Karnataka High Court

Sathyaprema vs Ajay H R on 3 June, 2024

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                                                     NC: 2024:KHC:18809-DB
                                                     MFA No. 2205 of 2023



                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 3RD DAY OF JUNE, 2024

                                        PRESENT
                THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                                            AND
                          THE HON'BLE MS JUSTICE J.M.KHAZI
                            M.F.A NO.2205 OF 2023 (MV-I)
                BETWEEN:

                     SATHYAPREMA,
                     AGED ABOUT 51 YEARS,
                     W/O MURALEEKRISHNA,
                     R/AT NO.12, KALPAVRUKSHA,
                     KABEER MUTH ROAD,
                     SUNKENAHALLI,
                     BENGALURU - 560 019.
                                                              ...APPELLANT
                (BY SMT. AKSHAYA K, ADVOCATE FOR
                    SRI. PAVANA CHANDRA SHETTY H, ADVOCATE)

                AND:

Digitally       1.   AJAY H R
signed by            AGED ABOUT 30 YEARS,
REKHA R
Location:            S/O RAMAMOORTHI H.R,
High Court of        R/AT NO.314, 6TH MAIN ROAD,
Karnataka            B.S.K. 1ST STAGE, SHRINAGARA,
                     BANASHANKRI POST,
                     BANGALORE-560050.

                2.   THE DIVISIONAL MANAGER,
                     NATIONAL INSURANCE CO. LTD.,
                     UDUPI DIVISIONAL OFFICE,
                     UDUPI.
                                                       ...RESPONDENTS
                (BY SRI. JANARDHANA REDDY, ADVOCATE FOR R2;
                   NOTICE TO R1 IS DISPENSED WITH)
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                                            NC: 2024:KHC:18809-DB
                                            MFA No. 2205 of 2023



     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
01.10.2021 PASSED BY THE COURT OF THE SENIOR CIVIL
JUDGE AND ACJM AT KARKALA, UDUPI IN MVC NO.131/2020
TO THE EXTENT OF DISALLOWED CLAIM AND ALLOW THIS
APPEAL BY ENHANCING THE COMPENSATION, IN THE
INTEREST OF JUSTICE.

     THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
J.M.KHAZI J., DELIVERED THE FOLLOWING:

                           JUDGMENT

This appeal filed under Section 173 (1) of Motor

Vehicles Act, is by the petitioner seeking enhancement of

the compensation for the injury sustained by her in the

motor vehicle accident dated 13.07.2019.

2. For the sake of convenience, the parties are

referred to by their ranks before the Tribunal.

3. Facts: It is the case of the petitioner that on

13.07.2019 at 6-00 p.m, she was travelling as a

passenger in Toyota Innova car (For short 'Innova')

bearing registration No.KA-05-MU-1189 from

Dharmasthala towards Horanadu on Karkala-Kudremukha

Road. When they were near Otehalla area of Mala village,

Maruthi Alto 800 car bearing registration

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No.KA-04-MP-8584 (for short 'offending vehicle'), being

driven by its driver in a high speed, in a rash or negligent

manner came from the opposite side and dashed against

the Innova. As a result of the impact, petitioner sustained

grievous injuries. Despite prolonged treatment, she is not

completely cured. The injuries have resulted in permanent

partial disability affecting her earning capacity. As the

owner and insurer, respondents are jointly and severally

liable to pay the compensation and hence the petition.

4. Before the Tribunal, respondent No.1 has

remained ex-parte.

5. Respondent No.2 appeared and filed written

statement, admitting the coverage of the offending

vehicle, however, its liability was subject to the terms and

conditions of the policy. Respondent No.2 denied the age,

occupation, income, nature of the injury suffered and that

they resulted in permanent partial disability. At the time of

accident, the driver of the offending vehicle was not

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possessing a valid and effective driving license and has

sought for dismissal of the petition.

6. Based on the pleadings, the Tribunal framed

necessary issues.

7. In order to prove her case, petitioner examined

herself as PW-1 and got marked Ex.P1 to 22.

8. No witness was examined on behalf of

respondent No.2. However, Ex.C1 was marked through

PW-1.

9. Vide the impugned judgment and award, the

Tribunal granted compensation in a sum of Rs.2,73,726/-

with interest at 7% p.a. and directed respondent No.2 to

pay the same. The details of the compensation granted

are as under:

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Heads Amount In Rs.

Towards pain and sufferings 45,000

Towards Conveyance, Attendant 25,000 charges and nourishing food

Towards loss of income during laid 18,000 up period

Towards Medical expenses 1,35,726

Towards loss of amenities and 50,000 discomforts

TOTAL 2,73,726

10. Respondent have not challenged the impugned

judgment and award.

11. Not being satisfied with the quantum of

compensation, petitioner has come up with this appeal,

contending that having regard to the nature of the injury

sustained, the compensation granted under all the heads

is on the lower side, including the medical expenses. The

income of the petitioner ought to have been taken at

Rs.30,000/- p.m. and the laid of period should have been

considered as three months. The Tribunal has erred in not

granting any compensation under the head loss of future

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earnings and pray to allow the appeal and enhance the

compensation.

12. On other hand learned counsel representing

respondent No.2 supported the impugned judgment and

award and sought for dismissal of the appeal.

13. We have heard arguments of both sides and

perused the record.

14. Having regard to the fact that respondents have

not challenged the impugned judgment and award, it's

findings that accident occurred due to the rash or

negligent driving of the offending vehicle and in the

accident, petitioner sustained injuries and as owner and

insurer, respondents are jointly and severally liable has

attained finality.

15. In the petition, the petitioner has given her age

as 48 years which fact is not disputed by respondent No.2.

Based on the medical records also, the Tribunal is justified

in taking the age of the petitioner as 48 years and

consequently '13' multiplier considered by the Tribunal is

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correct. Even though the petitioner has claimed that she

was working as a ladies tailor and earning Rs.30,000/-

p.m, no evidence is produced to establish the said fact.

Therefore, the Tribunal is justified in considering her

income on notional basis. Since the accident is of the year

2019, based on the minimum wages, the notional income

ought to have been taken at Rs.14,000/- instead of

Rs.9,000/- taken by the Tribunal.

16. The petitioner has contended that due to the

accidental injuries, she suffered fracture and it resulted in

permanent partial disability. As per Ex.P7 petitioner

suffered communited fracture of left humerus (Arm bone).

She has relied upon disability certificate at Ex.P17,

according to which she has suffered 12.38% disability of

the upper limb. However, the petitioner did not examine

the Doctor who issued the disability certificate and

therefore the Tribunal has rightly held that petitioner has

not proved the certificate at Ex.P17.

17. Having regard to the nature of the injury

suffered, compensation granted in a sum of Rs.45,000/-

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under the head pain and suffering, Rs.50,000/- under the

head loss of amenities, Rs.25,000/- under the head

conveyance, attendant charges and nourishing food is just

and reasonable and it calls for no interference by this

Court. Similarly, based on the medical bills, the Tribunal

has rightly granted compensation in a sum of

Rs.1,35,726/-.

18. Since, the petitioner suffered fracture of right

humerus, it was reasonable to expect that petitioner was

under treatment for a period of three months and was

unable to pursue her daily routine. Therefore, she is

entitled for compensation under the head loss of income

during laid up period for three months instead of two

months. Therefore, at the rate of Rs.14,000/- p.m for a

period of three months, petitioner is entitled for

compensation in a sum of Rs.42,000/- instead of

Rs.18,000/- granted by the Tribunal.

19. Thus in all the petitioner is entitled for

compensation in a sum of Rs.2,97,726/- with interest at

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6% p.a on enhanced compensation as against

Rs.2,73,726/- granted by the Tribunal as details below:

Heads Amount granted Amount granted by the Tribunal by this Court In Rs. In Rs.

     Towards pain and                   45,000                45,000
     sufferings

     Towards Conveyance,                  25,000               25,000
     Attendant charges
     and nourishing food

     Towards loss of                      18,000               42,000
     income during laid up
     period

     Towards Medical                    1,35,726              1,35,726
     expenses

     Towards loss of                      50,000               50,000
     amenities and
     discomforts

              TOTAL                     2,73,726           2,97,726

20. To this extent, appeal deserves to be allowed

and accordingly, the following:

ORDER

(i) Appeal is allowed in part.


      (ii)    Petitioner is entitled for compensation in a

              sum      of   Rs.2,97,726/-           as   against

              Rs.2,73,726/-    granted      by     the   Tribunal
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together with interest at 6% p.a. on the

enhanced compensation.

(iii) Respondent No.2 being the insurer is

directed to pay the compensation together

with interest at 6% p.a on the enhanced

compensation from the date of petition till

realization (minus the amount already

paid/deposited if any) within a period of six

weeks from the date of this order.