Karnataka High Court
Uma B K vs Cholamandalam M. S on 22 June, 2023
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NC: 2023:KHC:21755
MFA No. 6104 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 6104 OF 2018 (MV-I)
BETWEEN:
UMA B K, W/O SRINIVASA.K,
AGED ABOUT 46 YEARS,
R/AT NO. 2122/A, 3RD CROSS,
NEAR RAILWAY BRIDGE,
SRI RAM LAYOUT,
KENGERI SATELLITE TOWN,
BENGALURU - 560 060.
...APPELLANT
(BY SRI N KUMAR, ADVOCATE)
AND:
1. CHOLAMANDALAM M. S,
GENERAL INSURANCE COMPANY LIMITED,
Digitally UNIT NO. 04, 9TH FLOOR,
signed by T S
NAGARATHNA 06 GOLDEN HEIGHTS COMPLEX,
Location: High
Court of 59TH "C" CROSS, RAJAJINAGAR,
Karnataka
BENGALURU - 560 010.
2. SRI VENKATESH R,
S/O RAMESH, AGED ABOUT 25 YEARS,
RESIDENT OF SHIVANAPURA VILLAGE,
HOSAKOTE TALUK,BENGALURU.
...RESPONDENTS
(BY SRI PRADEEP.B, ADVOCATE FOR R1;
APPEAL AGAINST R2 IS DISMISSED V/O DATED 20.01.2020.)
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NC: 2023:KHC:21755
MFA No. 6104 of 2018
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 07.06.2018 PASSED IN MVC
NO.3655/2016 ON THE FILE OF THE XXI ACMM & XXIII ASCJ
COURT OF SMALL CAUSES AND MACT, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
By the consent of learned counsel for both the parties, the matter is taken up for final disposal, though it is slated for Admission.
This is an appeal by the petitioner against judgment and award in MVC No.3655/2016 passed by the learned XXI ACMM & XXIII ASCJ Court of Small Causes and MACT, Bengaluru, dated 07-06-2018, whereby a sum of Rs.48,000/- has been awarded as compensation and directed the respondent No.2-owner of the offending vehicle to deposit the same.
2. The brief facts of the case are as below:
That on 25.02.2016 at about 7.30 p.m., while the petitioner was traveling in a bike bearing Reg.No.KA-03- -3- NC: 2023:KHC:21755 MFA No. 6104 of 2018 HQ-8088 as a pillion rider, near LRD Signal, Millars Road, a Maruthi Ritz Car bearing Reg.No.KA-52-C-2014 driven by its driver came with high speed in a rash and negligent manner and dashed against the bike in which the petitioner was going from the back side. As a result, the petitioner fell down and sustained grievous injuries. It was further case of the petitioner that, immediately she was shifted to Mallige Hospital, Bangalore, wherein she took treatment and discharged with advice of bed rest for one month and till today she is under follow up treatment. Before the accident, petitioner was hale and healthy working as Accounts Manager at VST Auto Ancillaries Pvt. Ltd., and drawing salary of Rs.60,000/- per month and due to accidental injuries, she has suffered permanent disability. Therefore, it is contended that the respondents being the Insurer and the RC owner of the offending vehicle Maruthi Ritz Car are jointly and severally liable to pay compensation to the Petitioner. -4-
NC: 2023:KHC:21755 MFA No. 6104 of 2018
3. On issuance of notice, the respondent No.1 appeared before the Tribunal and filed written statement. Inspite of due service of notice, the respondent No.2 did not appear before the Tribunal and he was placed ex- parte.
4. The respondent No.1-Insurance Company in the written statement has specifically denied the issuance of insurance policy in respect of offending vehicle and its validity as on the date of accident. It has denied the negligence of the driver of offending vehicle and contented specifically that, the petitioner has suffered self accident. It has further contended that the driver of the offending vehicle and petitioner were not holding valid and effective driving license as on the date of accident and there was breach of terms and conditions of the policy and also contended that the compensation claimed by the petitioner is highly exorbitant, imaginary and untenable in law and has sought for dismissal of the petition. -5-
NC: 2023:KHC:21755 MFA No. 6104 of 2018
5. On the basis of the above pleadings, the Tribunal framed appropriate issues and petitioner examined herself as PW1 and Exs.P1 to P12 were marked. The employer of the petitioner was examined as PW2 and Exs.P13 to 20 were marked. On behalf of respondent No.1, one witness was examined as RW1.
6. After hearing the arguments by both the sides, the Tribunal partly allowed the petition, directed the respondent No.2-owner of the offending vehicle to deposit the compensation of Rs.48,000/- under the following heads:
Towards pain and sufferings Rs.10,000/- Towards medical expenses Rs.27,975/- Conveyance, transportation and other Rs.10,000/-
incidental expenses Total Rs.47,975/- Rounded off to Rs.48,000/-
7. Aggrieved by the said judgment, the petitioner is before this Court seeking enhancement.
8. On issuance of notice, respondent No.1 appeared before this Court and the appeal against respondent No.2 came to be dismissed.-6-
NC: 2023:KHC:21755 MFA No. 6104 of 2018
9. The arguments by the learned counsel for the appellant and the learned counsel for respondent No.1- Insurance Company were heard. The Tribunal records have been secured and perused the same.
10. The learned counsel appearing for the appellant submits that though the petitioner had sustained simple injury as per wound certificate, in fact, it was not a simple injury, but it involved tear of the ligament of knee. He contends that MRI report and Radiology report produced by the petitioner before the Tribunal at Exs.P10 and P11 show that there was high grade tear of anterior cruciate ligament and therefore, it should have been termed as grievous injury. He further contends that the compensation awarded by the Tribunal under other heads are also meager and therefore, the Tribunal has erred in awarding the just compensation to the petitioner.
11. Per contra, learned counsel for the respondent No.1- Insurance Company contends that the Tribunal has awarded just compensation to the petitioner and there was -7- NC: 2023:KHC:21755 MFA No. 6104 of 2018 no such discernable grievous injury and it was only a edema in the knee of the petitioner and as such, the compensation awarded by the Tribunal was proper and correct. He contends that wound certificate issued by Mallige Hospital at Ex.P7 shows that it was simple injury and therefore, the Tribunal is justified in awarding the compensation to the extent of Rs.48,000/-.
12. A careful perusal of the documents produced by the petitioner disclose that she had suffered simple injury as per Ex.P7 wound certificate. However, the Ex.P10 which is the MRI report and other documents produced by her show that there was a tear of the ligament. Ex.P11- radiology report shows the diagnoses of the injury sustained by the petitioner are as below:
"Impression
1. Features suggestive of high grade tear of anterior cruciate ligament.
2. Features suggestive of partial tear of proximal segment of lateral collateral ligament.
3. Features suggestive of partial tear of both medical and lateral patellar retinacula. -8-
NC: 2023:KHC:21755 MFA No. 6104 of 2018
4. Features suggestive of contusion involving posterior aspects of both condyles of tibia and inferior aspect of lateral femoral condyle.
5. Fluid collection noted along lateral aspect of the knee joint".
13. Thus, it is evident that there was an injury which cannot be termed as simple, but at the same time, cannot be termed to be grievous which can be equated to a fracture. Under these circumstances, the compensation awarded by the Tribunal needs to be re-assessed by this Court.
14. It is evident that there was a ligament tear and therefore, the compensation awarded by the Tribunal under the head of pain and sufferings needs to be enhanced to Rs.20,000/-.
15. The Tribunal has awarded a sum of Rs.28,000/- under the head of medical expenses as against the bills produced by her to the extent of Rs.27,975/-. Therefore, no enhancement is permissible in respect of the medical expenses.
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NC: 2023:KHC:21755 MFA No. 6104 of 2018
16. The petitioner has produced the bills to show that she had engaged a taxi for her conveyance. The Tribunal has assessed the same at a global basis and awarded a sum of Rs.10,000/-. In fact, the bills disclose that the petitioner has spent Rs.18,000/- in respect of the conveyance and other expenses. There was no reason for the Tribunal to award lesser compensation under this head. Therefore, the petitioner is entitled for a sum of Rs.18,000/- under the head of conveyance and other expenses.
17. Though the petitioner has contended that she was earning Rs.60,000/- and there is loss of income etc., the period for which she was on leave on the account of the injuries sustained by her is not available on record. Though the employer has been examined as PW2, he speaks about the salary of the petitioner as well as the fact that she was on leave for 8 days. Therefore, it is evident that the petitioner could have encashed her leave to the extent of 07 days . Under these circumstances, a
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NC: 2023:KHC:21755 MFA No. 6104 of 2018 sum of Rs.7,000/- is awarded to her in respect of the loss of leave on account of the injuries sustained by her. Hence, the petitioner is entitled for a total compensation of Rs.73,000/- as below:
Towards pain and sufferings Rs.20,000/- Towards medical expenses Rs.28,000/- Conveyance, transportation and other Rs.18,000/- incidental expenses Loss of leave for a period of 7 days Rs. 7,000/-
Total Rs.73,000/- Less: awarded by the Tribunal Rs.48,000/- Enhancement Rs.25,000/-
18. The learned counsel for the respondent No.1-
Insurance Company fairly submitted that the copy of the insurance policy of the offending vehicle was furnished by the respondent No.2 and on its verification, it is found to be valid. In view of the said submission, the liability has to be fastened on the respondent No.1-Insurance Company by absolving the owner of the vehicle.
19. Thus, the petitioner is entitled for a sum of Rs.25,000/- with interest in addition to what has been awarded by the Tribunal from respondent No.1-Insurance company. Hence, the following:
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NC: 2023:KHC:21755 MFA No. 6104 of 2018 ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award of the Tribunal is modified by awarding a sum of Rs.25,000/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its deposit and fastening liability on respondent No.1-Insurance Company.
(iii) The respondent No.1-Insurance Company is directed to deposit the compensation amount within a period of six weeks.
(iv) The rest of the conditions imposed by the Tribunal are unaltered.
Sd/-
JUDGE tsn* List No.: 1 Sl No.: 75