Karnataka High Court
Karishma @ Karishma Ostwal vs Smt. Nagamma on 29 May, 2024
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MFA No. 4675 of 2018
NC: 2024:KHC:17994
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
M.F.A NO.4675 OF 2018 (MV-I)
BETWEEN:
KARISHMA @ KARISHMA OSTWAL
D/O NARENDRA OSTWAL,
R/AT NO.86, NEHRU ROAD,
OPP. TO YELLAMMA TEMPLE,
NEW GUDDADAHALLI,
BENGLAURU - 560 026
...APPELLANT
(BY SRI. D.NAGARAJA REDDY, ADVOCATE)
AND:
1. SMT. NAGAMMA
W/O SURESH V K,
MAJOR, NO.35, 5TH MAIN,
CHOWDAPPA LAYOUT,
BAPUJINAGAR, BENGLAURU - 560 026
Digitally signed
by MADHURI S 2. M/S LIBERTY VIDEOCON GENERAL INSURANCE
Location: High CO. LTD.,
Court of REP BY ITS MANAGER,
Karnataka 1ST FLOOR, # 1, ALYSSA,
REAR PORTION OLD NO.28,
NEW NO.23, RICHMOND ROAD,
BENGLUARU - 560 025
...RESPONDENTS
(BY SRI. B.PRADEEP, ADVOCATE FOR R2;
VIDE ORDER DATED 15.02.2024, NOTICE TO R1 IS
DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO SET ASIDE THE AWARD PASSED BY THE COURT
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MFA No. 4675 of 2018
NC: 2024:KHC:17994
OF III ADDL. JUDGE AND MACT, BENGALURU CITY (SCCH-18)
IN MVC NO.2276/2017 DATED 06.03.2017 IN ALLOWING THE
APPEAL AND IN ENHANCING THE AWARD OF THE TRIBUNAL
AND IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by petitioner under Section
173(1) of M.V.Act, seeking enhancement of the
compensation for the injuries sustained by her in a motor
vehicle accident dated 08.03.2017.
2. For the sake of convenience, the parties are
referred to by their rank before the Tribunal.
3. FACTS: It is the case of the petitioner that on
08.03.2017, at about 3.30 p.m., petitioner was riding TVS
Scooty bearing registration No.KA-01-EM-4527 ('TVS
Scooty' for short) with petitioner in MVC No.2277/2017 as
her pillion rider. When they were at 4th Cross, 6th Main
Road, Hampinagar, Bengaluru, driver of auto rickshaw
bearing registration No. KA-01-AF-3594 (for short
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'offending vehicle') came in a rash or negligent manner
and dashed against the TVS Scooty. As a result of the
impact, petitioners fell down and sustained injuries.
Despite prolonged treatment, petitioner is not completely
cured. As the owner and insurer of the offending vehicle,
respondents are jointly and severally liable to pay the
compensation and hence, the petition.
4. Despite due service of notice, respondent No.1
remained absent and as such, placed exparte by the
Tribunal.
5. Respondent No.2 has appeared and filed written
statement admitting the coverage of the offending vehicle
by the Policy issued by respondent No.2, but its liability is
subject to the terms and conditions of the policy. It has
denied the cause of accident, age, occupation, income and
nature of the injuries suffered by the petitioner and that
they have resulted in permanent partial disability. In
addition, respondent No.2 has further pleaded that at the
time of accident, the driver of the offending vehicle was
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not holding a valid driving license and as such, respondent
No.2 is not liable to pay the compensation and prays to
dismiss the petition.
6. Based on these pleadings, Tribunal has framed
necessary issues.
7. Petitioner has examined herself as PW-1, two
witnesses as PWs-2 and 3. She has got marked Exs.P1
to 22.
8. Respondent No.2 has not led any oral or
documentary evidence on its behalf.
9. Vide the impugned judgment and award, the
Tribunal has partly allowed the claim petition granting
compensation in a sum of Rs.3,23,200/- with interest
@9% p.a. and directed respondent No.2 to pay the same.
The details of compensation granted are as under:
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Heads Amount
In Rs.
Pain and suffering 30,000
Loss of amenities 15,000
Attendant, Nourishment and 4,000
conveyance charges
Medical expenses 62,200
Loss of future earnings 1,62,000
Loss of income during laid up period 15,000
Future medical expenses 20,000
Loss of marriage 15,000
prospects/disfigurement
TOTAL 3,23,200
10. Respondents have not challenged the impugned
judgment and award.
11. The petitioner has challenged the impugned
judgment and award contending that the notional income
considered by the Tribunal as well as the percentage of
disability taken is on the lower side. The compensation
granted under the other heads is also on the lower side
and pray to allow the appeal and enhance the
compensation.
12. On the other hand, the learned counsel
representing respondent No.2 supported the impugned
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judgment and award and sought for dismissal of the
appeal.
13. Heard arguments and perused the records.
14. Having regard to the fact that respondents have
not challenged the impugned judgment and award, the
findings of the Tribunal that accident occurred due to the
rash or negligent driving of the offending vehicle and in
the said accident, petitioner sustained grievous injuries
resulting in permanent partial disability has attained
finality.
15. Based on the material placed on record, the
Tribunal has rightly taken the age of petitioner as 23 years
and therefore, the multiplier 18 considered is appropriate.
Though the petitioner has claimed that she was earning
Rs.25,000/- per month, in the absence of evidence to
prove the said fact, the Tribunal has taken her income on
notional basis at Rs.7,500/- per month. Since the accident
is of the year 2017, based on minimum wages, the
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notional income is required to be taken at Rs.11,000/- per
month.
16. PW-3, Dr.Balachandra V has deposed that the
petitioner has suffered disability of 36% of right upper
limb and it comes to 12% of the whole body. The Tribunal
has considered the whole body disability at 10% and
calculated the loss of future earnings at Rs.1,62,000/-.
Taking into consideration the nature of the injuries
suffered, the disability taken at 10% is correct. With the
notional income at Rs.11,000/-, the compensation under
the head 'Loss of future earnings' is Rs.11,000 x 12 x 18 x
10% = Rs.2,37,600/- as against Rs.1,62,000/- granted by
the Tribunal.
17. Having regard to the nature of the injuries
sustained and the fact that it has resulted in disability, this
Court is of the considered opinion that petitioner is entitled
for compensation in a sum of Rs.50,000/- under the head
'Pain and Suffering' as against Rs.30,000/- and
Rs.30,000/- under the head 'Loss of amenities' as against
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Rs.15,000/- granted by the Tribunal. However, Rs.4,000/-
granted under the head 'Attendant charges' is correct.
Since the petitioner has suffered fracture, it is reasonable
to expect that she was under treatment for three months.
Therefore, at the rate of Rs.11,000/- per month, for a
period of three months under the head 'Laid up period',
petitioner is entitled for compensation in a sum of
Rs.33,000/- as against Rs.15,000/- granted by the
Tribunal. Since at the time of accident, petitioner was not
married, taking into consideration the nature of injuries
suffered, this Court is of the considered opinion that under
the head 'Loss of marriage prospects' she is entitled for
compensation in a sum of Rs.25,000/- as against
Rs.15,000/- granted by the Tribunal. Based on medical
bills, the Tribunal has rightly granted compensation in a
sum of Rs.62,200/- and looking to the nature of injuries
suffered, grant of compensation in a sum of Rs.20,000/-
under the head' future medical expenses' is also correct.
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18. Thus, in all petitioner is entitled for total
compensation in a sum of Rs.4,61,800/- as against
Rs.3,23,200/- granted by the Tribunal as detailed below:
Heads Amount granted Amount granted
by the Tribunal by this Court
In Rs. In Rs.
Pain and suffering 30,000 50,000
Loss of amenities 15,000 30,000
Attendant, Nourishment 4,000 4,000
and conveyance
charges
Medical expenses 62,200 62,200
Loss of future earnings 1,62,000 2,37,600
Loss of income during 15,000 33,000
laid up period
Future medical 20,000 20,000
expenses
Loss of marriage 15,000 25,000
prospects/disfigurement
TOTAL 3,23,200 4,61,800
19. Of course, petitioner is entitled for interest at
6% p.a. on the enhanced compensation.
20. As the insurer respondent No.2 is liable to pay
the compensation with accrued interest and accordingly, I
proceed to pass the following:
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NC: 2024:KHC:17994
ORDER
(i) Appeal is allowed in part.
(ii) Petitioner is entitled for compensation in a
sum of Rs.4,61,800/- as against
Rs.3,23,200/- granted by the Tribunal
together with interest at 6% p.a. on the
enhanced compensation.
(iii) Respondent No.2 is directed to pay the
compensation together with interest at
6% p.a 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.
(iv) The Registry is directed to send copy of
this judgment to the Tribunal forthwith.
Sd/-
JUDGE
MDS
