Karnataka High Court
Smt C Umadevi @ Chengalam Umadevi vs Sri R Natarajan on 29 May, 2024
Author: K.Natarajan
Bench: K.Natarajan
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MFA No. 492 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 492 OF 2023 (MV-I)
BETWEEN:
SMT C UMADEVI @ CHENGALAM UMADEVI
W/O CHENGALAM LAKSHMINARAYANA
NOW AGED ABOUT 40 YEARS,
RESIDING AT NO 56, 4TH MAIN ROAD END,
KADIRENAHALLI, BANASHANKARI II STAGE,
BENGALURU - 560070.
...APPELLANT
(BY SMT. SUSHMITHA G., ADVOCATE)
AND:
1. SRI R NATARAJAN,
S/O RAMASAMY, MAJOR,
RESIDING AT NO 4/79, NALLIPALAYAM VILLAGE,
PUDHUPALAYAM, GANDHI ASHARAM POST,
TIRUCHENGODE TALUK, NAMAKKAL DISTRICT,
TAMIL NADU - 637201.
Digitally signed by
VEDAVATHI A K
Location: High 2. THE ROYAL SUNDARAM
Court of Karnataka
GENERAL INSURANCE CO. LTD.,
BRANCH OFFICE AT: RAGHAVENDRA PLAZA,
1ST FLOOR, 1ST CROSS, HOSUR MAIN ROAD,
WILSON GARDEN, BANGALORE 560027
REP. BY ITS MANAGER.
...RESPONDENTS
(BY SRI. C.R.RAVISHANKAR, ADV. FOR R2,
V/O DATED 20.01.2023 NOTICE TO R1 IS DISPENSED WITH.)
THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DT.02.03.2022 PASSED IN MVC
NO.1404/2020 ON THE FILE OF THE I ADDITIONAL SMALL
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MFA No. 492 of 2023
CAUSES JUDGE, MACT, BENGALURU, (SCCH-11), 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 claimant under Section
173(1) of Motor Vehicles Act, 1988 challenging the
judgment and award dated 02.03.2022 passed in MVC
No.1404/2020 by the I Addl. Small Causes Judge & Motor
Accident Claims Tribunal, Bangalore (SCCH-11)
(hereinafter referred to as the 'Tribunal').
2. Heard the arguments of the learned counsel for
the appellant and learned counsel for respondent No.2-
Insurance Company.
3. The status of the parties before the Tribunal is
retained for the sake of convenience.
4. The case of the appellant/claimant is that she
filed a claim petition before the Tribunal under Section 166
of Motor Vehicles Act (for short 'M.V. Act') claiming
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compensation of Rs.20,00,000/- for the injuries sustained
by him in a road traffic accident that occurred on
06.01.2020 inter alia contending that he was proceeding
on Motor Cycle bearing Registration No.KA-05-JW-3271
was ridden by one C. Lakshminarayana along with pillion
rider from Niluvarathapalli towards Bangalore City on the
extreme left side of Caddappah-Bengaluru Road, near
Chinnasandra Village, Chintamani Taluk, Chikkaballapura
District, at that time a lorry bearing Registration No.TN-
37-BJ-3309 driven by its driver came from opposite
direction in a rash and negligent manner and dashed
against the petitioner's motor cycle due to which, the rider
and pillion rider fell down and sustained grievous injuries.
Immediately, the claimant was shifted to Srinivasa
Specialty Hospital, Hosakote, wherein they took treatment
as inpatient and spent Rs.6,50,000/- towards medical,
conveyance, nourishment and other incidental charges.
5. It is further stated that prior to accident, the
claimant was hale and healthy and working as a coolie
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with an earning of Rs.20,000/- per month. Due to the
accidental injuries, they have suffered permanent
disabilities. The accident occurred purely due to rash and
negligent driving of driver of lorry. Therefore, the
respondents being the owner and the insurer of the
offending vehicle are jointly and severally liable to pay
compensation.
6. On service of notice, respondent No.1 did not
appear before the Tribunal and hence placed as exparte.
Respondent No.2-Insurance Company appeared before the
Tribunal and filed written statement and denied the
petition averments and also disputed the manner of
accident, age of injuries and quantum of compensation
claimed under different heads. He further contended that
the alleged accident occurred not due to negligent act of
offending vehicle and the petitioner was not wearing ISI
mark head gear at the time of accident and thereby he
violated the Provisions and Rules of Motor Vehicles Act.
He also contended that the amount claimed by the
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claimant is highly exorbitant, excessive and exaggerated
and prayed for dismissal of the suit.
7. On the basis of pleadings, the tribunal framed
the following issues for consideration:
1. Whether the Petitioner proves that, she
sustained grievous injuries in the accident that
occurred on 06.01.2020 at about 5.30 p.m.,
near Chinnasandra Village, Chintamani Taluk,
Chikkaballapura District, when she was
proceeding in a Motorcycle bearing registration
No.KA-05-JW-3271 as a pillion rider, due to the
rash and negligent driving of the Lorry bearing
registration No.TN-37-BJ-3309 by its driver?
2. Whether the Petitioner is entitled for
Compensation? If so, what is the quantum of
compensation and from whom?
3. What order or award?
8. In order to substantiate the issues and to
establish the case, claimant got examined herself as PW.2
and two other witnesses were examined as PWs.4 and 5
and got marked documents as Exs.P1 to P27. On the
other side the respondents did not examine any witness
nor produced any documents on their behalf.
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9. On the basis of material evidence, both oral and
documentary and on hearing the submissions of learned
counsel for both parties, the tribunal has awarded
compensation of Rs.12,35,661/- with interest @ 6% p.a.
from the date of petition till its realization and also held
respondent Nos.1 and 2 are jointly and severally liable to
pay the compensation to the claimant and directed to
deposit the amount within a period of one month from the
date of award.
10. Being aggrieved by the meager compensation
awarded by the tribunal, the claimant is before this Court
challenging the impugned judgment and award.
11. It is the vehement contention of the learned
counsel for appellant-claimant that the Tribunal has
awarded meager compensation under the head 'pain and
suffering' even though the claimant has suffered grievous
fractured injuries and she has admitted to the hospital
thrice and taken treatment for more than 40 days.
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Further, the compensation awarded under the head 'food
and extra nourishment and medical attendant' is very
meagre and the Tribunal ought to have assessed the
permanent physical disability of the claimant higher than
20% as it is evident from the medical records and
evidence of PW.5- Dr. Nagaraj B N. and the Tribunal has
not assigned any proper reason for reducing the same.
Hence, he submits that the tribunal has committed an
error in awarding meager compensation, which calls for
interference at the hands of this Court. Accordingly, he
seeks enhancement of compensation and allow the appeal.
12. Per contra, the learned counsel for respondent-
Insurance Company, justified the judgment and award
passed by the Tribunal. Further, he contended that the
Tribunal has assessed the disability correctly which does
not call for interference and in all other heads, the tribunal
has awarded reasonable compensation. Therefore, on
these grounds, he seeks dismissal of the appeal.
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13. Having heard the learned counsel for appellant-
claimant and the learned counsel for respondent-Insurance
Company, on perusal of the Exs.P1 to P36, the point to be
considered is as to whether the disability assessed by the
tribunal at 20% is proper or not?, whether the claimant is
entitled for enhancement of compensation regarding loss
of earning capacity and other amenities and also the
judgment and award require interference at the hands of
this Court.
14. On perusal of the records, it is not in dispute that
the accident was occurred on 06.01.2020 at about 5.30
p.m. due to rash and negligent act of driver of the lorry
bearing registration No.TN-37-BJ-3309 which was insured
by respondent No.2- Insurance company. The respondent
also did not challenge any liability fixed on the insurance
company and did not enter any defense by producing any
document before the tribunal to show that it was a false
complaint or collusion between the petitioner and insured.
The question that requires consideration is as to "whether
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the compensation awarded by the tribunal is meager and
requires enhancement?"
15. Towards 'injury, pain and suffering, the Tribunal
has awarded compensation of Rs.55,000/- which is
meagre since the claimant has sustained femur bone
fracture as well as fracture of right tibia. As such, this
head requires enhancement. Accordingly, it is enhanced
to Rs.75,000/- .
16. With regard to assessment of permanent
disability, the Tribunal has considered only 20% which is
on the lower side. As per the evidence of PW.5-Dr.
Nagaraj K N, the claimant has sustained injuries to femur
bone and right tibia and assessed the permanent disability
at 68% towards lower limb and to the whole body at 23%.
But the Tribunal has considered the disability at 20% only
and it has not assigned proper reason for reducing the
percentage of disability. Therefore, the permanent
disability to be considered as 23% instead of 20%.
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17. As regards the income of the claimant, she is
working as coolie and earning Rs.20,000/- per month. But
no documents are produced in this behalf. Hence, the
Tribunal has rightly considered the monthly income of the
claimant at Rs.14,500/- and the same is retained.
18. As regards food and extra nourishment and
medical attendant, the Tribunal has awarded
compensation of Rs.12,400/-. But the claimant was
admitted to hospital on three occasions and took
treatment from 06.01.2020 to 25.01.2020 and again from
20.02.2020 to 25.02.2020 and again from 08.01.2021 to
11.01.2021 i.e. totally for a period of 31 days. Thereafter,
for removal of implants, once again, she was admitted to
hospital for a period of 10 days totaling more than 40
days. Therefore, the Tribunal has granted very meagre
amount of compensation and the same needs to be
enhanced to Rs.30,000/-. Further, the Tribunal has
awarded Rs.10,000/- towards conveyance and the same
remains unaltered.
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19. In view of taking Rs.14,500/- per month
as income, the tribunal considered only two months as the
laid up period. Normally, the Court used to take at least
three months laid up period. Therefore, the laid up period
is taken as three months instead of two months and
calculated as 14,500X3=43,500/-. Hence, the
enhancement is Rs.14,500/-.
20. Insofar as loss of future amenities, the tribunal
awarded only Rs.10,000/-. In my view, the award passed
by the tribunal is very meager and the petitioner is a
woman, so definitely there will be some loss of future
amenities. I deem it appropriate to award an additional
amount of Rs.10,000/-. In all, the claimant would be
entitled to Rs.20,000/- under this head.
21. The tribunal awarded a sum of Rs.30,000/-
towards future medical expenses which is just and proper
since the claimant has already undergone removal of
implants.
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22. With regard to medical expenses, the Tribunal
has awarded a compensation of Rs.5,66,261/- which is
just and proper and the same remains unaltered.
23. As regards to loss of future income, the tribunal
has rightly considered the monthly income of the claimant
at Rs.14,500/-. Though the tribunal considered 20%
disability instead of 23% as stated by P.W.5, while
calculating at paragraph No.12(vi), the tribunal considered
only 20% and there is no reason for reducing another 3%.
It is pertinent to note that the claimant sustained fracture
of femur and right tibia. Therefore, as per the evidence
of P.W.5- Dr. Nagaraj K N, the tribunal cannot consider
only 20% as disability to the whole body. In view of the
fracture of femur bone and right tibia, this Court deems it
appropriate to take disability at 23%, considering the
injuries sustained by the claimant. Therefore, the loss of
future income due to disability would be Rs.6,00,300/-
(Rs.14,500/- x 12 x 15 x 23/100) as against Rs.5,22,000/-
awarded by the tribunal.
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24. In view of the above, the claimant would be
entitled to a total compensation of Rs.13,75,061/- as
against Rs.12,35,661/- as mentioned in the table below:
Heads Amount in
Rs.
Towards injury pain and suffering 75,000-00
Towards medical expenses 5,66,261-00
Towards food and extra nourishment and 30,000-00
medical attendant
Towards conveyance 10,000-00
Towards loss of earning during treatment 43,500-00
(14,500x3)
Towards loss of future earning capacity 6,00,300-00
Deprivation of future amenities 20,000-00
Future medical expenses 30,000-00
TOTAL 13,75,061-00
25. Accordingly, I pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The judgment and award dated 02.03.2022
passed in MVC No.1404/2020 by the Motor
Accident Claims Tribunal, Bengaluru (SCCH-11) is
modified;
iii) The claimant would be entitled to a sum of
Rs.13,75,061/- as against Rs.12,35,661/-;
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iv) The enhanced compensation amount shall be paid
by the respondent-Insurance Company with
interest @ 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, 60% shall be
released in favour of the claimant and 40% to be
deposited in any nationalized bank in the name of
petitioner;
vi) 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.
vii) Draw award accordingly.
Sd/-
JUDGE
SSD
