Karnataka High Court
Smt. C Devika vs Liberty General Insurance Ltd on 5 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:19545
MFA No. 1252 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 1252 OF 2022 (MV-I)
BETWEEN:
SMT. C. DEVIKA
S/O BHASKAR REDDY,
AGED ABOUT 36 YEARS,
R/AT NO.25/4, GOVINDASHETTYPALYA,
ELECTRONIC CITY,
BENGALURU - 560 100.
...APPELLANT
(BY SRI. THIPPESWAMY B C., ADVOCATE)
AND:
1. LIBERTY GENERAL INSURANCE LTD.,
NO.1, ALYSSA, 1ST FLOOR, REAR PORTION,
OLD NO.28, NEW NO.23,
RICHMOND ROAD, RICHMOND TOWN,
BENGALURU - 560 025.
Digitally signed by (POLICY NO.201250020118702481600000
VEDAVATHI A K
Location: High VALID FROM 19-07-2018 TO 18-07-2019)
Court of Karnataka
2. MR. BALAKRISHNA D G
S/O GOPALAKRISHNA D. MAJOR,
R/O DODDAHATTI, GANJALAGUNTE (P),
KASABA HOBLI, MADHUGIRI TALUK,
TUMKUR DISTRICT,
MADHUGIRI - 572 132.
...RESPONDENTS
(BY SRI. PRADEEP B., ADVOCATE FOR R1;
VIDE ORDER DATED 26/03/2024, NOTICE TO R2 IS
DISPENSED WITH)
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MFA No. 1252 of 2022
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED.05.10.2021 IN MVC NO.3788/2019 ON THE
FILE OF THE XVIII ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, MEMBER, MACT, BENGALURU CITY, (SCCH-4),
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
This appeal is filed by the appellant/claimant under
Section 173(1) of Motor Vehicles Act, 1988 challenging the
judgment and award dated 05.10.2021 passed in MVC
No.3788/2019, by XVIII Additional Judge, Court of Small
Causes Members, MACT, Bengaluru City, for enhancing the
compensation.
2. Heard the arguments of the learned counsel for
the appellant and learned counsel for respondent No.1-
Insurance Company. Respondent No.2 remained ex-parte.
3. 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 the petition before the Tribunal under Section 166 of
Motor Vehicles Act (for short 'M.V. Act') for claiming
compensation of Rs.10,00,000/- for injuries sustained by
her in road traffic accident on 23.05.2019 at about 1.30
p.m. It is alleged by the petitioner, that when she was on
the left side of the Hosur service road, Govindashetty
Palya, a motorcycle bearing No.KA-06-HC-2725 came from
north to south direction, which came from the wrong
direction and due to rash and negligent manner of the
rider, dashed to the petitioner. Due to which, she has
fallen down and sustained grievous injuries. She was
shifted to the Springleaf Healthcare Pvt., Ltd., hospital and
was treated as an inpatient for two days. Subsequently,
she has undergone various treatments and has spent more
than Rs.20,000/- towards medical expenses. Hence, due
to the injury, she has suffered disability. She is earning
Rs.20,000/- per month. Hence, prayed for granting
Rs.10,00,000/- as compensation and seeking for the
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enhancing the compensation already granted by the
Tribunal.
5. On issuance of summons, respondent No.2
remained ex-parte. Respondent No.1-insurance company
has appeared and filed statement of objection by taking
the contention that there is no rash and negligent riding.
The rider of the vehicle do not have any driving license.
Further, denied the age and income of the appellant and
prayed for dismissing the appeal.
6. On the basis of pleadings, the tribunal framed
the following issues for consideration:
1. Whether 1. Whether the petitioner proves
that, the was sustained injuries due to
RTA alleged to have been occurred on
23.05.2019 at about 1.30 p.m. Hosur
Service road, near G.S.Palya Cross,
Konappana Agrahara, Electronic City,
Bengaluru due to the rash and negli-
gence riding of the rider of the motor
cycle bearing Reg.No.KA-06-HC-2725?
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2. Whether the petitioner is entitled for
compensation? If so, what amount and
from whom?
3. What order or award?
7. On behalf of the petitioner, the petitioner herself
was examined as PW1 and got marked 16 documents and
also got examined PW2/hospital authorities and
PW3/Doctor. The respondent No.1, except filing written
statement, cross-examination of PW1, no defense was
adduced. After hearing the arguments, the tribunal
considering the case, answered issue No.1 in affirmative,
issue No.2 in partly affirmative and granted global
compensation of Rs.80,000/- vide impugned judgment
which is under challenge.
8. Learned counsel for the petitioner has contended
that the tribunal committed an error in disbelieving the
evidence of PW1, PW2 and PW3. The doctor gave the
disability certificate of 27% to the right upper limb and
14% to the whole body. However, the tribunal discarded
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the evidence without giving reasons. The petitioner is
earning Rs.20,000/- per month and had suffered disability
due to previous injury. Therefore, prayed for setting aside
the award passed by the Tribunal and enhancing the
compensation.
9. Per contra learned counsel for the respondent
supported the judgment and award passed by the tribunal
and contended that the dislocation of the shoulder was
already properly located and there is no damage or
permanent disability. Hence, prayed for dismissal of the
appeal.
10. Having heard the arguments of the learned
counsel for petitioner, learned counsel for respondent
No.1-insurance company, the following point would arise
for my consideration:-
"1. Whether Tribunal has committed an
error in awarding global compensation, in
spite of the petitioner suffering 27 % of
disability towards limb and 14% towards full
body?
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2. Whether, the judgment and award of
the Tribunal requires interference, if so, what
is the compensation entitled for?
11. On perusal of the records, it is not in dispute
that the accident has occurred due to the rash and
negligent riding of the rider of the motorcycle. The
respondent has also not lead in any evidence or defense,
except filing written statement or objections, by denying
the liability and by taking various contentions. On the
other hand, the petitioner was able to prove the accident
and injury sustained by her by oral as well as documentary
evidence. The Ex.P.7 is wound certificate issued by
hospital. Ex.P.8 is discharge summary. Ex.P.9 is medical
bills for having spent more than Rs.20,000/- towards
medical expenses. Ex.P.12 is MLC extract. Ex.P.13 is
case sheet and Ex.P.14 is X-ray report. Ex.P.15 is OPD
record and Ex.P.16 is the X-ray. On perusal of the
records, especially the evidence of PW3/Doctor who
corroborated the evidence of PW1 the appellant, where
she has suffered fracture of dislocation of the right
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shoulder and she has undergone treatment and X-rays
were taken reveals that she has suffered the dislocation of
the shoulder due to the accident. As per the evidence of
the doctor, she is suffering from 27% of disability towards
the right upper limb and 14% to the total body. Though,
the tribunal has considered that the dislocated shoulder
usually causes permanent damage, however, mere
admission made by the doctor that the dislocation may be
united or reunited, that cannot be considered as it is
properly united and the appellant is able to do all the
works including the household, as she was doing it before.
Once the part of the body or bones are dislocated or
broken and even if it is united, there will be some
disability. Though the doctor stated disability is to the
whole body is of 14%, but instead of taking 1/3rd
disability to the whole body as assessed by the Doctor, the
Tribunal has not considered the same, at all. Therefore, I
am of the view, the tribunal committed an error in holding
that there is no dislocation and it is united and that there
is no disability. The reason arrived by the tribunal is not
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sufficient or not acceptable reasons for disbelieving the
evidence of PW1 to PW3, apart from the documents.
Therefore, I am of the view, finding of the tribunal
requires to be set aside. Though the petitioner suffered
from 27% of disability towards the right upper limb and
14% to the total body, the tribunal has not considered the
same. Therefore, it is held to be paid towards the
disability, 9% is considered towards whole body.
12. As regards to the income of the petitioner, she
has stated that she is earning Rs.20,000/- per month but
there are no documents produced. However, the notional
income chart of the Legal Services Authority prescribes the
income of Rs.14,000/- for the accident for the year 2019.
Accordingly, income is taken as Rs.14,000/-. The age of
the claimant was 37 years at the time of accident.
Therefore, the appropriate multiplier is "15" as per the
principles of law laid down in the case of Sarla Verma
and Others -Vs- Delhi Transport Corporation and
Another reported in AIR 2009 SCC 3104. Therefore,
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the compensation under the head "loss of future
earning capacity" is calculated and quantified as follows:
Rs.14,000/- x 12 x 15 x 9% = Rs.2,26,800/-
13. As regards to the "medical expenses", the
petitioner has paid bills which amounts to Rs.20,413/-.
Therefore, the said amount is entitled to be paid to the
appellant towards the medical expenses.
14. The petitioner was admitted in the hospital
only for two days and somebody would have taken care
and some amount towards food must be spent and also
towards the attender. Hence, the petitioner is entitled for
Rs.5,000/- towards "food and nourishment,
attendant and conveyance charges".
14. As regards, to the pain and suffering, the
petitioner suffered grievous injury as per the wound
certificate and was admitted to the hospital and
subsequently taken further treatment as outpatient.
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Hence, he is entitled for a sum of Rs.40,000/- towards
"pain and suffering".
15. Though learned counsel for the petitioner has
contended, the petitioner deserves towards loss of
amenities etc., but there is no proper records to show
there is any loss in the amenities. Hence, this court feels
she is not entitled for any enhancement of compensation
except loss of dependency, medical expenditure, food and
nourishment and pain and suffering.
19. Thus in all, this Court has awarded the
compensation under various heads as follows:
Particulars Amount
in Rs.
Pain and Suffering 40,000/-
Loss of earning capacity 2,26,8,00/-
Medical expenses and 20,413/-
other expenses
Food nourishment, and 5,000/-
transportation
Total 2,92,213/-
Rounded to 2,93,000/-
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Hence, the appellant-claimant is entitled for a total
enhanced compensation of Rs.2,93,000/- along with
interest as prayed for 6% p.a. as against already awarded
by the Tribunal.
20. Accordingly, I pass the following:
ORDER
i. Appeal allowed in part.
ii. The judgment and award dated 05.10.2021 passed in
MVC No.3788/2019 by XVIII Additional Judge, Court
of Small Causes Members, MACT, Bengaluru City is
modified;
iii. The claimant is entitled to a sum of Rs.2,93,000/-
as against Rs.80,000/-;
iv. The enhanced compensation amount shall be paid by
the respondent-Insurance Company with interest @
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6% per annum within a period of two months from
the date of receipt of a copy of this order;
v. Out of the enhanced compensation, Rs.1,00,000/- to
be deposited in any nationalized bank in the name of
petitioner for a period of 3 years and the remaining
shall be released in favour of the claimant within 2
months;
vi. The amount if any deposited shall be transmitted to
the Tribunal;
vii. 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
viii. Draw award accordingly.
Sd/-
JUDGE
AKV
CT:SK
