Karnataka High Court
Smt.Yashoda vs Shri.Malagouda on 3 February, 2017
Author: K.Somashekar
Bench: K.Somashekar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 3RD DAY OF FEBRUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA NO.20703/2013 (MV)
BETWEEN
SMT. YASHODA, W/O FAKIRAPPA DHAVALI.
AGE;54 YEARS, OCC: COOLIE AND
HOUSE HOLD. NOW NILL,
R/O VAKKUND. TQ;BAILHONGAL,
DIST; BELGAUM.
... APPELLANT
(BY SRI. HANUMANTH R.LATUR , ADV.)
AND
1. SHRI. MALAGOUDA S/O NAGAPPA GIDAGER
AGE; 50 YEARS, OCC; BUSINESS,
R/O :H.NO.-450, AT POST: HUDALI,
TQ & DIST; BELGAUM.
2. THE NEW INDIA ASSURANCE CO. LTD.,
REPRESENTED BY ITS DIVISIONAL MANAGER,
D.O.CLUB ROAD, BELGAUM.
... RESPONDENTS
(BY SRI.R.R.MANE, ADV. FOR R2,
NOTICE TO R1 IS HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, AGAINST THE JUDGEMENT AND AWARD
DATED 27-09-2012 PASSED IN MVC NO.2916/2011 ON THE FILE
OF THE PRL. SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT,
BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR
:2:
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and the learned counsel for the respondent.
2. The factual matrix of the appeal are as under:
On 11.11.2010 at about 02:45 a.m. the appellant was travelling in a mini bus bearing No.KA-22/B-2727 on Poona Bangalore road, near Bhorgav and at that time, driver of the said mini bus drove the same in rash and negligent manner and dashed to a tree and caused accident. The appellant sustained mal-united compression fracture of T-12 and L-1 and sustained the disability at 25% to lumber spine and 15% to thoracic spine totally 40%. The appellant got treatment in District Hospital, Belgaum and thereafter at KLE Hospital, Belgaum as inpatient for 9 days and undergone for various type of operations. Prior to the accident, the appellant was 65 years old and doing coolie work and earning Rs.6,000/- per month Due to the said injuries she lost her earning :3: capacity. Therefore, the appellant filed the claim petition before the Principal Senior Civil Judge and Additional MACT, Belgaum in MVC No.2916/2011 claiming the compensation against the respondents, but the Court below has awarded the compensation of Rs.1,28,730/- with interest at 6% per annum. Being aggrieved by the impugned award, the appellant has preferred this appeal seeking enhancement of compensation.
3. The appellant in order to establish her case, examined herself as P.W.1 and other witnesses as P.Ws.2 to 5 and got marked documents at Exs.P-1 to P30. On the part of the respondent, R.W.1 examined and got marked documents at Exs.R1 and R2.
4. Whereas, the learned counsel for the appellant during the course of his argument has contended that Tribunal has awarded compensation of Rs.25,200/- towards loss of income due to disability, by considering the income of the appellant at Rs.3,000/- per month, considering the disability at 10% and considering the multiplier at 7 even though the appellant sustained mul-united compression fracture of T-12 and L-1 and sustained :4: the disability at 40% to spine and she was earning Rs.6,000/- per month. Therefore, the award passed by the Court below is liable to be enhanced, keeping in view of the evidence adduced by the appellant/claimant.
5. It is further contended that the Tribunal has awarded compensation of Rs.40,000/- towards pain and suffering which is on lower side, though the evidence adduced by the appellant/claimant to establish the case for enhancing the compensation. It is further contended that the Tribunal has awarded compensation of Rs.14,530/- towards medical and ancillary expenses which is on lower side and the Tribunal has awarded compensation of Rs.9,000/- towards loss of income during treatment is also on lower side. Therefore, the learned counsel for the appellant prays to consider these aspects, as urged in this appeal and accordingly enhance the compensation.
6. On the contrary, learned counsel for the respondent/Insurance Company has vehemently contended that it does not call for interference of the impugned judgment and award passed by the Court below. As considering the evidence of :5: P.Ws.1 to 5 and also documents, Exs.P-1 to P-30 and also the evidence of R.W.1 as well as the documents, Exs.R-1 and R-2, by the Tribunal it has granted compensation. Accordingly, the learned counsel for the respondent defends the same.
7. However, learned counsel for the appellant during the course of his argument has placed the reliance of the judgment of Hon'ble Supreme Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 and keeping in view of the ratio of the reliance and also the contention taken by the learned counsel for the appellant, it calls for interference. Accordingly, as per the ratio of reliance placed by the learned counsel for the appellant, the income of the appellant is taken at Rs.5,500/- and as the appellant sustained mul-united compression fracture of T-12 and L-1, the disability would be taken at 30% and considering the multiplier at 7, the loss of future income due to disability is worked out to as follows:
Rs.5,500/- X 12 X 7 X 13% = 60,060/-:6:
8. Further, the loss of income during treatment it is enhanced from Rs.9,000/- to Rs.16,500/- and the remaining heads passed by the Court below are undisturbed. Accordingly, the appellant is entitled for the enhanced compensation is as follows:
Sl.
Particulars Amount
Nos.
1 Pain and sufferings Rs.40,000/-
2 Medical and ancillary expenses Rs.14,530/-
3 Loss of income during treatment Rs.16,500/-
4 Loss of future income due to disability Rs.60,060/-
5 Loss of amenities and future Rs.40,000/-
unhappiness
Total Rs.1,71,090/-
Less: Total compensation awarded by Rs.1,28,730/-
Tribunal
Total enhanced compensation Rs.42,360/-
In view of the aforesaid reasons and findings, I proceed to pass the following:
ORDER
i) The appeal filed by the appellant is hereby allowed.
ii) The appellant is entitled to the enhanced compensation of Rs.42,360/- with interest at :7: 6% per annum from the date of petition till its realization.
Sd/-
JUDGE Rsh