Karnataka High Court
Smt.Hemavathi @ Hema vs Sri.Somashekar M.R on 7 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:19919
MFA No. 3984 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 3984 OF 2021 (MV-I)
BETWEEN:
SMT.HEMAVATHI @ HEMA
W/O RENUKAIAH,
AGED ABOUT 38 YEARS,
R/O INDIRANAGAR,
DODDABIDARAKALLU,
GUNGONDANAHALLI MAIN ROAD,
NAGASANDRA POST, NAGASANDRA POST,
NAGASANDRA, BENGALURU NORTH,
BENGALURU.
...APPELLANT
(BY SRI. SATHISHA T., ADVOCATE)
AND:
Digitally signed by
VEDAVATHI A K
1. SRI. SOMASHEKAR M.R
Location: High
Court of
Karnataka
S/O RAMAIAH,
AGED ABOUT 42 YEARS,
R/AT NO.197/1, INDIRANAGAR,
NEAR SIDDARTH SCHOOL,
DODDABIDARAKALLY,
BENGALURU.
2. UNITED INDIA INSURANCE
COMPANY LTD.,
NO.119, SYLVESTRA ARCADE,
EAST PARK ROAD, 11TH CROSS,
-2-
NC: 2024:KHC:19919
MFA No. 3984 of 2021
MALLESHWARAM, BENGALURU - 03.
SERVICE ADDRESS:
UNITED INDIA INSURANCE
COMPANY LTD.,
JAYADEVA COMPLEX,
NEAR TOWN HALL CIRCLE,
B. H. ROAD, TUMAKURU,
NOW REPRESENTED BY:
THE REGIONAL MANAGER
UNITED INDIA INSURANCE
COMPANY LTD.,
REGIONAL OFFICE, NO. A-1 5TH FLOOR,
KRUSHI BHAVAN,
NEAR HUDSON CIRCLE,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI. B. C. SEETHARAMA RAO, ADVOCATE FOR R2;
VIDE ORDER DATED:25/07/23, NOTICE TO R1 IS
DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 01.04.2021 PASSED IN MVC NO.178/2019 ON
THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE AND MACT,
MADHUGIRI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:19919
MFA No. 3984 of 2021
JUDGMENT
This appeal is filed by the appellant-claimant under
Section 173(1) of the Motor Vehicles Act, 1973 (for short 'M.V.
Act') challenging the judgment and award dated 01.04.2021
passed in MVC No.178/2019 passed by the IV Additional
District Judge and M.A.C.T. Tumakuru, sitting at Madhugiri
seeking enhancement of compensation.
2. Heard the arguments of learned counsel for the
parties.
3. The rank of the parties before the Tribunal is
retained for the sake of convenience.
4. The case of the petitioner is that the petitioner filed
claim petition under Section 166 of the M.V. Act claiming
compensation of Rs.30,00,000/- for the injury sustained by her
in the road traffic accident dated 18.09.2018. It is alleged by
the petitioner that that on the said day at 4.00 p.m. when she
was proceeding in her two wheeler motorcycle bearing
registration No.KA-04-H.H.-0603. At that time, a Toyota Etios
Car bearing registration No.KA-04-D-8132 came in a rash and
negligent manner from behind and dashed to the vehicle of the
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petitioner, due to which, she sustained multiple injuries and
admitted to the hospital at Tumkur. Later she was shifted to
NIMHANS hospital as well as Victoria hospital and treated as
inpatient for more than 38 days. The petitioner was earning
Rs.15,000/- per month from doing Tailoring work and was
maintaining her family and now she is not in a position to do
the said work. She has spent more amount towards medical
expense. She lost the earning capacity. Therefore, prayed for
awarding compensation of Rs.30,00,000/-.
5. Respondent No.1 placed ex-parte. In response to
the summons, respondent No.2 filed statement of objections by
denying each and every petition averments including age,
income and occupation of the petitioner, occurrence and mode
of accident due to rash and negligent driving of an offending
car by its driver, the injuries sustained by the petitioner and
permanent disability sustained by the petitioner and prayed for
dismissing the appeal.
6. Based upon the pleadings, the tribunal has framed
following issues:
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"1. Whether the petitioner proves that an accident is
occurred on 18-09-2018 at about 4-00 pm near
Obaladevarahalli, Koratagere Taluk, Tumkur
Dist., due to rash and negligent driving of Toyota
Etios car bearing Registration No.KA-04-D-8132
by its driver and she has sustained injuries in
the said accident?
2. Is petitioner entitled for compensation? If so?
How much and from whom?
3. To what order?"
7. In order to prove the case of the claimants, the
petitioner herself examined as P.W.1, also examined the doctor
as P.W.3 and examined the treating doctor as C.W.1 and got
marked 95 documents as per Exs.P.1 to P.95. The respondent
did not lead any evidence. After hearing the arguments on both
sides, the Tribunal has allowed the petition in part by awarding
compensation of Rs.4,05,000/- on various heads which are as
under:
1 Pain and suffering Rs.18,000-00
2 Medical expenses Rs.14,584-00
3 Food, Nourishment and conveyance Rs.5,000-00
Attendant Charges Rs.10,000-00
4 Loss of income during laid up period Rs.18,000-00
charges
Loss of future earnings Rs.3,24,000-00
5 Loss of amenities Rs.15,000-00
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6 Future medical expenses -----------
Total Rs.4,04,584-00
Rounded off to Rs.4,05,000-00
8. Being aggrieved by the compensation awarded by
the Tribunal, the claimants are before this Court.
9. The learned counsel for the petitioner has
contended that the findings and award passed by the Tribunal
is very meager. Even though the petitioner is working as a
tailor and earning Rs.15,000/- per month, but the Tribunal has
considered Rs.9,000/- as notional income. As per the notional
income recognized by the Karnataka State Legal Services
Authority, an income of Rs.12,500/- is to be considered for the
accident occurred in the year 2018 and therefore, prayed for
enhancing the income of the deceased. The learned counsel
further contended that the Tribunal awarded very meager
amount in all the heads, therefore, prayed for enhancing the
same.
10. Per contra, learned counsel for the respondent
supported the judgment and award passed by the Tribunal.
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11. Having heard the arguments and on perusal of the
records, the points that arise for my consideration are:
"Whether the appellant is entitled for the
enhancement of the compensation?" If so,
what award/amount?
12. On perusal of the records, it reveals the accident
dated 18.09.2018 was due to rash and negligent act of the
driver of the Toyota Etios Car is not in dispute. The petitioner
and her son has sustained injuries in the accident and the
petitioner was admitted in various hospitals that is also not in
dispute. Therefore, the only consideration arise for this court
regarding the computation of compensation by the Tribunal or
awarding compensation in various heads which is under
challenge.
13. Now considering the award passed by the Tribunal
which reveals, the tribunal awarded Rs.18,000/- towards pain
and suffering. The injury sustained by the petitioner is fracture
of upper limb and she was treated in the hospital for almost 38
days and considering the same, awarding Rs.18,000/- for pain
suffering is very meager and hence, this court proposed to
enhance the pain and suffering to Rs.30,000/-, medical
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expenses is Rs.14,584/- and the same is retained. Regarding
food, nourishment and conveyance charges and attendant
charges, the Tribunal has awarded Rs.5,000/- and Rs.10,000/-
respectively, which are very meager and the petitioner
admitted in the hospital for 38 days as an inpatient, definitely
they could have spent lot of amount for food, nourishment and
attendant charges. Therefore, proposed to award Rs.40,000/-
towards the food, nourishment and attendant charges and
other incidental charges including transport. As regards to the
laid up period, the Tribunal has considered only two months
and assessed the notional income as Rs.9,000/- per month and
accordingly, granted Rs.18,000/- towards laid up period.
However, the said income is very meagre and therefore, I
proposed to enhance the said notional income from Rs.9,000/-
to Rs.12,500 per month as in the Lokadalath, they are
considering the monthly income of the injured/deceased based
on the year of accident. As such Rs.12,500/- is the income to
be considered for the accident occurred in the year 2018 as the
petitioner suffered injury and treated as inpatient for 38 days
more than a month. Definitely, he could have taken the laid-up
period at least for more than three months, therefore proposed
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to award Rs.12,500 x 3 = Rs.37,500/-. As regards to the loss
of amenities is Rs.15,000/- is awarded by the Tribunal, the
same is retained. As regards to the loss of earning capacity, the
Tribunal has considered 20% towards the disability to the
whole body. Though the doctor has stated 100%, but the limb
is not totally amputated hence, it cannot be considered as
100% of disability. The disability to the limb considered by the
tribunal is 20% is appropriated. The learned counsel has relied
upon the judgment of the Division Bench of High Court where
the Division Bench has considered 20% of disability to the
whole body. Therefore, I proposed to consider 20% of the
disability to the whole body. If income of the petitioner is
considered as Rs.12,500 x 12 x 15 multiplier x 20% =
4,50,000/-, that would be the future loss due tox disability.
Though the petitioner counsel has contended that 40% shall be
awarded for the future prospects and relied upon the judgment
of the Division Bench, but looking to the facts and
circumstances of the case, the petitioner not proved that she is
disability and totally she lost the income and there is no
progress in the employment or work, such being the case, the
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petitioner is not entitled for any future loss of prospects as this
court considered the loss of disability towards future income.
14. Thus in all, this Court has awarded the
compensation under the various heads as follows:
1 Pain and suffering Rs.30,000-00
2 Medical expenses Rs.14,584-00
3 Food, Nourishment and conveyance Rs.40,000-00
4 Loss of income during laid up period Rs.37,500-00
charges
5 Loss of amenities Rs.15,000-00
6 Loss of future income due to disability Rs.4,50,000-00
Total Rs.5,87,084 -00
Rounded off to
Rs.5,87,100-00
Hence, the appellant-claimant is entitled for a total
enhanced compensation of Rs.5,87,100/- as against
Rs.4,05,000/- awarded by the Tribunal.
15. Accordingly, I pass the following:
ORDER
(i) The appeal is allowed in part.
(ii) The judgment and award dated 01.04.2021 in MVC
No.178/2019 passed by the Tribunal is modified;
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(iii) The claimant is entitled to a sum of
Rs.5,87,100/- as against Rs.4,05,000/-;
(iv) The enhanced compensation amount shall be paid
by the respondent No.2-Insurance Company with
interest @ 6% per annum till realization;
(v) Out of the award amount, 40% shall be deposited
and remaining shall be released to the petitioner;
(vi) The enhanced compensation shall be released to
the petitioner.
(vii) Registry is directed to return the Trial Court records
to the Tribunal, along with the certified copy of the
order passed by this Court forthwith without any
delay;
(ix) Draw award accordingly.
Sd/-
JUDGE
GBB
CT:SK
