Partly allowed

Rekha K T v. P.T.Shivalingamurthy

Karnataka HC7 Jul 2021MFA/2503/2017

Case brief

AI extract

What is this about?

The High Court enhanced the compensation awarded in a motor accident claim. While confirming the Tribunal's finding on liability, the Court reassessed the claimant's monthly income to Rs. 8,000 and total disability to 22%, increasing the total award from Rs. 3,91,160 to Rs. 6,59,160 with interest.

What did the court decide?

The appeal is allowed in part; compensation enhanced to Rs. 6,59,160 with interest at 6% p.a.; liability ruling remains intact.

Rekha K T Vs P.T.Shivalingamurthy — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF JULY, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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M.F.A.No.2503/2017 (MV)

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BETWEEN :

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REKHA.K.T., D/O THAMMAIAH NAIKA AGED ABOUT 26 YEARS R/AT NITIVALLI EXTENSION DAVANAGERE-577002.

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...APPELLANT

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(BY SRI HANUMANTHAPPA.A, ADV.)

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AND :

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P.T.SHIVALINGAMURTHY

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S/O S.P.THIPPESWAMY

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AGED ABOUT 42 YEARS

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S.P.THIPPESWAMY

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S/O SURLINGAPPA, MAJOR

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RESPONDENT Nos.1 AND 2 ARE R/AT NAYAKANAHATTI POST CHALLAKERE TALUK CHITRADURGA-577501.

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THE MANAGER

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THE NATIONAL INSURANCE CO. LTD.,

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DIVISIONAL OFFICE, P.B. No.74 MELEGIRI PLAZA, MCC BLOCK DENTAL COLLEGE ROAD DAVANAGERE-577002.

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P.SRINIVASA S/O PANDURANGAPPA, MAJOR R/AT GOPALPURA EXTENSION HIRIYUR TOWN-572143.

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P.VIJAY KUMAR MAJOR, R/AT MARGOSA MANION # 98, MARGOSA ROAD MALLESHWARAM, BANGALORE-560003.

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THE MANAGER UNITED INDIA INSURANCE COM LTD., No.89/1, 2^ND FLOOR, 11^TH CROSS SAMPIGE ROAD, MALLESHWARAM BANGALORE-560003.

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REPRESENTED THROUGH ITS DIVISIONAL MANAGER DIVISIONAL OFFICE UNITED INDIA INSURANCE COMPANY LTD., AKKAMAHADEVI ROAD P.J. EXTENSION, DAVANAGERE. …RESPONDENTS

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(BY SRI JANARDHANA REDDY, ADV. FOR R-3; SRI M.V.POONACHA, ADV. FOR R-6;

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NOTICE TO R-1, R-2, R-4 & R-5 ARE DISPENSED WITH.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 07.11.2016 PASSED IN MVC No.933/2012 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & VI MACT, DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR HEARING, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is directed against the judgment and award dated 07.11.2016 passed in MVC No.933/2012 on the file of the II Additional Senior Civil Judge and VI MACT at Davanagere [‘Tribunal’ for short].

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The claimant preferred petition under

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Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries sustained by her in the road traffic accident.

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It was averred in the claim petition that on

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03.05.2011 when the claimant was proceeding on motorcycle bearing No.KA-17-ED-525 along with her colleague who is the claimant in MVC No.932/2012

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from Chitradurga to Davanagere, on NH-4 road at about 7.30 p.m., the driver of the tractor bearing registration No.KA-17-TA-885 came from back side in a high speed with rash and negligent manner and dashed against the motorcycle. At the same time, driver of truck bearing

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registration No.KA-04-C-3401 came from behind the tractor in a rash and negligent manner and dashed against the tractor. Due to the said impact, the riders of the motor vehicle fell down and sustained grievous injuries.

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It was contended that the injured/claimant was aged about 23 years and working as computer operator and thereby she was earning Rs.6,000/- p.m. Due to the disability sustained in the accident in question, she lost her earning capacity. As such, she is suffering mentally, physically and financially. Alleging actionable negligence on the drivers of the tractor and the truck, the claimant sought for compensation.

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On service of summons, the owner of the truck has failed to appear and was placed exparte. Respondent Nos.1 to 3 and 6 have appeared and contested the claim. Respondent No.2 – owner of the tractor, respondent Nos.3 and 6 – insurers of the

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vehicles had filed common objections. No objections

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were filed by the respondent No.1.

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The insurer – respondent No.6 refuted the claim contending that the injuries sustained by the claimant were no way related to the use of the vehicle No.KA-04-C-3401. It was alleged that the vehicle was planted to claim compensation from the said insurer unlawfully.

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On the basis of the pleadings issues were framed clubbing MVC No.933/2012 with MVC No.932/2012 filed by the rider of the motorcycle and awarded total compensation of Rs.3,91,160/- with interest at 6% p.a., from the date of the petition till its realization in MVC No.933/2012.

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Being dissatisfied with the quantum of

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compensation awarded by the Tribunal, the claimant

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has preferred this appeal for enhancement of

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compensation.

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Learned counsel for the claimant would

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submit that though the doctor who was examined as PW3 has assessed disability at 65%, the Tribunal has determined 20% disability pertaining to the whole body.

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The compensation awarded under the different heads is inadequate inter alia contending that the monthly income assessed at Rs.4,000/- is unjust.

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Learned counsel for the insurer justifying the impugned judgment and award sought for dismissal of the appeal.

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We have carefully considered the rival

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submissions of the learned counsel appearing for the parties and perused the material on record.

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It is borne out from the records that the

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accident occurred on 03.05.2011. In the absence of cogent evidence, the Tribunal has determined the monthly income notionally at Rs.4,000/- which is on the lower side. It is depicted that the claimant was an aspirant for the all India Civil Services Examination. Ex.P12, examination of hall ticket would corroborate the same. Due to the sudden accidental injuries, she was unable to appear for the examination. Hence, we determine the monthly income at Rs.8,000/-, considering her educational qualification.

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It is discerned that the doctor has assessed the disability to a particular limb at 65%, the Tribunal has taken 20% disability for her whole body. Thus, disability to the whole body is re-assessed at 22%. Thus, the loss of future income due to disability would be Rs.3,80,160/- [Rs.8000 x 12 x 18 x 22%].

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The claimant has taken treatment as an

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inpatient for 48 days in the hospital, we award Rs.20,000/- towards food, nourishment and attendant charges. Since we have re-determined the monthly income of the injured at Rs.8,000/-, loss of income during the laid up period would be Rs.24,000/-. Having regard to the grievous nature of the injuries related to the fracture and the treatment taken for a period of 48 days as an inpatient, we find it just and proper to award Rs.50,000/towards injury, pain and suffering; Rs.50,000/- towards loss of amenities, discomfort, disfiguration; Rs.50,000/- towards marriage prospects.

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The compensation of Rs.85,000/- awarded towards medical expenses remains intact.

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For the reasons aforesaid, the total

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compensation awarded by the Tribunal is re-assessed as under:

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Sl.No.	Particulars	Amount [in Rs.]
1.	Medicalexpenses	85,000/-
2.	Loss of income during laid off period andrest	24,000/-
3.	Food & nourishment and attendant charges	20,000/-
4.	Injury, painand sufferings	50,000/-
5.	Futureloss of income	3,80,160/-
6.	Loss of marriage prospects	50,000/-
7.	Loss ofamenities	50,000/-
	Total	6,59,160/-

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Thus, the claimants shall be entitled to total compensation of Rs.6,59,160/as against Rs.3,91,160/- awarded by the Tribunal, with interest at the rate of 6% per annum from the date of the claim petition till the date of realization.

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As regards the liability aspect, the Tribunal on critical analysis of the material evidence, has arrived at a conclusion that the rash and negligent driving of the drivers of the tractor and truck is the cause for the accident and accordingly, the contributory negligence is fixed to the extent of 70% on the insurer of the truck

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and 30% contributory negligence on the part of the driver of the tractor. On appreciation of the material evidence on record, no exception can be found with the same having regard to the police documents and the report of the IMV report (Ex.P3). The truck was behind the tractor, it was necessary for the truck driver to maintain sufficient distance on the road. The driver of the truck sans following the traffic Rules has hit the tractor from behind. Hence, the degree of contributory negligence is more on the driver of the truck. Equally, there is negligence on the part of the driver of the tractor dashing against the motor vehicle. Hence, the finding of the Tribunal on liability stands confirmed.

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Hence, the following:

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ORDER

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i) The appeal is allowed in part.

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ii) The total compensation awarded by the Tribunal is modified and enhanced to

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Rs.6,59,160/- (Rupees Six lakhs fifty nine thousand one hundred sixty only) as against Rs.3,91,160/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of the petition till its realization.

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iii) The portion of the order of the Tribunal inasmuch as liability and disbursement remains intact.

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iv) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

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v) The modified compensation amount shall be disbursed in terms of the order of the Tribunal.

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vi) Draw modified award accordingly.

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vii) The Registry shall transfer the original records to the jurisdictional Tribunal

forthwith.

Sd/JUDGE

Sd/JUDGE

NC.

Rekha K T v. P.T.Shivalingamurthy

Case brief

What is this about?

What did the court decide?

Rekha K T v. P.T.Shivalingamurthy

Case brief

What is this about?

What did the court decide?

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