Karnataka High Court
Smt. Selvi vs Karnataka Government Insurance ... on 24 February, 2020
Bench: Alok Aradhe, Ravi V Hosmani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
MFA NO. 1622 OF 2016(MV-I)
BETWEEN:
Smt. Selvi
W/o Late Venkatesha
Aged about 32 years,
R/o No.52, 12th Main,
Uttara Mariyappana Palya,
K.P.Agrahara,
Bangalore -23.
... APPELLANT
(By Shri.H.B. Somapur, Advocate)
AND:
1. Karnataka Government
Insurance Department,
By its Director,
Motor Branch,
V.V.Tower,
Ambedkar Veedhi,
Bangalore-1
2. The Assistant Executive Engineer,
No.1, BWSSB, Chhik Lalbagh,
Central, Bangalore- 53. ... RESPONDENTS
(By Sri. S.S. Mahendra, A.G.A. for R.1)
V/o dated 21.11.2017 notice to R.2 is dispensed with.
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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 26.09.2015 PASSED IN MVC NO.2560/2014 ON THE FILE OF
THE IX ADDITIONAL SMALL CAUSES JUDGE, AND XXXIV ACMM,
MEMBER, MACT-7, COURT OF SMALL CAUSES, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSAITION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, RAVI
V. HOSMANI J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal has been filed by the claimant-appellant under Section 173(1) of the Motor Vehicles Act, 1988 against the impugned judgment dated 26.9.2015 in MVC No.2560/2014 passed by the Motor Accident Claims Tribunal, IX Small Causes Judge and XXXIV ACMM, Court of Small causes (SSH-7), Bangalore (hereinafter referred to as the 'Claims Tribunal') seeking enhancement of the amount of compensation.
2. The brief facts leading to filing of this appeal are that on 15.04.2014, at about 9.20 A.M. the claimant was crossing Cottonpet Main road, near Agis Auto Gas. When she had crossed 80% of the road, the driver of the lorry bearing registration No.CAW-245, who was driving the vehicle in a rash and negligent manner came from Cotton 3 pet towards Briyand Circle and dashed against the claimant. Due to the accident, she sustained crush and degloving injury over her left leg, fracture of both bones of the left leg and lower 1/3 raw area with calcaneum exposed and also injuries all over the body. Immediately she was shifted to Victoria Hospital, where she took inpatient treatment She was operated thrice. Despite treatment, she suffered permanent disability.
3. Seeking compensation to the tune of Rs.20,00,000/-, MVC No.2560/2014 was filed under Section 166 of the Motor Vehicles Act, 1989, against the respondents No.1 and 2. On service of notice, the respondents entered appearance and filed their separate written statements denying the averments made in the claim petition. They also alleged contributory negligence on the part of the claimant.
4. The claims Tribunal after framing issues, recorded the evidence of the parties. The claimant examined herself as P.W.1 and three other witnesses as P.Ws.2 to P.W.4. The documents namely, exhibits P.1 to P.22 were 4 marked. The respondents have not chosen to adduce either oral or documentary evidence.
5. The Claims Tribunal vide impugned judgment held that the claimant had also contributed to the accident to an extent of 20% and apportioned negligence against the lorry driver at 80%. The Claims Tribunal assessed the compensation at Rs.6,14,202/- with interest at the rate of 6% per annum and awarded Rs.10,000/- towards future medical expenses against the respondents No.1.
6. Challenging the award, the claimant is in appeal. Heard the learned counsel for the parties and perused the record.
7. Sri. H.B.Somapur, learned counsel for the appellant-claimant, firstly submitted that, despite the charge sheet being filed against the driver of the lorry for rash and negligent driving and causing the accident, and despite the respondents failing to lead any evidence, the Claims Tribunal has erroneously held that there was 5 contributory negligence to an extent of 20% on the part of the claimant. It was also contended that the assessment of functional disability and loss of earning capacity by the Claims Tribunal was on the lower side. The doctor, who was examined as P.W.3 has assessed the disability of 52% to the left lower limb and 26% to the whole body. Though the disability affects her earning capacity directly, the Claims Tribunal has considered loss of earning capacity at 20% only. In support of the aforesaid contention, the learned counsel relied upon the decision of the Hon'ble Supreme Court in "NAGARAJAPPA VS. DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LIMITED, AIR 2011 SC 1785."
8. On the other hand, the learned Additional Government Advocate, submitted that there was no pedestrian crossing at the spot of the accident. Therefore, the claimant herself was responsible for the accident. It was further contended that without adequate 6 proof the Claims Tribunal has taken the monthly earning of the claimant at Rs.9,000/-, whereas, it ought to be Rs.8,500/- p.m., as per the guidelines adopted by the Karnataka State Legal Services Authority. He justified the award of amount of compensation under other heads.
9. Heard the learned counsel and perused the record. The road in question being within the city limits, every driver is expected to anticipate pedestrians crossing the road and the driver taking sufficient care and caution to avoid accident. The chargesheet filed against the lorry driver remains unchallenged. Even the lorry driver is not examined. Thus, adverse inference has to be drawn and the entire negligence for causing the accident would be on the part of the lorry driver. Hence, the finding with regard to contributory negligence against the claimant is set aside and the driver of the lorry is held responsible for causing the accident.
10. In the case in hand, the claimant is a coolie, aged about 35 years. The multiplier applicable would be 7 "16". In the absence of specific proof regarding income, the notional income as per the guidelines adopted by the Karnataka State Legal Services Authority has to be considered. Since the date of the accident is 15.4.2014, Rs.8,500/- per month has to be considered as the monthly income. As per the evidence of P.W.3, Dr. B Ramesh, the claimant has suffered permanent disability to the left lower limb at 52%. P.W.3 has mentioned the injuries sustained, treatment taken by the claimant and also the nature of disability in his examination-in-chief. The relevant extract of which reads as under:
" 3. I submit that , on examination, I found the following disabilities:
i) Extensive scar over left leg
ii) Walks with limp
iii) Tenderness over left ankle with infected would over heel.
iv) Restriction of joint movements of left ankle.
v) Planter Dosriflexion 50 degree, normal 0- 70 degree.
vi) Difficult to squat on floor.
vii) Difficult to sit crossed leg.
viii) Difficult to climb upstairs.
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ix) Difficult to walk on slope.
x) Difficult to stand on a affected limb.
4. I submit that, radiological examination shows following Fracture united with implants in situ medial malleolous.
5. I submit that, she needs further treatment for removal from medal malleolous and non-healing ulcers over heel.
6. I submit that based on the age, nature of injury, duration of treatment, clinical and radiological examination, based on guidelines of DGHS GOVT OF INDIA AIIMS WHO, she suffers total permanent physical disability of 52% to the left lower limb and 26% to the Whole body. "
11. The disability is required to be considered in the light of the occupation of the claimant, therefore, the assessment of loss of earning capacity at 20% by the Claims Tribunal cannot be sustained. The claimant is required to stand and work as mason. Therefore, the disability suffered would definitely come in the way of her earnings. Looking to the functional disability and the 9 claimant's occupation and having regard to the law laid down by the Hon'ble Supreme Court in Nagarajappa's case (supra), the loss of earning capacity is assessed at 50% instead of 20%. Thus, the compensation towards loss of future earnings will be Rs.8,500 X 50% X 12 X 16 = Rs.7,68,000/-. The same is awarded to the claimant.
12. Having regard to the injuries suffered and the duration of treatment, the compensation towards pain and suffering is enhanced to Rs.75,000/-. Considering the nature and extent of disability, the compensation towards loss of amenities is enhanced to Rs.50,000/-. Thus, to the extent mentioned above the award passed by the Claims Tribunal is modified.
13. Considering the occupation of the claimant, it is ordered that 75% of the enhanced compensation shall be kept in fixed deposit for a period of five years with provision for withdrawal of interest accrued every three months.
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14. The claimant is also entitled for interest at the rate of 6% p.a. on the enhanced compensation from the date of the petition till realization.
Accordingly, the appeal is disposed of.
Sd/-
JUDGE Sd/-
JUDGE Psg*