Karnataka High Court

Sri B Venkatesh Reddy vs Smt Namitha K on 31 July, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                              NC: 2024:KHC:30319
                                                            MFA No. 1078 of 2018




                           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. 1078 OF 2018 (MV)


                      BETWEEN:

                      SRI B VENKATESH REDDY
                      S/O BHADRA REDDY
                      AGED ABOUT 55 YEARS
                      R/AT NARAYANA GHATTA VILLAGE
                      MUTHANALLUR POST, ANEKAL POST
                      BANGALORE-99.
                                                                    ...APPELLANT
                      (BY SMT. SUGUNA R REDDY., ADVOCATE)

                      AND:

                      1.    SMT NAMITHA K
                            W/O LATE DEEPAK
                            MAJOR IN AGE
Digitally signed by         R/AT NO.27/1, NANDIDURGA ROAD
HEMALATHA A                 M M ROAD, MUNIMARAPPA GARDEN
Location: HIGH
COURT OF                    BANGALORE-560046.
KARNATAKA
                      2.    THE MANAGER
                            ICICI LOMBARD GEENRAL INS. CO.LTD.,
                            2ND FLOOR, SVR COMPLEX
                            MADIWALA, HOSUR MAIN ROAD
                            BANGALORE-560068.
                                                                  ...RESPONDENTS
                      (BY SRI. B C SHIVANNE GOWDA., ADVOCATE FOR R2:
                          NOTICE TO R1 IS SERVED AND UNREPRESENTED)
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                                                 NC: 2024:KHC:30319
                                              MFA No. 1078 of 2018




       THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:21.09.2016
PASSED IN MVC NO.3189/2015 ON THE FILE OF MEMBER, PRL.
MACT    &    CHIEF     JUDGE,         COURT    OF   SMALL      CAUSES
BENGALURU, PARTLY 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 H.T. NARENDRA PRASAD


                       ORAL JUDGMENT

1. This appeal under Section 173(1) of Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act') has been

filed by the claimant being aggrieved by the judgment

dated 21.09.2016 passed by MACT, Bengaluru in MVC

No.3189/2015.

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

stated are that on 12.04.2015 at about 09.00 a.m., the

claimant was traveling in Car bearing Registration

No.KA.51/MB.7724 and while proceeding so, when

NC: 2024:KHC:30319

reached near Manjunatha Petrol Bunk, Bypass Road,

NH75, BM Road, Dandiganhalli, Channarayapatna, at that

time, a driver of the Car bearing Registration

No.KA.04/MG.693 drove the same and dashed against 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 163A of

the Act, seeking compensation. It was pleaded that he

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

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

before the Tribunal and was placed ex-parte.

NC: 2024:KHC:30319

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 Dr.B.Ramesh was

examined as PW-2, and got exhibited documents namely

Ex.P1 to Ex.P12. 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.1,43,732/-

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

Insurance Company to deposit the compensation amount

along with interest. Being aggrieved, the present appeal

has been filed.

6. The learned counsel for the claimant has raised the

following contentions:

NC: 2024:KHC:30319

a) Firstly, due to the accident, the claimant sustained

grievous injuries. He underdone surgery. The doctor in his

evidence, has deposed that the claimant suffered from

permanent physical disability of 48% to left lower limb and

24% to the whole body. The Tribunal undervalued the

claimant's whole-body disability at 16%.

b) Lastly, due to the accident, the claimant has

sustained grievous injuries and he has undergone surgery.

He was treated as inpatient for a period of 49 days. He

spent more than Rs.3,21,342/- for medical expenses and

also produced medical bills at Ex.P9 and Ex.P10. But the

Tribunal considering that the claim petition is filed under

Section 163A of the Act has granted compensation of

Rs.15,000/-, which is on the lower side. In support of her

contention, she has relied upon the Division Bench

decision of this Court in the case of REGIONAL MANAGER,

NEW INDIA ASSURANCE COMPANY LIMITED VS. VIJAY

BALSHIRAM WALUNJ AND ORS. (ILR 2012 KAR 335) and

contended that in special circumstances, this Court has

deviate from the structure formula and granted

NC: 2024:KHC:30319

compensation for medical expenses, which spent by the

claimant. Hence, she sought for enhancement of

compensation.

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 claimant examined the doctor as PW-2. In

his evidence, he deposed that the claimant suffered from a

permanent physical disability of 48% to left lower limb. To

assess the whole body disability, the Tribunal has rightly

taken 1/3rd of the limb disability and assessed the whole

body disability at 16%.

b) Secondly, as per Second Schedule of Section 163A

the Act, the maximum compensation payable under the

'medical expenses' is Rs.15,000/-. Therefore, the Tribunal

has rightly awarded the said compensation. The facts of

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the present case is not similar to the case, which relied by

the learned counsel for the petitioner in the case of 'VIJAY

BALSHIRAM' (supra) and in that matter, the Court has not

granted any compensation under that head but the matter

was remitted back to the Tribunal for fresh consideration.

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 and

original records.

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

injuries in the road traffic accident occurred on 12.04.2015

due to rash and negligent driving of the offending vehicle

by its driver.

10. As per wound certificate, the claimant has sustained

fracture dislocation of left hip, abrasion right shoulder,

abrasion right wrist. The doctor in his evidence has stated

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that the claimant suffered from permanent physical

disability of 48% to left lower limb and 24% to the whole

body. Therefore, taking into consideration the deposition

of the doctor and injuries mentioned in the wound

certificate, the Tribunal has rightly taken the whole body

disability at 16%.

11. In respect of 'medical expenses' is concerned, it is

not in dispute that due to the accidental injury, the

claimant undergone surgery. He was inpatient in the

hospital for the period of 49 days. The claimant claims that

he spent more than Rs.3,21,342/- for medical expenses.

To prove the same, he produced Exs.P9 and 10, original

medical bills. As per Second Schedule, the maximum

compensation to be awarded under the head of 'medical

expenses' is Rs.15,000/- and therefore, the Tribunal has

awarded the said compensation. However, the Division

Bench of this Court in the case of 'VIJAY BALSHIRAM'

(supra) has held that in appropriate cases, the Court can

deviate and award excess compensation. Paragraph

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Nos.14 and 15 of the said decision is relevant and same is

extracted hereunder:

14. So far as point No.2 is concerned, under the structured formula, the court is empowered to award only Rs.15,000/- as compensation under the head medical expenditure under Section 163-A of the Motor Vehicles Act. The Honourable Supreme Court in Sapna's case cited supra had an occasion to consider the said provision and after considering the said provision in detail their Lordships have held that in appropriate cases, the Court can deviate and award excess compensation. Therefore, what is required to be considered in this case is whether the Court can deviate from the structured formula to consider the case of the claimants under the head medical expenditure in excess of Rs.15,000/-.

15. It is not in dispute that Dinesh sustained grievous injuries in a road traffic accident occurred on 21-1-2000 and he succumbed to injuries on 20-

5-2005 nearly after 5 years. The evidence on record discloses that he was under continuous treatment from the date of accident till his death and he died due to the acci- dental injuries. He was an ordinary employee and he was admitted to one of the best hospitals in Bangalore wherein, the claimants were forced to spend more than Rs. 3,50,000/- towards medical expenditure only.

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NC: 2024:KHC:30319

When the income of the injured was only Rs. 2,400/- p.m, is it possible for him or to his family members to spend more than Rs. 3,50,000/- towards treatment. Therefore, it is a fit case where the Court has to deviate from the structured formula. Considering the case of the claimants, we feel that the compensation awarded by the Tribunal towards medical expenditure is lesser than the amount spent towards medical expenses. In this background, we are of the view that point No. 2 has to be answered in favour of the claimants."

12. In view of the said decision of the Division Bench of

this Court and considering the evidence of the claimant

and medical bills produced by the claimant, I am of the

opinion that the claimant is entitled for compensation of

Rs.3,00,000/- under the head of 'medical expenses' as

against Rs.15,000/- awarded by the Tribunal. The

compensation awarded by the Tribunal under other heads

is just and reasonable.

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NC: 2024:KHC:30319

13. 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                   5,000          5,000

     Medical expenses                     15,000       3,00,000

     Food, nourishment,                   40,000         40,000
     conveyance and
     attendant charges

     Loss of income during                13,332         13,332
     laid up period

     Loss of income on                    70,400         70,400
     account of disability

                    Total               1,43,732      4,28,732

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