Karnataka High Court

The Manager vs Smt. Aneesabanu on 31 July, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                          MFA No. 8624 of 2019
                                                      C/W MFA No. 7814 of 2019



                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 31ST DAY OF JULY, 2024

                                              BEFORE
                           THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                      MISCELLANEOUS FIRST APPEAL NO. 8624 OF 2019 (MV)
                                               C/W
                      MISCELLANEOUS FIRST APPEAL NO. 7814 OF 2019(MV)


                      IN MFA 8624/2019
                      BETWEEN:
                      SMT ANEESABANU
                      W/O. RIZWAN AHAMED
                      AGED ABOUT 44 YEARS
                      R/O. NO.3, 922/A, 2ND CROSS
                      3RD FLOOR, NORTHERN BANGALORE
                      BANGALORE-560032
                                                                    ...APPELLANT
                      (BY SRI. SREENIVASAN M Y.,ADVOCATE)

                      AND:
Digitally signed by   1. ROYAL RODRIGUES
HEMALATHA A              (L) VALERIAN RODRIGUES
Location: HIGH           NO.2-78/5(9), FLAT NO.S-1
COURT OF
KARNATAKA                CARMEL VIEW, MAROLI
                         KULSHEKAR, MANGALORE-575001.

                      2.    THE MANAGER
                            THE ORIENTAL INSURANCE CO LTD.,
                            NEW MUSLIM HOSTEL COMPLEX
                            OPP FIRE BRIGADE, 1ST MAIN
                            SARASWATHIPURAM, MYSORE-570005
                                                                 ...RESPONDENTS
                      (BY SRI.H C VRUSHABENDRAIAH .,ADVOCATE FOR R2:
                      NOTICE TO R1 IS DISPENSED WITH
                      V/O DATED: 01.04.2022)
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                                       NC: 2024:KHC:30318
                                    MFA No. 8624 of 2019
                                C/W MFA No. 7814 of 2019



     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:29.04.2019,
PASSED IN MVC NO.190/2018,      ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER, MACT,
SRIRANGAPATANA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA 7814/2019
BETWEEN:
THE MANAGER
THE ORIENTAL INSURANCE CO LTD.,
NEW MUSLIM HOSTEL COMPLEX
OPP FIRE BRIGADE, 1ST MAIN
SARASWATHIPURAM, MYSORE-570005

AND ALSO
THE ORIENTAL INSURANCE CO. LTD.,
44/45, RESIDENCY ROAD
LEO SHOPPING COMPLEX
BANGALORE-560 025.
BY ITS REGIONAL OFFICER
                                            ... APPELLANT
(BY SRI. H C VRUSHABENDRAIAH, ADVOCATE )
AND:


1.   SMT ANEESABANU
     W/O. RIZWAN AHAMED
     AGED ABOUT 44 YEARS
     R/O. NO.3, 922/A, 2ND CROSS
     3RD FLOOR, NORTHERN BANGALORE
     BANGALORE-560032.

2.   ROYDEN RODRIGUES
     (L) VALERIAN RODRIGUES
     NO.2-78/5(9), FLAT NO.S-1
     CARMEL VIEW, MAROLI
     KULSHEKAR, MANGALORE-575001.
                                        ... RESPONDENTS
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                                        NC: 2024:KHC:30318
                                     MFA No. 8624 of 2019
                                 C/W MFA No. 7814 of 2019



(BY SRI. SREENIVASAN M.Y, ADVOCATE FOR R1:
NOTICE TO R2 IS SERVED AND UNREPRESENTED)


     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINSTTHE JUDGMENT AND AWARD DATED: 29.04.2019
PASSED IN MVC NO. 190/2018 ON THE FILE OF THE PRL,.
SENIOR CIVIL JDUGE AND MEMBER MACT, SRIRANGAPATNA,
AWARDING    COMPENSATION     OF   RS.13,72,000/- WITH
INTEREST AT 9% P.A FROM THE DATE OF PETITION TILL
DATE OF DEPOSIT.

    THESE APPEALS, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:   HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

                   ORAL JUDGMENT

1. MFA No.8624/2019 is filed by the claimant and MFA

No.7814/2019 is filed by the Insurance Company under

Section 173(1) of Motor Vehicles Act, 1988 (hereinafter

referred to as 'the Act') being aggrieved by the judgment

dated 29.04.2019 passed by the Senior Civil Judge &

Member, MACT, Srirangapatana in MVC No.190/2018.

2. Facts giving rise to the filing of the appeals briefly

stated are that on 31.12.2017 at about 08.30 a.m., the

claimant was proceeding in Car bearing Registration

No.KA-02-M-5490 and the said vehicle was driven by her

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husband in a slow and cautious manner and when they

reached near Gananguru Village, at that time, the driver of

the lorry bearing Registration No.KA-19-AA-8464 drover

the same in a rash and negligent manner and suddenly

taken the vehicle on the right side of the road and dashed

to the claimant's car. As a result of the aforesaid accident,

the claimant sustained grievous injuries and was

hospitalized.

3. The claimant filed a petition under Section 166 of the

Act, seeking compensation. It was pleaded that she spent

significant amount towards medical expenses, conveyance

charges and other related costs. It was further pleaded

that the accident occurred solely on account of rash and

negligent driving of the offending vehicle by its driver.

4. Upon service of notice, the respondent No.2

appeared through counsel and filed written statement

denying the averments made in the claim petition. The

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respondent No.1, despite service of notice, did not appear

before the Tribunal and was placed ex-parte.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter, recorded

the evidence. The claimant, in order to prove the case,

examined himself as PW-1 and another witness was

examined as PW-2 and Dr.Vinayak and Dr.Girishchandra R

were examined as CW-1 and CW-2, respectively, and got

exhibited documents namely Ex.P1 to Ex.P12 and Ex.C1 to

Ex.C18. On behalf of the respondents, one witness was

examined as RW-1 and got exhibited a document namely

Ex.R1. The Claims Tribunal, by the impugned judgment,

inter alia, held that the accident took place on account of

rash and negligent driving of the offending vehicle by its

driver, as a result of which, the claimant sustained

injuries. The Tribunal further held that the claimant is

entitled to a compensation of Rs.13,72,000/- along with

interest at the rate of 9% p.a. and directed the Insurance

Company to deposit the compensation amount along with

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interest. Being aggrieved, the present appeals have been

filed.

6. The learned counsel for the claimant has raised the

following contentions:

a) Firstly, the Tribunal erred in assuming the monthly

income of the claimant as Rs.8,000/-, despite evidence

showing she earned Rs.19,000/- per month by working as

a Teacher.

b) Secondly, due to accidental injuries, the claimant

suffered grievous injuries. The claimant has examined the

doctors as CW-1 and CW-2. CW-1 is the Neuro Surgeon,

in his evidence, he has stated that the claimant has

suffered severe head injury and she has suffered disability

of 62.5% to the whole body. On the other hand, CW-2,

who is the Orthopedic Surgeon, has stated in his evidence

that the claimant has suffered fracture of picondylar of

tibial plateau and suffered disability of 40% to particular

limb. But the Tribunal has taken the whole body disability

at 53%, which is on the lower side.

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c) Thirdly, due to the accident, the claimant has

sustained grievous injuries. She was treated as inpatient

for a period of 43 days. Considering the same, the

compensation awarded by the Tribunal under the heads of

'loss of amenities', 'pain and sufferings' and other

incidental expenses are on the lower side.

d) Fourthly, due to the accidental injuries, the claimant

suffered 40% disability to the particular limb and 62% to

whole body disability. She has suffered severe head injury.

Even after being discharged from the hospital, she was not

in a position to discharge her regular work. She suffered a

lot of pain during treatment. She has not been able to

continue her job as a teacher. Therefore, the claimant is

entitled to future prospects. In support of his contention,

he has relied upon the judgment of the Hon'ble Apex Court

in the case of PAPPU DEO YADAV vs. NARESH KUMAR

AND OTHERS' 2020 SCC Online SC 752 and 'ERUDHAYA

PRIYA vs. STATE EXPRESS TRANSPORT CORPORATION

LTD. 2020' SCC Online SC 601.

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e) Fifthly, the doctor, CW-2 in his evidence has deposed

that the claimant needs one more surgery for removal of

implant and cost of the said surgery is about

Rs.1,00,000/-. But the compensation of Rs.25,000/-

awarded by the Tribunal for 'future medical expenses' is

on the lower side.

With the above contentions, learned counsel for the

appellant sought to allow the appeal.

7. On the other hand, the learned counsel for the

Insurance Company has raised the following counter-

contentions:

a) Firstly, the assertion of claimant that she was

earning Rs.19,000/- per month, remains unsubstantiated

due to lack of documentary evidence. In the absence of

proof of income, the Tribunal has assessed the income of

the claimant notionally.

b) Secondly, even though CW-1 has stated that the

claimant has suffered severe head injury and suffered

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62.5% disability to the whole body and CW-2 has stated in

his evidence that the claimant has suffered fracture of

picondylar of tibial plateau and suffered 40% disability to

particular limb, the claimant nonetheless, appeared before

the Court, entered the witness box, gave evidence, and

satisfactorily answered all questions posed by the learned

counsel for the Insurance Company. However, the

Tribunal's assessment of whole body disability at 53% is

on the higher side..

c) Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the overall compensation awarded by the

Tribunal is on higher side.

d) Lastly, in light of the Division Bench decision of this

Court in the case of Ms.Joyeeta Bose and others -v-

Venkateshan.V and others (MFA 5896/2018 and

connected matters disposed of on 24.8.2020), the

rate of interest awarded by the Tribunal at 9% p.a. on the

compensation amount appears excessive.

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NC: 2024:KHC:30318

With the above contentions, learned counsel for the

Insurance Company sought to dismiss the appeal.

8. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal.

9. It is not in dispute that the claimant has sustained

injuries in the road traffic accident occurred on 31.12.2017

due to rash and negligent driving of the offending vehicle

by its driver.

10. As per wound certificate, the claimant has sustained

severe head injury and also sustained fracture of

bicondylar of tibial plateau. CW-1 is the Neuro Surgeon, in

his evidence, he has stated that the claimant has suffered

severe head injury and suffered disability of 62.5% to the

whole body. On the other hand, CW-2, who is the

Orthopedic Surgeon, has stated in his evidence that the

claimant has suffered fracture of picondylar of tibial

plateau and 40% disability to particular limb. However, in

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NC: 2024:KHC:30318

this case, the claimant herself filed the claim petition and

testified as PW-1, answering all questions posed by the

counsel for Insurance Company during cross-examination.

The Tribunal also noted that PW-1 responded satisfactorily

to the counsel's questions. Considering the finding given

by the Tribunal, as well as the testimony of CW-1 and CW-

2 and the injuries documented in the wound certificate, I

am of the opinion that the whole body disability is

assessed at 40%.

11. The claimant alleges that she was earning a monthly

income of Rs.19,000/- as a Teacher. However, due to the

accident, she has been unable to continue her job, which

will inevitably impact her future prospects. Therefore, in

view of law laid down by the Hon'ble Apex Court in the

case of PAPPU DEO YADAV vs. NARESH KUMAR AND

OTHERS' 2020 SCC Online SC 752 and 'ERUDHAYA

PRIYA, the claimant is entitled for future prospects. Since

the claimant has not produced any documents to

substantiate her claim, in view of guidelines issued by the

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Karnataka State Legal Services Authority, for accidents

occurred in the year 2017, notional income shall be taken

at Rs.11,000/- p.m. In view of law laid down by the

Hon'ble Supreme Court in the case of NATIONAL

INSURANCE CO. LTD. -v- PRANAY SETHI AND

OTHERS [AIR 2017 SC 5157], an addition of 25% of the

income towards 'future prospects' when the deceased was

aged between 40 to 50 years. Thus the monthly income of

the claimant is comes to Rs.13,750/-.

12. The claimant is aged about 43 years at the time of

the accident and multiplier applicable to her age group is

'14'. Thus, the claimant is entitled for compensation of

Rs.9,24,000/- (Rs.13,750*12*14*40%) on account of

'loss of future income'.

13. The nature of injuries indicates that the claimant

must have been under rest and treatment for a period of 4

months. Consequently, the claimant is entitled for

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NC: 2024:KHC:30318

compensation of Rs.44,000/- (Rs.11,000*4 months)

under the head 'loss of income during laid up period'.

14. Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He was

hospitalized as an inpatient for more than 14 days in the

hospital. Considering the prolonged pain during treatment

as well as the permanent disability certified by the doctor,

I am inclined to enhance the compensation awarded by

the Tribunal under the head of 'loss of amenities' from

Rs.25,000/- to Rs.40,000/-.

15. Although the evidence of CW-2 suggests that the

claimant requires approximately Rs.1.00,000/- for removal

of implants, the claimant has not provided any supporting

documents. Considering the nature of the injuries and the

evidence of the doctor, the Tribunal has rightly awarded

the compensation of Rs.25,000/- under the head of 'future

medical expenses'.

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16. Considering the nature of injuries, the compensation

awarded by the Tribunal under other heads is just and

reasonable.

17. Thus, the claimant is entitled to the following

compensation:

                              As awarded         As awarded
                                by the             by this
     Compensation under        Tribunal             Court
       different Heads           (Rs.)              (Rs.)

 Pain and sufferings                   50,000         50,000

 Medical expenses                     5,14,000      5,14,000

 Food, nourishment,                    14,000         14,000
 conveyance and
 attendant charges

 Loss of income during                 32,000         44,000
 laid up period

 Loss of amenities                     25,000         40,000

 Loss of future income                7,12,000      9,24,000

 Future medical expenses               25,000         25,000

                 Total           13,72,000        16,11,000

18. In the result, the following order is passed: