Karnataka High Court
Shirubai @ Sharada D/O Babu Chavan vs Kgid Motor Branch Banglore And Anr on 21 October, 2021
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF OCTOBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA No. 31478/2013 (MV)
BETWEEN
SHIRUBAI @ SHARADA D/O BABU CHAVAN
AGE: 20 YEARS, OCC. NIL (EARLIER COOLIE)
R/O HALLUR, TQ. MUDDEBIHAL
...APPELLANT
(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND
1. KGID MOTOR BRANCH BANGLORE
THROUBGH KGID DIST. OFFICE, BIJAPUR
2. EXECUTIVE ENGINEER KBJNL
ARBC DIVISION, ALAMATTI
...RESPONDENTS
(BY SRI SANJAY M. JOSHI, ADVOCATE FOR R2;
R1 SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 22.5.2012 PASSED IN
MVC NO. 107/2009 ON THE FILE OF THE ACCIDENT
CLAIMS TRIBUNAL NO.VIII AT MUDDEIBHAL, PARTLY
2
ALLOWING THE CLAIM PETITION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 (for short 'M. V. Act') against the judgment and award dated 22.05.2012 passed in MVC No.107/2009 on the file of the Accident Claims Tribunal No.VIII at Muddebihal (for short 'Tribunal').
2. The facts leading to filing of the present appeal briefly stated are that, on 20.11.2008, at about 4.00 p.m., when the claimant was crossing the road near Nidagundi village, a jeep bearing registration No.KA-28/M-4161 (henceforth referred as 'offending vehicle') belonging to the respondent No.1 driven by its driver in a rash and negligent manner, hit the claimant, causing the accident and ran over the claimant. Due to the impact, the claimant sustained injuries, such as, fracture of both bones 3 of both legs, fracture of ribs on both sides and fracture of hip. She also sustained injuries to her eye and disfigurement of face. The claimant has expended huge amount towards her treatment. Thereupon, the claimant has filed a claim petition under Section 166 of the M.V.Act seeking compensation of `10,70,000/- on the ground that she was hale and healthy, aged about 20 years and was earning `6,000/- per month as collie and that the accident was caused due to rash and negligent driving of the offending vehicle by its driver, resulting in grievous injuries to her and due to the same, she is not able to carry out her regular work as she was doing earlier.
3. Upon service of notice, though respondent Nos.1 to 3 have appeared through their counsel, only respondent No.3 - Executive Engineer, KBJNL has filed its statement of objections, denying the petition averments, age, occupation and income of the claimant. It contended that the accident occurred due to the sudden crossing of the road by the claimant and the claimant alone was 4 responsible for the accident in question. It is further contended that the driver of the offending vehicle was having a valid and effective driving licence to drive the same. That the vehicle was insured with the respondent No.2 - KGID Motor Branch, Bengaluru and the policy was valid. Hence, sought for dismissal of the claim petition.
4. The Tribunal based on the pleadings of the parties, framed issues and recorded evidence. The claimant examined herself as PW.1 and one doctor namely, U.S.Nagur has been examined as PW.2. Eighteen documents were exhibited as Exs.P1 to P18. No evidence has been led in on behalf of the respondents.
5. The Tribunal after appreciating the evidence of the parties held that the accident occurred due to rash and negligent driving of the offending vehicle by its driver and consequently held that the claimant is entitled for compensation as follows:
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Pain and suffering `40,000/-
Loss of comforts `3,000/-
Expenses for attender `3,000/-
Loss of marital status `50,000/-
Compensation for `20,000/-
disfigurement
Loss of future income `64,800/-
(300x12x18)
Medical bills `1,29,000/-
Total `3,09,800/-
6. The Tribunal directed the respondent No.2 - KGID Motor Branch, Bengaluru to pay the compensation together with interest at 6% per annum from the date of petition till realization, within 90 days from the date of the order. Aggrieved by the same, the claimant is before this Court seeking enhancement of the compensation.
7. Heard the learned counsel for the parties and perused the records.
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8. The learned counsel for the appellant/claimant reiterating the grounds urged in the appeal memorandum submitted that the Tribunal has erred in assessing the notional income of the claimant at `3,000/- per month even while she was earning `6,000/- per month. He submitted that the Tribunal has erred in assessing the disability at 10% without taking into consideration the disability assessed by the doctor at 30%. He further submitted that considering the injuries suffered by the claimant in the nature of fractures and disfigured face and also injuries to her eye, resulting in she not being able to open her eyelid, the Tribunal ought to have granted just and sufficient compensation even under other heads. He relied upon the judgment of the Apex Court in the case of Jagdish vs. Mohan and Others reported in (2018) 4 SCC 571 and in the case of Erudhaya Priya vs. State Express Transport Corporation Ltd., reported in 2020 SCC Online SC 601, justifying the claim for future prospects. Hence, sought for allowing of the appeal. 7
9. On the other hand, the learned counsel for the respondent No.2 submitted that the Tribunal has assessed the compensation in just and sufficient manner. He contended that the doctor, who examined as PW.2, has not treated the claimant. Therefore, the disability assessed by the Tribunal is just and proper. He also contended that the accident is of the year 2008 and the claimant has not made out any ground seeking enhancement of the compensation. Hence, sought for dismissal of the appeal.
10. On thoughtful consideration of the submissions made by the learned counsel for the parties, the only point that arises for consideration is:
"Whether the claimant has made out a case for enhancement of the compensation?"
11. The accident in question is not in dispute. The claimant has suffered the following injuries on account of the accident as found at Ex.P5 - wound certificate: 8
"1. Abrasion of 8cm x 4cm over mandible and chin and bleeding was present.
2. Abrasion of 6cm x 5cm over left foot bleeding present.
3. Contused wound 4cm x 4cm over left parietal area and occipital.
CT scan made at Kerodi hospital dated 20.11.2008 reports subarachnoid hemorrhage and minimal subarachnoid hemorrhage.
Injuries 1 and 2 are simple and injury No.3 is grievous. All the above injuries are fresh may be caused in road traffic accident."
11. The disability certificate produced at Ex.P17 provides the following details:
"DISABILITY CERTIFICATE This is to certify that I have examined Kr.Sharadha @ Sarubai D/o. Babu Chawan R/o. Hullur LT age 21 years on 11.02.2012 at by clinic as out patient at Sl.No.8 and was having history of RTA and has sustained subarachnoid Hemorrhage, subdural hematoma, minimal intraventricular bleed, and multiple focal lessions, multiple hemorrhage foci and exonal injuries..9
She has stated that she has taken treatment at Dr. Kerudi of Bagalkot and Dr. R.B.Patil of Hubli.
She has produced the wound certificate copy of the Dr. who has examined her. I have perused the said document.
And now he is complaining of, ¾ Diplopia.
¾ Repeated episode of headache.
¾ Partial loss of recent and remote
memory.
On examination of the said person, i found the following disabilities. ¾ Ptosis of left eye ¾ Unable to squint.
¾ Loss of power involving lateral rectus levetor palpabrae superioris. The patient was referred for x-ray of skull.
On perusal of the x-ray of skull NAD, With the above observation, as per my experience and on the basis of clinical examination and as per the Doctor's Manual, i am of the opinion that the percentage of the disability to the whole body is 30%.10
With this much of disability the injured cannot lead normal life, and she finds difficulty in walking and will find difficulty in day-to-day works. Hence, this certificate.
12. The claimant, who has suffered the injuries in the road traffic accident as extracted hereinabove, was apparently aged about 25 years at the time of the accident. Due to the injuries, more particularly, injury in the nature of disfigurement of face, she has remained unmarried. Ex.P16 is the document evidencing the talks of the marriage purported to have taken place prior to the date of the accident. The fact remains that the claimant has remained unmarried till date. Due to the injury to the left eyelid of the claimant remains dropped/closed. The Tribunal has declined to take the disability at 30% on the premise that PW.2, who has deposed with regard to disability is not the one, who treated the claimant. Considering the nature of injuries suffered, disability certificate at Ex.P17 and the evidence of PW.2, this Court 11 is of the considered view that the disability of the claimant can be taken at 20% instead 10% taken by the Tribunal.
13. Though it is contended on behalf of the of the claimant that she was earning `6,000/- per month as coolie, no evidence to this effect has been produced. This Court in the absence of any evidence regarding income, takes into consideration the chart prepared by the High Court Legal Services Authority. As per the chart, the notional income of the victims of the road traffic accident for the year 2008 has been notionally fixed at `4,250/- and the same is taken into consideration in the present case instead `3,000/- per month as taken by the Tribunal. Having concluded the disability at 20%, the corresponding enhancement with regard to the compensation needs to be computed. In view of the law laid down by the Apex Court in the case of Jagadish and in the case of Erudhaya Priya (Supra), the claimant is entitled to future prospects. Taking into consideration the material evidence and in view of the law laid down by the Apex Court in the case of 12 National Insurance Company Ltd. vs. Pranay Sethi reported in (2017) 16 SCC 680, the claimant being aged about 25 years, is entitled to future prospects at 40% of the notional income. Thus, the claimant is entitled to compensation of `2,57,040/- (4250+40%x12x18x20%) towards loss of future income.
14. The Tribunal has awarded `40,000/- under the head of pain and suffering. Claimant has undergone squint eye surgery. This Court deems it necessary to award additional sum of `10,000/- to make it `50,000/- instead `40,000/- awarded by the Tribunal.
15. The Tribunal has awarded `3,000/- towards loss of comforts. Considering the nature of injuries suffered, an addition of `27,000/- needs to be awarded for making it `30,000/- instead `3,000/- awarded by the Tribunal.
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16. The Tribunal has awarded `3,000/- towards attendant charges and the same is maintained as just and proper.
17. The Tribunal has awarded `50,000/- towards loss of marital status. The fact remains that the claimant has suffered disfigurement of face and she is not in a position to open her eyelash. The accident is of the year 2008 and though initial talks of the marriage of the claimant was fixed, due to the accident, the same seems to have been broken. Hence, this Court is of the opinion that addition of `1,00,000/- needs to be awarded under this head. Thus, the claimant is entitled to a sum of `1,50,000/- under the head of loss of marital status instead `50,000/- awarded by the Tribunal.
18. The compensation awarded under the head of disfigurement at `20,000/- is maintained in view of the additional compensation awarded under other heads. 14
19. The Tribunal has awarded `1,29,000/- towards medical bills and the same is maintained as just and proper. Thus, the claimant is entitled to enhanced compensation as follows:
Heads By Tribunal By this Court Pain and suffering `40,000/- `50,000/- Loss of comforts `3,000/- `30,000/- Expenses for `3,000/- `3,000/- attender Loss of marital `50,000/- `1,50,000/- status Compensation for `20,000/- `20,000/- disfigurement Loss of future `64,800/- `2,57,040/- income Medical bills `1,29,000/- `1,29,000/- Total `3,09,800/- `6,39,040/-
20. On the enhanced compensation, the claimant is entitled for interest at 6% per annum from the date of claimant till realization. Hence, the above point is answered and following order is passed:
ORDER a. The appeal filed by the claimant/appellant is allowed in part and the 15 judgment and order of the Tribunal in MVC No.107/2009 is modified.
b. The appellant/claimant is entitled for enhanced compensation of `6,39,040/-
instead `3,09,800/- awarded by the Tribunal together with interest at 6% per annum from the date of petition till its realization.
c. The respondent No.1 - KGID Motor Branch, Bengaluru is directed to pay the compensation within eight weeks from the date of receipt of a certified copy of this judgment.
Sd/-
JUDGE Srt