Karnataka High Court

Lakshmamma vs Syed Umraj on 3 September, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

                                                 -1-
                                                              NC: 2024:KHC:35930
                                                         MFA No. 8239 of 2018




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 3RD DAY OF SEPTEMBER, 2024

                                              BEFORE
                           THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                      MISCELLANEOUS FIRST APPEAL NO. 8239 OF 2018 (MV)
                      BETWEEN:

                      LAKSHMAMMA
                      AGED ABOUT 53 YEARS
                      W/O DODDANAGAIAH
                      R/O KURUDUGANAHALLI VILLAGE
                      KASABA HOBLI, KORATAGERE TALUK
                      TUMAKURU DISTRICT-572 129
                                                                    ...APPELLANT
                      (BY SRI. K.T.GURUDEVAPRASAD., ADVOCATE)

                      AND:

                      1.    SYED UMRAJ
                            AGED ABOUT 29 YEARS
                            S/O SYED ANWAR
                            I CROSS, MARUTHI NAGARA
                            KYATHASANDRA
Digitally signed by         TUMAKURU-572 101.
HEMALATHA A
Location: HIGH        2.    THE NEW INDIA ASSURANCE
COURT OF
KARNATAKA                   COMPANY LIMITED
                            OPP SRIRAMA MANDIRA
                            GENERAL KARIYAPPA ROAD
                            K R EXTENSION, TUMAKURU-572 101
                                                                 ...RESPONDENTS
                      (BY SRI.S.V. HEGDE MULKHAND., ADVOCATE FOR R2:
                      NOTICE TO R1 IS HELD SUFFICIENT V/O DATED: 20.03.2024)
                           THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                      AGAINST THE JUDGMENT AND AWARD DATED:06.03.2017
                      PASSED IN MVC NO.529/2015 ON THE FILE OF THE
                      ADDITIONAL SENIOR CIVILJ UDGE, MACT-XIII, MADHUGIRI,
                             -2-
                                         NC: 2024:KHC:35930
                                      MFA No. 8239 of 2018




PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:   HON'BLE MR JUSTICE H.T. NARENDRA PRASAD


                    ORAL JUDGMENT

This appeal under Section 173(1) of Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act') has been

filed by the claimant being aggrieved by the judgment

dated 06.03.2017 passed by the Additional Senior Civil

Judge and MACT-XIII, Madhugiri (hereinafter referred to

as 'the Tribunal') in MVC No.529/2015.

2. Facts giving rise to the filing of the appeal briefly

stated are that on 07.07.2014 at about 2.30 p.m., when

the claimant was walking on the left side of the road from

Tumakuru to Koratagere main road, in front of KSRTC bus

stand at Koratagere town, at that time, a motorcycle

bearing registration No.KA-06/EA-3085 being ridden by its

rider at a high speed and in a rash and negligent manner,

dashed to the claimant. As a result of the aforesaid

NC: 2024:KHC:35930

accident, the claimant sustained grievous injuries and was

hospitalized.

3. The claimant filed a petition under Section 166 of

the Act, seeking compensation. It was pleaded that she

spent significant amount towards medical expenses,

conveyance charges and other related costs. It was further

pleaded that the accident occurred solely on account of

rash and negligent riding of the offending vehicle by its

rider.

4. Upon service of notice, the respondent Nos.1 and 2

appeared through counsel and respondent No.2 filed

written statement denying the averments made in the

claim petition.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter, recorded

the evidence. The claimant, in order to prove the case,

examined himself as PW-1, and Dr.Chandan was examined

as PW-2, and got exhibited documents namely Ex.P1 to

Ex.P14. On behalf of the respondents, one witness was

NC: 2024:KHC:35930

examined as RW-1 and got exhibited document namely

Ex.R1. The Claims Tribunal, by the impugned judgment,

inter alia, held that the accident took place on account of

rash and negligent riding of the offending vehicle by its

rider, as a result of which, the claimant sustained injuries.

The Tribunal further held that the claimant is entitled to a

compensation of Rs.1,55,608/- along with interest at the

rate of 6% p.a. and since the insurer has violated the

policy condition, directed the insurer - owner of the

offending vehicle to deposit the compensation amount

along with interest. Being aggrieved, the present appeal

has been filed.

6. The learned counsel for the claimant raised the

following contentions:

(i) Firstly, the Tribunal erred in assuming the monthly

income of the claimant as Rs.6,000/-, despite claiming

that she earned Rs.6,000/- to Rs.7,000/- per month.

(ii) Secondly, the claimant has examined the doctor as

PW-2. The Tribunal undervalued the claimant's whole-body

NC: 2024:KHC:35930

disability at 10%, contradicting the evidence of the doctor

that the claimant suffered 45% disability to a particular

limb and 15% to the whole body.

(iii) Thirdly, due to the accident, the claimant has

sustained grievous injuries. She was treated as inpatient

for a period of 26 days. Even after discharge from the

hospital, she was not in a position to discharge his regular

work. She has suffered lot of pain during treatment.

Considering the same, the compensation awarded by the

Tribunal under the heads of 'loss of amenities', 'pain and

sufferings' and other incidental expenses are on the lower

side.

(iv) Fourthly, at the time of the accident, the

claimant was aged about 50 years, the multiplier applied

by the Tribunal at '12' is on the lower side, the correct

multiplier is '13'.

NC: 2024:KHC:35930

Re.liability:

v) Lastly, at the time of the accident the rider of the

offending vehicle was not having a valid and effective

driving licence. The insured has violated the policy

condition, but in respect of third party is concerned, the

Insurance Company has to pay the compensation amount

at the first instance with liberty to recover the same from

the insurer. In support of his contentions, he relied on the

judgment of the Apex Court in the case of PAPPU AND

ORS. V. VINOD KUMAR LAMBA AND ANR. [AIR 2018

SC 592] a Full Bench decision of this Court in the case of

NEW INDIA ASSURANCE CO. LTD. BIJAPUR vs.

YALLAVVA AND ANOTHER [ILR 2020 Kar.2239],

Hence, he sought to allow the appeal.

7. On the other hand, the learned counsel for the

Insurance Company raised the following counter-

contentions:

(i) Firstly, the claimant herself has stated that she

was earning Rs.6,000/- to Rs.7,000/- per month. Hence,

NC: 2024:KHC:35930

the Tribunal rightly assessed the notional income as

Rs.6,000/- per month.

(ii) Secondly, the Tribunal considering the injuries

sustained by the claimant and evidence of the doctor, has

rightly assessed the whole body disability at 10%.

(iii) Thirdly, the injuries suffered by the claimant are

minor in nature. Considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the compensation awarded by the Tribunal under

the heads of 'loss of amenities', 'pain and sufferings' and

other incidental expenses are just and reasonable and it

does not warrant interference.

Re.liability:

(iv) Lastly, admittedly the driver of the offending

vehicle was not having a valid driving licence. Since the

insurer has violated the policy condition, the Insurance

Company is not liable to pay the compensation. The

NC: 2024:KHC:35930

Tribunal has rightly exonerated the Insurance Company.

Hence, he sought to dismiss the appeal.

8. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal and the

original records.

9. It is not in dispute that the claimant sustained

injuries in the road traffic accident occurred on 07.07.2014

due to rash and negligent driving of the offending vehicle

by its driver.

10. The claimant claims that she was earning

Rs.6,000/- to Rs.7,000/- per month as agricultural labour.

Considering the same, the monthly income has to be

assessed at Rs.7,000/- per month.

11. As per wound certificate, the claimant has

sustained fracture of both bones of right leg and other

injuries. The doctor in his evidence has stated that the

claimant has suffered disability of 45% to particular limb

and 15% to whole body. Therefore, taking into

NC: 2024:KHC:35930

consideration the deposition of the doctor and injuries

mentioned in the wound certificate, I am of the opinion

that the whole body disability has to be assessed at 15%

The claimant was aged about 53 years at the time of the

accident and multiplier applicable to her age group is '13'.

Thus, the claimant is entitled for compensation of

Rs.1,63,800/- (Rs.7,000*12*13*15%) on account of 'loss

of future income'.

12. The nature of injuries indicates that the claimant

must have been under rest and treatment for a period of 3

months. Consequently, the claimant is entitled for

compensation of Rs.21,000/- (Rs.7,000*3 months) under

the head 'loss of income during laid up period'.

13. The claimant was hospitalized as an inpatient for

more than 26 days in the hospital and subsequently

received further treatment. Due to the accident, the

claimant has suffered grievous injuries and also undergone

surgery. She has suffered lot of pain during the treatment

period and she has to suffer the disability throughout her

- 10 -

NC: 2024:KHC:35930

life. Considering the prolonged pain during treatment as

well as the permanent disability certified by the doctor, I

am inclined to enhance the compensation awarded by the

Tribunal under the head of 'pain and sufferings' from

Rs.20,000/- to Rs.45,000/- and under the head of 'loss of

amenities' from Rs.10,000/- to Rs.35,000/-, and under the

head 'incidental expenses' from Rs.10,000/- to

Rs.20,000/-.

14. Although the evidence of the doctor suggests that

the claimant requires approximately Rs.30,000/- to

Rs.35,000/- for removal of implants, the claimant has not

provided an estimate for future surgery. Considering the

nature of the injuries and the evidence of the doctor, I am

of the opinion that the claimant is entitled to Rs.15,000/-

towards 'future medical expenses'.

15. Considering the nature of injuries, the

compensation awarded by the Tribunal under other heads

is just and reasonable.

- 11 -

NC: 2024:KHC:35930

16. Thus, the claimant is entitled to the following

compensation:

                             As awarded          As awarded
                               by the              by this
   Compensation under
                              Tribunal              Court
     different Heads
                                     (Rs.)         (Rs.)

  Pain and sufferings                  20,000         45,000

  Medical expenses                     17,208         17,208

  Food, nourishment,                   10,000         20,000
  conveyance and
  attendant charges

  Loss of income during                12,000         21,000
  laid up period

  Loss of amenities                    10,000         35,000

  Loss of future income                86,400       1,63,800

  Future medical expenses                    0        15,000

                Total                1,55,608      3,17,008




Re.liability:

17. It is not in dispute that as on the date of accident

the rider of the offending vehicle was not having a valid

and effective driving licence. Since the insured has

- 12 -

NC: 2024:KHC:35930

violated the policy condition, the Tribunal rightly

exonerated the Insurance Company from liability.

However, in respect of the third party is concerned, in

view of the judgment of the Apex Court in the case of

PAPPU (supra) and Full Bench judgment of this Court in

the case of YELLAWWA (supra), the Insurance Company

has to pay the compensation amount at the first instance