Karnataka High Court
Miss. C. Sujatha @ Sujatha ... vs Divya. S on 28 June, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.4560/2018 (MV)
BETWEEN:
MISS. C. SUJATHA @
SUJATHA CHALAGONVALASA
D/O RAMAKRISHNA
AGED ABOUT 31 YEARS,
R/AT: NO.1C & 2C,
PLAT NO.3 & 3A,
EOIZ INDUSTRIAL AREA,
ADJACENT TO ITPL
SADARAMANGALA VILLAGE,
K R PURAM HOBLI,
BANGALORE - 560 066.
... APPELLANT
(BY SMT. NALINA KUMARI K.G., ADVOCATE )
AND:
1 . DIVYA. S,
D/O SRIKANTH,
R/AT: NO.3A, SAI SPURTHI APARTMENT,
NO.32, 3RD CROSS, KANAKANAGAR,
R.T. NAGAR,
BANGALORE - 560 032.
(OWNER OF THE CAR BEARING
NO.KA-04-MQ-596)
2 . THE MANAGER,
ICICI LOMBARD GENERAL
INSURANCE CO. LTD,
2
NO.89, 2ND FLOOR,
SUR COMPLEX,
HOSUR MAIN ROAD , MADIWALA,
BANGALORE - 560 068.
... RESPONDENTS
(R1-NOTICE DISPENSED WITH V/O DATED 04-12-2018;
BY SRI. B.C.SHIVANNE GOWDA, ADVOCATE FOR R2)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
01.01.2018 PASSED IN MVC NO.353/2016 ON THE FILE OF
XXI ACMM & XXIII ASCJ, MACT, COURT OF SMALL
CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION; AND ETC.,
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant-claimant under Section-173(1) of the Motor Vehicles Act, challenging the judgment and award dated 01.01.2018, passed in MVC No.353/2016, on the file of XXI A.C.M.M. & XXIII A.S.C.J, MACT, Bengaluru, seeking enhancement of compensation awarded by the tribunal.
2. On 27.10.2015 at about 7.30 p.m. while claimant was crossing the road near JP Margan to 3 Kanthi Sweets, Kadubisinahalli, Bangalore, a car bearing registration No.KA-04-MA-596 being driven by its driver in a rash and negligent manner dashed against the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries. Thereafter, appellant-claimant was shifted to Sakra Hospital, Bangalore and later to Christian Medical College, Vellore. Claimant has undergone surgery and was inpatient for three weeks and was in ICU for two days and also taken follow-up treatment.
3. Before the accident the appellant-claimant was working as Associate Consultant Operations at Tangoe India Softek Services Pvt Ltd., and earning a sum of Rs.18,580/- per month. Due to the injuries sustained in the accident, she was not able to attend the daily work. Hence, the appellant has filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the injuries sustained in the aforesaid accident.
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4. Insurance-company has appeared before the tribunal and contested the matter by filing written statement. It contended that the liability, if any, is subject to terms and conditions of the policy. The Insurance Company further contended that the offending vehicle is not involved in the accident and false case is registered against the said vehicle by colluding with the owner and police.
5. After hearing the learned counsel for both the parties, the Tribunal has awarded a compensation of Rs.76,800/- along with interest at 8% per annum from the date of petition till realization fixing 20% of the contributory negligence on the claimant.
6. Being aggrieved by the aforesaid compensation and contributory negligence, the claimant is before this Court.
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7. Learned counsel for the appellant-claimant submitted that the accident had occurred due to the rash and negligent driving of the driver of the car bearing registration No.KA-04-MQ-596 and respondent No.1 being the owner and respondent No.2 being the insurer of the offending vehicle, are jointly and severally liable to pay the compensation to the appellant. He further submitted that the appellant- claimant was working as Associate Consultant Operations at Tangoe India Softek Services Pvt Ltd. and was drawing a salary of Rs.18,580/- p.m. but the Trial Court has considered only Rs.8,000/- p.m. which is absolutely on the lower side. Learned counsel for the appellant further submitted that the Tribunal grossly erred in holding the contributory negligence on the appellant to the extent of 20%. Hence, he submitted that the total compensation awarded by the tribunal is meager and same requires to be enhanced substantially.
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8. On the other hand, the learned counsel appearing for the respondent No.2 - insurance company submitted that the compensation awarded by the Tribunal is correct and adequate. There is no need to make any interference for enhancement of compensation therefore prays for dismissal of the appeal.
9. The tribunal has granted compensation under various heads as follows:
1. Pain & suffering Rs.40,000/-
2. Medical expenses NIL
3. Loss of income during laid Rs.16,000/-
up period
4. Loss of future income NIL
5. Loss of future amenities and Rs.20,000/-
happiness
6. Attendant, conveyance, food Rs.20,000/-
and nourishment charges TOTAL Rs.96,000/-
10. Ex.P5 is the wound certificate and PW.2 is a doctor who has supported version of the claimant to prove that the appellant had suffered following injuries:
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1) Fracture neck of femur right and
2) Right distal femur intra articular fracture.
As per the medical evidence aforesaid injuries are grievous in nature. Therefore, the compensation of Rs.40,000/- awarded under the head of "Pain & suffering" is correct and does not call for interference at the hands of this Court.
11. The tribunal has not granted any compensation towards medical expenses to substantiate that she has spent the amount towards medical expenses and hospital charges as per medical bills. Therefore, the Tribunal has not awarded any compensation under the head Medical expenses and hospital charges. Perhaps the appellant-claimant must have got reimbursement from her company.
12. Ex.P9 is salary slip which shows that the appellant was receiving salary of Rs.18,580/- per month. The Tribunal has awarded a compensation of Rs.16,000/- under the head of "loss of income during 8 the laid up period". The appellant was working as Associate Consultant operations at Tangoe India Softek Services Pvt. Ltd., The tribunal had opined that the author of the salary slip is not examined. Therefore, a sum of Rs.8,000/- is taken as notional income. The observations of Tribunal in this regard is not correct. Just because the author of the salary slip is not examined that cannot be a ground to reject the salary slip. Due to the injuries above stated the appellant must have been at rest for a period of three months. Hence, considering the monthly income at Rs.18,580/- for three months a compensation of Rs.55,740/- is awarded under the head of "loss of income during the laid up period" and medical treatment period.
13. The tribunal has awarded a compensation of Rs.20,000/- towards loss of future amenities and happiness. This amount calculated by the Tribunal is on lower side. The appellant is a woman aged about 9 29 years as on the date of the accident and it is contended that the appellant was unmarried at the time of accident. Certainly the injuries caused to the appellant i.e., fracture of thigh bone would affect her comfortness i.e., suffering from discomfort, inconvenience in life, loss of enjoyment in life etc., Therefore, a sum of Rs.50,000/- is awarded under the head of "loss of amenities and happiness".
14. Further the tribunal has awarded a sum of Rs.20,000/- towards attendant, conveyance, food and nourishment charges, which is found to be on lower side. The appellant had undergone treatment initially for a period of fourteen days as inpatient i.e., from 30.10.2015 to 14.11.2015 and undergone surgery and appellant is also required to undergo further treatment periodically. Therefore, considering all these aspects, a sum of Rs.35,000/- is awarded under the head "attendant, conveyance, food and nourishment charges".
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15. Further, the appellant has suffered fracture to the femur and surgery was conducted. Certainly some rod and nails were fixed and for removal of the same the appellant has to spend some expenses towards future medical expenses. Therefore, a sum of Rs.15,000/- is awarded under the head of "future medical expenses".
16. The tribunal had apportioned negligence between the claimant and driver of the car as per 20:80. Therefore, learned counsel for the appellant submitted that there is no negligence on the part of the appellant and accident was entirely due to the rash & negligent driving by the driver of the car and prays to attribute 100% negligence on the part of the driver of the car.
17. When the appellant was crossing the road near JP Margan to kanthi sweets, Kadubisinahalli, Bangalore at that time the driver of the car while 11 driving had hit the appellant. Therefore, the tribunal on the ground that since the appellant was not crossing the road at zebra crossing, attributed 20:80 of contributory negligence between the appellant and the driver of the car. Considering the place of accident, which is just outskirt of Bangalore city while the appellant was crossing the road near JP Margan to Kanthi sweets, Kadubisinahalli, Bangalore, there were many shops and other commercial business activities, commercial building and houses near the place of the accident. Therefore, in these circumstances, it is the duty of the driver of the vehicle to be cautious and at the same time, the appellant ought to be cautious while crossing the road which is not zebra crossing. Therefore, this court is of the opinion that the appellant has also contributed her negligence to some extent and it can be held 10% on the part of the appellant since it is outskirt of Bangalore and there are houses and other business activities in and around 12 the place of accident. Accordingly, 90% negligence is attributed on the part of the driver of the car and 10% on the part of the appellant. Therefore, the contributory negligence is modified to the extent of 10:90% between the appellant and driver of the car.
18. Thus in all the appellant is entitled for a compensation under various heads as follows:
Sl Particulars Amount
No.
1. Pain & suffering Rs.40,000/-
2. Medical expenses Rs.15,000/-
3. Loss of income during laid Rs.55,740/-
up period
4. Loss of future amenities and Rs.50,000/-
happiness
5. Attendant, conveyance, food Rs.35,000/-
and nourishment charges
TOTAL 1,95,740.00
Less: 10% negligence 19,574.00
attributed by the petitioner
Total compensation to be 1,76,166.00
paid by respondent
19. Accordingly, I pass the following:
ORDER i. The appeal is allowed in part. 13 ii. The appellant is entitled for an additional compensation of Rs.1,76,166/- (Rupees One Lakh Seventy Six Thousand One Hundred and Sixty Six Only), along with interest at 6% per annum from the date of filing of the petition till deposit in addition to what has been awarded by the Tribunal.
iii. 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.
iv. Draw award accordingly.
Sd/-
JUDGE DS