering disability and she cannot squat, sit or

stand and cannot do her work. Such being the case, I propose

to award Rs.10,000/- towards loss of amenities and

Rs.20,000/- towards future medical expenses.

22. In all, the petitioner would be entitled for the

modified compensation as under:

Sl.

                Heads of compensation                Amount in Rs.
No.

 1     Pain and suffering                                25,000-00

 2     Loss of income during laid up period              16,000-00

 3     Medical expenses                                  79,102-00

 4     Food and nourishment expenses                     10,000-00

 5     Loss of future income on account of             1,20,963-00
       disability

 6     Loss of amenities                                 10,000-00

       Future medical expenses                           20,000-00

                      Total                            2,81,065-00
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                                           NC: 2024:KHC:24611

23. Accordingly, I proceed to pass the following :

ORDER

[i] The appeal filed by the appellant stands

allowed in part;

(ii) The impugned judgment and award

dated 27.09.2018 passed in MVC No.4560/2017 by

the II Additional Judge, ACMM, Court of Small

Causes, Bangalore, is hereby modified;

(iii) The claimant would be entitled to a sum

of Rs.2,81,065/- as against Rs.1,50,000/- awarded

by the Tribunal;

(iv) The respondent insurance company shall

pay the enhanced compensation with interest at 6%

per annum within a period of 60 days from the date

of the receipt of copy of this order;