Karnataka High Court
Smt Lakkamma vs B Nagaraju on 2 December, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.3909/2014 (MV)
BETWEEN:
SMT. LAKKAMMA
W/O. HONNAPPA,
AGED ABOUT 45 YEARS,
R/AT KODIHALLI VILLAGE,
A.K. COLONY, KANASAWADI POST,
MADURE HOBLI,
DODDABALAPURA TALUK,
BENGALURU RURAL DISTRICT
SINCE DEAD REPRESENTED BY
HER LEGAL REPRESENTATIVES
1(a) SRI HONNAPPA
SON OF LATE MUNIYAPPA
AGED ABOUT 77 YEARS
1(b) SMT. VENKATALAKSHMI
DAUGHTER OF SMT. LAKKAMMA
WIFE OF CHANNAIAH
AGED ABOUT 45 YEARS
RESIDING AT CHIKKANAHALLI VILLAGE
THYAMAGONDALU HOBLI
NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562 123.
1(c) SRI MUNIRAJU
SON OF SRI HONNAPPA
2
AGED ABOUT 38 YEARS
1(d) SMT. HONNAMMA @ JYOTHI
DAUGHTER OF SMT. LAKKAMMA
WIFE OF NARASIMHAIAH
AGED ABOUT 36 YEARS
RESIDING IVARAGONDAPURA
HESARAGHATTA HOBLI
BENGALURU-560 089.
1(e) SMT. SUNEETHAMMA
DAUGHTER OF SMT. LAKKAMMA
WIFE OF VIJAYKUMAR
AGED ABOUT 30 YEARS
SHANTHINAGAR
B.R.P. POST
BHADRAVATHI TALUK
SHIVAMOGGA DISTRICT.
APPELLANTS 1(a) AND 1(c) ARE
RESIDING AT KODIHALLI VILLAGE
A.K. COLONY, KANASAWADI POST
MADURE HOBLI
DODDABALLAPURA TALUK
BENGALURU RURAL DISTRICT-561 203. ... APPELLANTS
(BY SRI PRASAD P., ADVOCATE)
AND:
1. B. NAGARAJU
S/O. BASAVARAJU,
AGED ABOUT 37 YEARS,
RESIDING AT NO.326
SURVEY NO.17
SONENAHALLI GRAMA
MARUTHI NAGARA
DODDABASATHI
BENGALURU-560 056.
3
2. NATIONAL INSURANCE COMPANY,
NO.9, I FLOOR, LINGARAJU COMPLEX,
ABOVE FOOD WORLD,
GANDHI BAZAAR MAIN ROAD,
BASAVANAGUDI,
BENGALURU-560 004. ... RESPONDENTS
(BY SMT. H.R. RENUKA, ADVOCATE FOR R2;
VIDE ORDER DATED 09.02.2016, NOTICE TO R1 IS
DISPENSED WITH)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 05.02.2014
PASSED IN MVC NO.2004/2011 ON THE FILE OF THE VI
ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL
CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS M.F.A. COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and learned counsel for the respondent No.2-Insurance Company.
This appeal is filed challenging the judgment and award dated 05.02.2014 passed in M.V.C.No.2004/2011 on the file of the VI Additional Judge, Member, MACT, Court of Small Causes, Bengaluru City (SCCH-2) ('the Tribunal' for short). 4
2. The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.
3. The factual matrix of the case of the claimant before the Tribunal is that in the accident occurred on 10.10.2010, he had suffered compound fracture of tibia and fibula i.e., Type-II fracture and he was inpatient for a period of 29 years. In support of his contention, he also examined the Doctor, who assessed the disability at 51% to right lower limb and 25% to whole body. However, the Tribunal has taken only 20% of the disability and also taken 20% of contributory negligence on the part of the claimant and only awarded 80% of the compensation. Hence, the present appeal is filed before this Court.
4. The main contention of the learned counsel for the appellant is that the Tribunal committed an error in not noticing the documents of Exs.P1 to P5 and the fact that charge sheet was filed against the driver of the offending vehicle and inspite of it, the Tribunal has taken 20% of the contributory negligence on the part of the claimant and the same is erroneous. The 5 learned counsel for the claimant also would submit that the income was taken at Rs.4,000/- per month and it was the accident of the year 2010 and the notional income would be Rs.5,500/- and the disability assessed by the Doctor is not taken into consideration by the Tribunal. The counsel would further contend that the compensation awarded towards loss of future income and loss of income during laid up period are very meager and the compensation awarded on the head of food, diet, nourishment and conveyance is also on the lesser side and no compensation is awarded towards loss of amenities. Hence, it requires interference of this Court.
5. Per contra, the learned counsel appearing for the respondent would submit that towards pain and sufferings, the Tribunal has awarded an amount of Rs.50,000/- and the same is on the higher side and apart from that the Tribunal after considering the evidence on record, has taken 20% of disability and ought to have taken 1/3rd based on the assessment made by the doctor and if it is taken 1/3rd, it comes to 17% of disability, hence, taking the disability of 20% is on the higher side. 6
6. Having heard the respective counsel for the parties and also on perusal of the material on record and also considering the contributory negligence, in the cross- examination of PW1, she categorically admitted that she crossed the road where there was no zebra crossing and when such material is available on record before the Tribunal, when the claimant crossed the road when there is no provision to cross the road, the very contention of the counsel for the claimant that contributory negligence taken is on the higher side cannot be accepted. However, the counsel for the claimant relied upon the judgment reported in 2013 (3) KLJ 643 in the case of SARAVANA vs T KIRAN VINOD KUMAR AND ANOTHER wherein this Court held that the contributory negligence on the part of the victim/pedestrian is only 15% and taking of 30% is reduced. However, this Court has to take note of the material on record. Here is a case of no provision to cross the road and also no zebra crossing and after crossing the road divider made an attempt to cross the road and also she has noticed the vehicle coming at the distance of one furlong and also admits that by calculating in her mind, she tried to cross the road before 7 reaching the motorcycle and hence, the reasoning given by the Tribunal is not erroneous and rightly taken the contributory negligence of 20% and hence, no grounds are made out to reduce the same.
7. Now coming to the aspect of quantum of compensation is concerned, the Tribunal has awarded the amount of Rs.50,000/- towards pain and sufferings and here is a case of compound fracture of fibula and tibia and hence, the same is just and reasonable and does not require any interference.
8. The Tribunal has awarded the amount of Rs.1,05,600/- towards loss of future income taking the income of Rs.4,000/- per month. It is the accident of the year 2010 and the notional income would be Rs.5,500/- and the age of the claimant at the time of the accident was 51 years hence, the relevant multiplier would be 11 and taking the 20% disability, it comes to Rs.1,45,200/- (5,500x12x11x20%) as against Rs.1,05,600/-.
8
9. The Tribunal has awarded the compensation of Rs.16,000/- towards medical expenses and apart from that Rs.500/- each awarded towards conveyance, attendant charges and food and nourishment hence, in all coming to Rs.1,500/- and awarded compensation of Rs.59,500/- towards medical expenses and the same does not require any interference.
10. The Tribunal has awarded the amount of Rs.16,000/- on the head of loss of income during laid up period taking the income of Rs.4,000/- and when she had suffered the fracture of tibia and fibula that is also compounded fracture and type-II fracture and she was in the hospital for a period of 29 days, it is appropriate to take the loss of income for a period of 5 months hence, it comes to Rs.27,500/- (5,500x5).
11. The Tribunal has not awarded compensation on the head of loss of amenities and having considered the age of the claimant as 51 years and she has to lead her rest of life with the disability of 20%, hence, it is appropriate to award an amount of Rs.40,000/- towards loss of amenities.
9
12. The Tribunal also awarded the amount of Rs.20,000/- towards future medical expenses and also it is evident from the records that fractures are united and there is no mal-union and only for the removal of implant as per the evidence of PW3, Tribunal has rightly awarded the amount of Rs.20,000/- towards future medical expenses.
13. Hence, in all the compensation of Rs.3,42,200/- is awarded and out of the said amount, the claimant is entitled for 80% of the enhanced compensation amount.
14. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award of the Tribunal dated 05.02.2014 passed in M.V.C.No.2004/2011 is modified granting compensation of Rs.3,42,200/- as against Rs.2,51,100/- with interest at 6% per annum on the enhanced amount from the date of petition till deposit.10
(iii) The claimant is entitled for 80% of the enhanced compensation amount.
(iv) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.
(v) The Registry is directed to transmit the records to the concerned Tribunal, forthwith, if any.
Sd/-
JUDGE ST/SN