Karnataka High Court

Smt. Mahadevamma vs Tata Aig General Insurance Company on 26 June, 2024

Author: K.Natarajan

Bench: K.Natarajan

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                                                            NC: 2024:KHC:24158
                                                          MFA No. 1720 of 2022




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 26TH DAY OF JUNE, 2024

                                               BEFORE
                                THE HON'BLE MR JUSTICE K.NATARAJAN
                      MISCELLANEOUS FIRST APPEAL NO. 1720 OF 2022 (MV-I)

                      BETWEEN:
                         SMT. MAHADEVAMMA
                         W/O VARADARAJU,
                         AGED ABOUT 41 YEARS,
                         R/AT NO.433, 6TH CROSS,
                         PRAGATHIPURA, BANASHANKARI,
                         BENGALURU - 560 070.
                                                                   ...APPELLANT
                      (BY SRI. ANANTHARAMA C., ADVOCATE)
                      AND:
                      1. TATA AIG GENERAL INSURANCE COMPANY
                          KHANIJA BHAVAN,
                          RACE COURSE ROAD, BANGALORE - 560 001.

                      2.    SRI. PAPANNA C
                            S/O CHINNAPPA,
                            NO.73, 3RD CROSS, CHOLUR PALYA,
Digitally signed by
VEDAVATHI A K               MAGADI ROAD, BANGALORE - 560 023.
Location: High
Court of Karnataka                                            ...RESPONDENTS
                      (BY SRI. S.V.HEGDE MULKHAND, ADVOCATE FOR R1;
                          VIDE ORDER DATED:23/1/2024, NOTICE TO R2 IS
                          DISPENSED WITH)
                           THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
                      SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
                      AWARD DATED 27.09.2018 PASSED IN MVC NO.7281/2016
                      ON THE FILE OF THE    MEMBER, MACT, XVI ADDITIONAL
                      JUDGE, COURT OF SMALL CAUSES, BENGALURU CITY (SCCH-
                      14), PARTLY ALLOWING THE CLAIM PETITION FOR
                      COMPENSATION     AND   SEEKING    ENHANCEMENT    OF
                      COMPENSATION.
                              -2-
                                          NC: 2024:KHC:24158
                                       MFA No. 1720 of 2022




     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

This appeal is filed by the claimant in MVC No.7281/2016

against the judgment and award dated 27.09.2018 passed by

the Member, Motor Accident Claims Tribunal XVI Additional

Judge, Court of Small Causes, Bangalore, seeking enhancement

of compensation.

2. The appellant was the petitioner-claimant and the

respondent is the respondent before the Tribunal. The parties

to the appeal shall be referred to as per their ranking before

the Tribunal.

3. Heard the learned counsels appearing for the parties.

4. The case of the petitioner is that she filed the claim

petition under Section 166 of the Motor Vehicles Act, 1988,

seeking compensation for the injuries sustained by her in the

road traffic accident that occurred on 27.04.2016 at 5.30 a.m.

at T. Bekuppe Village, Kanakapura-Kodihalli Road, Kasaba

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Hobli, Kanakapura Taluk, due to the rash and negligent driving

of the tempo bearing registration No.KA-41-A-8214. It is

alleged by the petitioner that, on the said date, the petitioner

being the passenger of the auto rickshaw bearing registration

No.KA-03-AA-8423 was going near T. Bekuppe village,

Kanakapura-Kodihalli Road, Kasaba Hobli, Kanakapura Taluk.

At that time, the driver of Tempo bearing tempo bearing

registration No.KA-41-A-8214 came with high speed in rash

and negligent manner and dashed against the said auto. As a

result of which, the petitioner fell down and sustained grievous

injuries. Then she was immediately shifted to KIMS Hospital,

V.V. Puram, Bangalore, where she was admitted as inpatient

for two months. On examination, it was found that the

petitioner sustained elbow dislocation right side, metacarpals of

right hand, fracture of right femur, etc. The petitioner has

spent Rs.4,00,000/- towards medical expenses. She is

permanently disabled and unable to do the physical work as

she was doing prior to the accident. Hence, prayed for the

grant of compensation.

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5. In pursuance of notice, respondent No. 1 being the

insurer of the tempo, appeared and filed written statement

stating that due to rash and negligent driving of the driver of

auto rickshaw, the accident had occurred and it was not by the

driver of the tempo. Hence, prayed for dismissing the petition.

6. Respondent No. 2 being the insured of the offending

vehicle, did not appear before the Tribunal and he was placed

ex-parte.

7. On behalf of the petitioner, she herself was examined

as P.W.1 and a doctor was examined as P.W.2 and got marked

exhibits P.1 to P.11. On the other hand, on behalf of

respondents, no witness was examined and no documents were

marked.

8. After hearing the arguments of learning counsel for

the parties, the Tribunal allowed the appeal in part answering

issue Nos.1 and 2 partly in the affirmative and granted

compensation of Rs.8,67,700/- along with 7% interest. Being

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aggrieved by the same, the claimant is before this Court in this

appeal.

9. The learned Counsel for the petitioner has contended

that the petitioner was earning Rs.10,000/- per month, but the

Tribunal has considered Rs.6,500/- per month as the notional

income. The accident was of the year 2016 and therefore,

prayed for enhancement in the compensation. The learned

Counsel further submitted that regarding disability, the Tribunal

has taken only 30%, but the petitioner has suffered disability to

the upper limb at 94% and 47% disability to the whole body.

But, the Tribunal has reduced the disability, which is not

correct. The petitioner is suffering injuries on the right hand

and right leg, which have become totally disfunctional. The

petitioner cannot lift her hand or leg and the legs have almost

become weak. She cannot squat and cannot do her personal

work. There is functional disability of 100%. However, the

Tribunal has considered 94% towards limb disability and 47%

disability towards whole body. Hence, prayed for allowing the

appeal and sought for enhancement of compensation.

NC: 2024:KHC:24158

10. The learned Counsel for the respondent-insurance

company has submitted that the Tribunal has considered the

future prospects and therefore, no compensation is granted

under the said head. It is contended that there is disability of

95% to the limbs which comes 31% to the whole body, but the

Tribunal has taken the disability at 30%, which is correct.

Therefore, nothing to be enhanced. Hence, prayed for

dismissing the appeal.

11. Having heard the learned counsel appearing for the

parties, perused the records.

12. The petitioner-claimant is present before this Court

in person and the photographs of the claimant are produced by

the learned counsel. The petitioner has become disfigured and

she is unable to walk and she cannot even lift her right hand

and she cannot attend to her personal work. She also has

sustained injuries on the chest, apart from three other fractures

on the right leg and hand. Both the upper and right limbs have

become disfunctional. Such being the case, taking 30% towards

disability by the Tribunal is not correct. Therefore, this Court

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assess the disability towards whole body at 40%, which is just

and reasonable. The age of the petitioner at the time of

accident was 39 years and the accident was occurred during

2016. Therefore, taking Rs.9,500/- towards monthly income

would be just and reasonable.

13. Considering the facts of the case and the

observations made in the petition, since the petitioner was

aged 39 years at the time of the accident and she cannot work

or cannot do her personal work and there is partial functional

disability and there is loss of income due to disability, I hold

25% disability to be granted towards future prospects.

Accordingly, 25% disability towards future prospects is granted.

Therefore, the monthly income would come to Rs.11,875

(Rs.9,500 x 25% = 2,375+9500). Therefore, the loss of

income due to disability would come to Rs.8,55,000/-

(Rs.11,875 x 12 x 15 x 40%).

14. As regards the pain and suffering, the Tribunal has

awarded Rs.65,000/-, whereas the injuries sustained by the

petitioner is the fracture of upper limb and injuries on the chest

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and other parts of the body. Therefore, considering the same

and her admission in the hospital for more than two months,

this Court awards Rs.1,00,000/-.

15. As regards food and nourishment, the Tribunal has

awarded Rs.30,000/-. Having regard to the facts and

circumstances of the case, the same is enhanced to

Rs.50,000/-.

16. So far as the medical expenses is concerned, the

learned counsel for the appellant submitted that there were the

medical bills for Rs.40,000/-, which has not been granted by

the Tribunal. But, neither the prescription for the medical bills

at Sl. No.69 and Sl. No.4 nor the invoices were produced before

the Tribunal. Therefore, considering the facts and

circumstances of the case, there is no need to award

Rs.40,000/- without any evidence. Therefore, grant of

compensation of Rs.3,12,700/- by the Tribunal is just and

proper.

NC: 2024:KHC:24158

17. In so far as the loss of amenities, the Tribunal has

awarded Rs.40,000/-. The petitioner has almost lost right leg

and right hand, which has become totally disfunctional. She

has to suffer throughout her life and she cannot attend to her

personal work. Such being the case, this Court awards

Rs.80,000/- towards the loss of amenities.

18. As regards the loss of income during the laid up

period, the Tribunal has awarded Rs.39,000/- as compensation.

the Tribunal has calculated the income for 3 months and the

same is confirmed.

19. As regards the future medical expenses, Rs.30,000/-

has been awarded by the Tribunal. The doctor has stated that

the petitioner needs surgery for removal of implants, which

would cost Rs.50,000/. Such being the case, the amount of

Rs.50,000/- is granted towards the future medical expenses.

20. In all, the petitioner is entitled for a modified

compensation as tabulated below:

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                                               NC: 2024:KHC:24158





Sl.                                                 Amount in
No.
              Heads of compensation
                                                     Rupees

 1    Pain and sufferings                            1,00,000-00

 2    Food and      nourishment        attendant      50,000-00
      charges

 3    Medical expenses                               3,12,700-00

 4    Loss of amenities                               80,000-00

 5    Loss of future income on account of            8,55,000-00
      disability

 6    Loss of income during the laid up               39,000-00
      period

 7    Future medical expenses                         50,000-00

                    Total                          14,86,700-00

21. As regards liability, the Tribunal, after considering

the evidence on record, has categorically held that there was

contributory negligence on both the vehicles and held 85%

negligence on the driver of the tempo and 15% negligence on

the driver of the auto rickshaw. The claimant while filing the

petition has not made the driver or the insurer of the auto

rickshaw and only made the driver of the tempo and its insurer

as party. The police have filed charge sheet against the driver

of the tempo. Therefore, the Tribunal has held that the accident

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NC: 2024:KHC:24158

occurred due to contributory negligence on both drivers and

therefore, considered the negligence at 15% on the driver of

the auto rickshaw. Such being the case, there is no need to fix

the entire liability on the driver and owner of the tempo.

Therefore, there is no need to interfere on the negligence part

considered by the Tribunal.

22. Accordingly, I proceed to pass the following :

ORDER

(i) The appeal filed by the appellant stands

allowed in part;

(ii) The impugned judgment and award

passed by MVC No.7281/2016 against the judgment

and award dated 27.09.2018 passed by the Member,

Motor Accident Claims Tribunal, XVI Additional

Judge, Court of Small Causes, Bangalore, is hereby

modified;