Karnataka High Court

Miss.Shahida D/O Gulab Kalawant vs Shri.Bhimrao S/O Vithoba Kamalekar on 29 May, 2024

                                                   -1-
                                                         NC: 2024:KHC-D:7130
                                                              MFA No. 102625 of 2019




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                 DATED THIS THE 29TH DAY OF MAY, 2024

                                                BEFORE
                              THE HON'BLE MR JUSTICE VENKATESH NAIK T
                       MISCELLANEOUS FIRST APPEAL NO. 102625 OF 2019 (MV-I)

                      BETWEEN:

                      MISS. SHAHIDA D/O .GULAB KALAWANT,
                      AGE: 27 YEARS, OCC: NURSE, (NOW NIL),
                      R/O: HINDALGA, TQ: DISTRICT: BELAGAVI.

                                                                          ...APPELLANT
                      (BY SRI. UMESH C. AINAPUR, ADVOCATE)

                      AND:

                      1.   SHRI. BHIMRAO S/O. VITHOBA KAMALEKAR,
                           AGE: MAJOR, OCC: SERVICE,
                           R/O. NANDAGIRI FLAT NO.17, SECT-29,
                           S.NO.191, NEAR PCNTDA WATER TANK,
                           RAVET, PUNE-415101, STATE MAHARASHTRA,
                           THERMAX LTD, ENERGY HOUSE, D-II BLOCK,
                           PLOT NO.36/39, MIDC CHINCHWAD, PUNE-411019.

                      2.   ORIENTAL INSURANCE CO. LTD,
Digitally signed by
MANJANNA E                 MADIWALA ARCADE, 2ND FLOOR,
Location: HIGH             CLUB ROAD, BELAGAVI.
COURT OF
KARNATAKA
                                                                      ...RESPONDENTS
                      (BY SRI. M. K. SOUDAGAR, ADV. FOR R2;
                          NOTICE TO R1 DISPENSED WITH)

                           THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
                      AGAINST THE JUDGMENT AND AWARD DATED 18.03.2019 PASSED
                      IN MVC NO.2655/2017 ON THE FILE OF THE IV ADDITIONAL
                      DISTRICT JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL-V,
                      BELAGAVI, 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:
                                   -2-
                                         NC: 2024:KHC-D:7130
                                          MFA No. 102625 of 2019




                           JUDGMENT

Though this appeal is listed for admission, with the consent

of learned counsel appearing for the parties, the matter is

taken up for final disposal.

2. This appeal is filed by the claimant aggrieved by the

judgment and award dated 18.03.2019 passed by the IV

Additional District Judge and M.A.C.T.-V, Belagavi in MVC

No.2655/2017, whereby the Tribunal awarded a compensation

of Rs.4,34,810/- to the claimant.

3. For the sake of convenience, the parties are

referred to as they referred to in the claim petition.

4. The claimant filed a claim petition under Section

166 of the Motor Vehicles Act claiming compensation for the

injuries sustained in a road traffic accident that occurred on

14.05.2016 involving Honda Activa bearing registration No.MH-

09/CH-8390 and car bearing registration No.MH-14/CC-8260. It

is contended that the offending car dashed against Honda

Activa, which was ridden by the petitioner in MVC

No.2975/2016 and the appellant was a pillion rider. The

appellant / claimant sustained injuries i.e., right humerus

NC: 2024:KHC-D:7130

fracture with radial nerve palsy, left frontal contusion and right

great toe extensor tendon injury. As on the date of accident,

the claimant was aged about 25 years and was working as staff

nurse in a nursing home.

5. The Tribunal considering the evidence on record

Ex.P1 to P31, oral evidence of PWs.1 to 3 and Ex.R1 granted

compensation of Rs.4,34,810/-.

6. Learned counsel for the appellant / claimant

submits that the Tribunal has failed to consider the injuries

sustained by the claimant, the amount spent towards medical

treatment, the percentage of disability and income of the

claimant. The injuries sustained by the claimant are grievous in

nature, but the Tribunal has failed to grant reasonable

compensation for those injuries and the compensation awarded

by the Tribunal is not just and reasonable on all heads. Hence,

he prayed to allow the appeal.

7. Learned counsel for respondent / Insurance

Company submits that the Tribunal considering the medical

evidence as well as oral evidence and other aspects of the

NC: 2024:KHC-D:7130

matter has granted a reasonable compensation. Hence, prayed

to dismiss the appeal.

8. As there is no dispute regarding injuries sustained

by the claimant in the road traffic accident that occurred on

14.05.2016 due to rash and negligent driving of the car bearing

No.MH-14/CC-8260 by its driver and the liability of the insurer

of the offending vehicle, the only point that arise for Court

consideration in the appeal is,

"Whether the quantum of compensation awarded by the Tribunal is just and proper or does it call for interference for enhancement?"

9. After hearing the learned counsel appearing for the

parties and perusing the judgment and award of the Tribunal, I

am of the opinion that the compensation awarded by the

Tribunal is not just and reasonable one, it is on the lower side

and hence, it is required to be enhanced. As per Exs.P24 to P26

discharge summaries and disability certificate and Ex.P22 -

wound certificate, the claimant sustained the following injuries:

i. Right humerus fracture with radial nerve palsy;

ii. Left frontal contusion;

NC: 2024:KHC-D:7130

iii. Right great toe extensor tendon injury.

10. As per the opinion of the doctor, injuries are

grievous in nature. The claimant was treated at Apple

Saraswati Hospital, Kolhapur. The injuries sustained and the

treatment taken by the claimant is also supported by oral

evidence of the claimant and the Doctor, who were examined

as PWs.2 and 3 respectively.

11. In this case, the Tribunal has observed that the

claimant sustained a grievous injury and two simple injuries.

For one grievous injury, as per the settled law, claimant is

entitled for an amount of Rs.40,000/- and for two simple

injuries, the claimant is entitled for Rs.10,000/-. Therefore, the

claimant is entitled for Rs.50,000/- under the head of 'pain

and sufferings'. Considering the discharge summaries and

wound certificate, the Tribunal awarded a sum of Rs.50,000/-

and it is reasonable one and hence, no interference is called for

in that regard.

12. 'Towards loss of income' is concerned, the

Tribunal considering the income of claimant at Rs.8,000/-

awarded a sum of Rs.1,72,800/-. If income of the claimant is

NC: 2024:KHC-D:7130

considered at Rs.8,750/-, then it has to be calculated as

Rs.2,83,500/- (Rs.8,750/- X 12 X 18 X 15 / 100). Therefore, it

works out to Rs.2,83,500/- as against Rs.1,72,800/- awarded

by the Tribunal.

13. The Tribunal awarded a sum of Rs.1,28,010/-

towards 'medical expenses' which is reasonable amount and

no interference is called for in that regard.

14. The Tribunal awarded a sum of Rs.20,000/- towards

'food, nourishment, conveyance and attendant charges',

which is not reasonable one. Hence, additional amount of

Rs.10,000/- is granted under the said head.

15. Towards 'loss of income during laid up period',

the Tribunal awarded a sum of Rs.24,000/- taking the notional

income of claimant at Rs.8,000/-. The nature of injuries

suggested that the claimant must have under treatment for a

period of three months and therefore, a sum of Rs.26,250/-

(Rs.8,750/- X 3) is awarded under the said head, as against

Rs.24,000/- awarded by the Tribunal by taking the notional

income at the rate of Rs.8,000/- per month, in view of the

NC: 2024:KHC-D:7130

circular issued by the Karnataka State Legal Services Authority,

Bengaluru.

16. The Tribunal awarded a sum of Rs.40,000/- towards

'loss of amenities' which is reasonable one. Hence, no

interference is called for in that regard. Thus, the claimant is

entitled for the following compensation:

Loss of future income                               Rs.2,83,500/-
Medical expenses                                    Rs.1,28,010/-
Pain and sufferings                                   Rs.50,000/-
Food,     nourishment,    conveyance        and
                                                      Rs.30,000/-
attendant charges
Loss of income during laid up period                  Rs.26,250/-
Loss of amenities                                     Rs.40,000/-
                    Total                           Rs.5,57,760/-
Less: Compensation awarded by the
                                                    Rs.4,34,810/-
      Tribunal
                   Balance                          Rs.1,22,950/-

17. The claimant is entitled to a total compensation of

Rs.5,57,760/-, as against Rs.4,34,810/- awarded by the

Tribunal. Accordingly, I pass the following: