Karnataka High Court
Smt Girija vs Sri V Narayana Reddy on 29 May, 2024
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MFA No. 5295 of 2018
NC: 2024:KHC:18004
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.5295 OF 2018 (MV-I)
BETWEEN:
SMT GIRIJA
W/O B K PURUSHOTHAMA
AGED ABOUT 40 YEARS
R/A NO.13, JOLLY MOHALLA
BELEMAZJID ROAD, CHAMRAJPET
BENGALURU - 53
...APPELLANT
(BY SRI. SHRIPAD V SHASTRI, ADVOCATE)
AND:
1. SRI V NARAYANA REDDY
S/O CHANNA REDDY
R/A NO.239, MYSORE FEADS COMPOUND,
NAYANDANAHALLI, MYSORE ROAD
Digitally signed
BENGALURU - 560 039
by REKHA R
Location: High 2. THE UNITED INDIA INSURANCE
Court of CO. LTD., NO.40, LAXMI COMPLEX
Karnataka
K R ROAD, FORT, BENGALURU
BY ITS MANAGER
...RESPONDENTS
(BY SRI. P.B.RAJU, ADVOCATE FOR R2;
VIDE ORDER DATED 08.12.2023, NOTICE TO R1 IS
DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYING TO MODIFY AND ENHANCE THE COMPENSATION
FROM RS.11,38,018/- TO RS.25,00,000/- AWARDED BY THE
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MFA No. 5295 of 2018
NC: 2024:KHC:18004
MOTOR ACCIDENT CLAIMS TRIBUNAL, BENGALURU (SCCH-17),
IN MVC NO.2907/2016 DATED 03.03.2018, WITH COST AND
INTEREST, IN THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Not being satisfied with the compensation granted by
the Tribunal for the injuries sustained by her in a motor
vehicle accident dated 21.11.2015, petitioner has filed this
appeal under Section 173 (1) of Motor Vehicle Act.
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
21.11.2015 at about 1-40 p.m, she was riding Scooty
bearing registration number KA-41/J-2027 (for short
'Scooty') and proceeding on the left side of Bull Temple
Road. When she was near Ramakrishna Circle, lorry
bearing registration No.KA-04/Z-5665 (for short 'offending
vehicle') came in the same direction, being driven by its
driver in a high speed, in a rash or negligent manner and
NC: 2024:KHC:18004
dashed against the Scooty. Due to the impact, petitioner
fell down and sustained grievous injuries. Despite
prolonged treatment, petitioner is not completely cured.
She is suffering from permanent partial disability affecting
her earning capacity. 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, before the
Tribunal respondent No.1 remained absent and as such
placed ex-parte.
5. Respondent No.2 has appeared and filed written
statement admitting the coverage of the offending vehicle
by the policy issued by it, but its liability is subject to the
terms and conditions of the policy. Respondent No.2 has
disputed that accident occurred due to the rash or
negligent driving of the offending vehicle. It was on
account of negligence of the petitioner the accident
occurred. Respondent No.2 has also disputed the age,
occupation, income, nature of the injuries suffered and
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that they have resulted in permanent partial disability
affecting the income of the petitioner. The compensation
claimed is exorbitant and fanciful and sought for dismissal
of the petition.
6. Based on the pleadings, the trial Court has
framed necessary issues.
7. In support of her case, petitioner has examined
herself as PW-1 and 2 witnesses as PWs-2 and 3. She has
got marked Ex.P1 to 23.
8. On behalf of respondent No.2, RW-1 and 2 are
examined. Ex.R1 to 4 are marked.
9. Vide the impugned judgment and award the
Tribunal has partly allowed the claim petition granting
compensation in a sum of Rs.11,38,018/- and directed
respondent No.2 to pay the compensation with interest at
7.5% p.a, as detailed under:
NC: 2024:KHC:18004
Heads Amount
In Rs.
Towards Pain and sufferings 60,000
Towards attendant charges, extra 35,000
food and conveyance expenses
Towards medical expenses 8,13,818
Loss of income during laid up 28,000
period
Loss of income due to permanent 1,51,200
disability
Loss of future amenities and 30,000
happiness
Towards future medical expenses 20,000
TOTAL 11, 38,018
10. Respondents have not challenged the impugned
judgment and award.
11. During the course of arguments, learned
counsel for petitioner submitted that the Tribunal has
committed error in restricting the disability at 12% and
the notional income of petitioner at Rs.7,000/- per month.
The compensation granted under all the heads is on the
lower side and requires enhancement.
NC: 2024:KHC:18004
12. On the other hand learned counsel representing
respondent No.2 supported the impugned judgment and
award and sought for dismissal of the appeal.
13. Heard elaborate arguments of both sides and
perused the record.
14. Having regard to the fact that respondents have
not challenged the judgment and award of the Tribunal, its
findings that the accident occurred due to the rash or
negligent driving of the driver of the offending vehicle and
that in the said accident, the petitioner sustained injuries
resulting in permanent partial disability has attained
finality. Consequently, the only question that is required to
be decided is whether the compensation granted is just
and reasonable or it calls for interference by this Court.
15. In the petition, the petitioner has given her age
as 38 years. Though the petitioner has not produced any
documents to prove her age, at the earliest available
opportunity, in the complaint, FIR and medical records,
NC: 2024:KHC:18004
her age is shown as 38 years. Respondent No.2 has not
produced any document to controvert the same. In the
light of the same, the Tribunal is justified in taking the
age the petitioner as 38 years and consequently multiplier
15 taken by the Tribunal is correct. Even though petitioner
has claimed that she was doing tailoring and earning
Rs.15,000/- per month, she has not produced any
evidence to establish the same. Consequently, in the
absence of exact proof of her income, the Tribunal is
justified in taking the income on notional basis. Since the
accident is of the year 2015, based on minimum wages,
the notional income ought to have been taken at
Rs.9,000/- as against Rs.7,000/- by the Tribunal.
16. As per the wound certificate at Ex.P5, the
petitioner has suffered Crush, Avulsion, Degloving
circumferenial injury, lateral malleolar fracture with lateral
compartment muscle loss with ankle instability. She has
not examined the Doctor who has treated her. PW-3
Dr.B.Ramesh, Orthopedic Surgeon, working at Victoria
NC: 2024:KHC:18004
Hospital has examined her for the purpose of calculating
the disability. His cross-examination reveal that except the
Malleolar fracture, the remaining injuries are treated with
plastic surgery. PW-3 has deposed that the disability
suffered by the petitioner to the limb in question is 44%
and according to him, the whole body disability is at 22%.
Though the Tribunal has rightly held that PW-3 is not the
treating Doctor, the whole body disability is to be taken at
1/3rd of the particular limb, which comes to 15%.
Therefore, it has erred in restricting the whole body
disability at 12%. Hence, the whole body disability is
taken at 15%. With these components, the compensation
under the head loss of earning capacity due to disability is
Rs.9,000x12x15x15%=Rs.2,43,000/- as against
Rs.1,51,200/- granted by the Tribunal.
17. Having regard to the nature of injury suffered,
the Tribunal has rightly held that the petitioner was laid off
for a period of 4 months. At the rate of Rs.7,000/- per
month, for a period of 4 months, the Tribunal has granted
NC: 2024:KHC:18004
compensation in a sum of Rs.28,000/-. Since the income
is required to be taken at Rs.9,000/- per month, petitioner
is entitled for compensation in a sum of Rs.36,000/- under
this head. Taking into consideration the nature of the
injury suffered, period of treatment and the fact that it has
resulted in permanent partial disability, the compensation
in a sum of Rs.60,000/- granted under the head pain and
suffering is just and reasonable. However, the
compensation granted under the head loss of amenities of
life is enhanced to Rs.50,000/- as against Rs.30,000/-
granted by the Tribunal. Based on the bills produced by
the petitioner, the Tribunal has rightly granted
compensation in a sum of Rs.8,13,818/- and it calls for no
interference. Similarly, in the absence of proof of exact
future treatment required to be taken, the compensation
granted in a sum of Rs.20,000/- under the head future
medical expenses is also just and reasonable.
18. The Tribunal has granted compensation in a
sum of Rs.35,000/- under the head conveyance, attendant
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NC: 2024:KHC:18004
charges, extra food and nourishment. It is argued by the
learned counsel for the petitioner that for the treatment of
petitioner, her husband has applied for Earned Leave for a
period of one month and therefore, petitioner is entitled
for compensation in a sum of Rs.30,494/- towards loss of
income. Since compensation is granted to the petitioner
under the head loss of income during laid off period and
also under the head attendant charges, she is not entitled
for compensation on the ground that her husband took
leave for her treatment, which may be allowed in case of
parents taking care of minor child.
19. Thus, in all the petitioner is entitled for total
compensation in a sum of Rs.12,62,818/- as against
Rs.11,38,018/- granted by the Tribunal together with
interest at 6% p.a. on the enhanced compensation as
detailed below:
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NC: 2024:KHC:18004
Heads Amount granted Amount granted
by the Tribunal by this Court
In Rs. In Rs.
Pain and sufferings 60,000 60,000
Attendant charges, 35,000 40,000
extra food and
conveyance expenses
Towards medical 8,13,818 8,13,818
expenses
Loss of income during 28,000 36,000
laid up period
Loss of income due to 1,51,200 2,43,000
permanent disability
Loss of future amenities 30,000 50,000
and happiness
Towards future medical 20,000 20,000
expenses
TOTAL 11,38,018 12,62,818
20. In the result, appeal is allowed in part and
accordingly the following:
ORDER
(i) Appeal is allowed in part.
(ii) Petitioner is entitled for compensation in a
sum of Rs.12,62,818/- as against
Rs.11,38,018/- granted by the Tribunal
together with interest at 6% p.a. on the
enhanced compensation.
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NC: 2024:KHC:18004
(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.
(iv) The Registry is directed to send back the
trial Court records along with copy of this
judgment forthwith.
Sd/-
JUDGE
RR
