Smt Gowramaa vs Smt Manjula M G
2024 Latest Caselaw 22864 Kant

Karnataka High Court

Smt Gowramaa vs Smt Manjula M G on 10 September, 2024

Author: H.T. Narendra Prasad

Bench: H.T. Narendra Prasad

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                                                              NC: 2024:KHC:37018
                                                            MFA No. 5495 of 2019




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 10TH DAY OF SEPTEMBER, 2024

                                              BEFORE
                           THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
                      MISCELLANEOUS FIRST APPEAL NO. 5495 OF 2019 (MV)
                      BETWEEN:

                      SMT GOWRAMMA
                      W/O JAYARAM
                      AGED 46 YEARS
                      R/AT #161, 18TH CROSS
                      RAJEEV GHANDI NAGAR
                      SUNKADAKATTE, KEBBEHALL
                      VISWANEEDAM, BENGALURU-560 091
                                                                    ...APPELLANT
                      (BY SRI.D.NAGARAJA REDDY., ADVOCATE)

                      AND:

                      1.    SMT. MANJULA M G
                            W/O NARASIMHAMURTHY
                            MAJOR, R/AT NO.442
                            5TH MAIN, 6TH CROSS
Digitally signed by         RANGANATHAPURA
HEMALATHA A                 KAMAKASHIPALYA
Location: HIGH              BENGLAURU-560 079.
COURT OF
KARNATAKA
                      2.    M/S I C I C I LOMBARD GENERAL
                            INSURANCE CO.LTD.
                            REP BY ITS MANAGER
                            #121, THE ESTATE
                            9TH FLOOR, DICKENSON ROAD
                            M G ROAD, SIVANCHETTI GARDENS
                            BENGALURU-560 042.
                                                              ...RESPONDENTS
                      (BY SRI.B.C. SHIVANNE GOWDA., ADVOCATE FOR R2:
                      NOTICE TO R1 IS SERVED AND UNREPRESENTED)
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                                         NC: 2024:KHC:37018
                                      MFA No. 5495 of 2019




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:01.04.2019
PASSED IN MVC NO.965/2018 ON THE FILE OF THE XIII
ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER,
MACT, BENGALURU (SCCH-15), 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 01.04.2019 passed by the Motor Accident Claims

Tribunal (hereinafter referred to as 'the Tribunal') in MVC

No.965/2018.

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

stated are that on 09.01.2018 at about 10.00 p.m., when

the claimant was walking on the left side of Kebbehalla

main road, near Government Depot, Sunkadakatte, at that

time, a motorcycle bearing registration No.KA-02/JR-9542

being ridden by its rider at a high speed and in a rash and

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negligent manner, dashed to the claimant. As a result of

the aforesaid 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 driving of the offending vehicle by its

driver.

4. Upon service of notice, the respondent No.2

appeared through counsel and filed written statement

denying the averments made in the claim petition. The

respondent No.1, despite service of notice, did not appear

before the Tribunal and was placed ex-parte.

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 herself as PW-1, another witness as PW-2 and

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three doctors as PW-3 to PW-5 and got exhibited

documents namely Ex.P1 to Ex.P29. On behalf of the

respondents, one witness was 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.1,16,000/-

along with interest at the rate of 6% p.a. and directed the

Insurance Company 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, due to the accident, the claimant has

suffered grievous injuries, she was admitted to Kavita

Hospital, Bengaluru. For the injuries mentioned in the

wound certificate, since the doctor has advised MRI, the

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claimant, against the medical advise, was discharged from

the said hospital. After that, the claimant got MRI report

and again visited the same hospital on 23.01.2018. Since

they have estimated Rs.1,50,000/- to Rs.2,00,000/- for

the surgery, the claimant was not admitted to the said

hospital. Later, on 02.02.2018 admitted to the Prestine

hospital and undergone surgery. The said hospital has

issued Ex.P5(2) as wound certificate. Since the injuries are

grievous in nature, she has examined the doctors, both

from Kavita Hospital and Prestine hospital. The doctor has

assessed the disability at 34.2% to particular limb and

12% to whole body. The Tribunal disbelieved the evidence

of the doctor and the second wound certificate at Ex.5(2)

and erred in not awarding any compensation for loss of

income due to disability and medical bill.

(ii) Secondly, due to the accident the claimant has

suffered grievous injury, she was inpatient for a period of

12 days and she has suffered lot of pain during treatment

and she has to suffer the disability and unhappiness

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throughout her life. 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. 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, after the accident, the claimant visited the

Kavita Hospital, where the doctor examined her and she

took treatment. As per the wound certificate - Ex.P5(1),

the injuries are minor in nature and there is no fracture.

The claimant was admitted to Prestine hospital after 21

days, where the wound certificate has been issued as per

Ex.P5(2) stating that she has suffered fractures. It is very

clear from the evidence of the doctor who has examined

her that, on such fracture, a patient cannot sustain the

pain for a period of 21 days. Therefore, the Tribunal has

rightly disbelieved Ex.P5(2) - wound certificate issued by

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the Prestine hospital and the injury suffered as per

Ex.P5(1) is minor in nature. Considering the same, the

Tribunal has granted just compensation for 'pain and

sufferings', 'loss of amenities' and other incidental

expenses and rightly denied the compensation under the

heads of 'loss of future income due to disability'.

(iii) Thirdly, since the Tribunal has disbelieved

Ex.P5(2), the medical bills related to surgery done in

Prestine hospital cannot be considered and the Tribunal

has rightly rejected the same. 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. The case of the claimant is that on 09.01.2018 at

about 10.00 p.m., when the claimant was walking on the

left side of Kebbehalla main road, near Government Depot,

Sunkadakatte, at that time, a motorcycle bearing

registration No.KA-02/JR -9542 being ridden by its rider at

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a high speed and in a rash and negligent manner, dashed

to the claimant. As a result of the aforesaid accident, the

claimant sustained grievous injuries. On the same day,

she was admitted to Kavita hospital. As per Ex.P5(1) -

wound certificate, the injury suffered by the claimant is as

follows:

"(i) Abrasion over left knee

(ii) Pain and swelling over below knee joint.

(iii) Pain and tenderness over left elbow joint.

(iv) Pain at left hip joint.

Considering the above finding the orthopedician is of the opinion that wound is simple."

Even she was inpatient at that hospital, till 12.01.2018.

As per the discharge summary, she was discharged

against medical advise. As per the evidence of PW5, he

has advised the patient to go for MRI. The further case of

the claimant is that after she took MRI report, she has

visited the same hospital on 23.01.2018. The doctor has

advised for surgery, he has estimated Rs.1,50,000/- to

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Rs.2,00,000/- for the surgery. Therefore, the claimant was

admitted to Prestine hospital, where she has undergone

surgery and the wound certificate issued as per Ex.P5(2) is

extracted below:

"MRI right knee joint dated 21.01.2018 vide ID No.030975 report:-

Comminuted undisplaced fractures involving posterior inter condylar tubercle/eminence of proximal tibia noted with extensive bone marrow edema. Bony avulsion of posterior cruciate ligament at its tibial attachment noted. Near complete disruption of anterior cruciate ligament noted. Partial thickness tear with strain injury of superficial component of medial collateral ligament. Mid substance strain injury with partial thickness tear of lateral patellar retinaculum noted. Opinion: Injury No.1 is grievous in nature."

Even, the doctor - PW3 in his evidence has deposed that

injury suffered by the claimant related to one month back

and he has assessed the disability at 34.2% to particular

limb and 12% to whole body. Considering the evidence of

the doctors PW5 and PW3 and Exs. P5(1) and P5(2), I am

of the opinion that the injuries stated in the wound

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NC: 2024:KHC:37018

certificate - Ex.P5(2) is related to the accidental injury

suffered by the claimant on 09.01.2018. In this

background, the whole body disability has to be assessed

at 10%.

10. The claimant claims that she was earning

Rs.15,000/- per month. But she has not produced any

documents to substantiate her claim. Therefore, in the

absence of proof of income, notional income has to be

assessed. According to the guidelines issued by the

Karnataka State Legal Services Authority, for accidents

occurred in the year 2018, notional income shall be taken

at Rs.12,500/- p.m. The claimant was aged about 45

years at the time of the accident and multiplier

applicable to her age group is '14'. Thus, the claimant is

entitled for compensation of Rs.2,10,000/- (Rs.12,500*

12*14*10%) on account of 'loss of future income'. In

view of granting compensation under the head 'loss of

future income', the claimant is not entitled to the

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compensation awarded by the Tribunal under the head

'loss of permanent physical impairment' at Rs.20,000/-.

11. The claimant has produced the original medical

bills in respect of Prestine hospital where she has

undergone surgery. Considering the same, the claimant is

entitled to compensation of Rs.1,00,000/- towards the

medical bills, in addition to Rs.18,000/- awarded by the

Tribunal.

12. The nature of injuries indicates that the claimant

must have been under rest and treatment for a period of 2

months. Consequently, the claimant is entitled for

compensation of Rs.25,000/- (Rs.12,500*2 months) under

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

13. 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 life. Considering

the prolonged pain during treatment as well as the

permanent disability certified by the doctor, I am inclined

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to enhance the compensation awarded by the Tribunal

under the head of 'loss of amenities' from Rs.15,000/- to

Rs.20,000/-.

14. Considering the nature of injuries, the

compensation awarded by the Tribunal under other heads

is just and reasonable.

15. Thus, the claimant is entitled to the following

compensation:

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

 Pain and sufferings                     30,000             30,000

 Medical expenses                        18,000            1,18,000

 Food, nourishment,                       5,000               5,000
 conveyance and attendant
 charges

 Loss of income during laid              18,000              25,000
 up period

 Loss of amenities                       15,000              20,000

 Loss of future income                           0         2,10,000

 Future medical expenses                 10,000              10,000
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  impairment

                Total                   1,16,000     4,18,000

16. In the result, the following order is passed:

ORDER

(i) The appeal is allowed in part.

(ii) The judgment of the Claims Tribunal is modified.

(iii) The claimant is entitled to a total compensation of

Rs.4,18,000/- as against Rs.1,16,000/- awarded by the

Tribunal.

(iv) The Insurance Company is directed to deposit the

compensation amount along with interest @ 6% p.a. from

the date of filing of the claim petition till the date of

realization, within a period of six weeks from the date of

receipt of a copy of this judgment.

Sd/-

(H.T. NARENDRA PRASAD) JUDGE