Partly allowed

Kum Surekha v. Cholamandalam Insurance Company Limited

Karnataka HC8 Jul 2021MFA/6738/2019

Case brief

AI extract

What is this about?

The High Court allowed the appellant's appeal against the Motor Accident Claims Tribunal order, enhancing compensation from Rs.4,85,151 to Rs.8,76,751. The court awarded loss of future earning capacity, loss of marriage prospects, and maintained other heads based on 45% permanent disability.

What did the court decide?

Enhancement of compensation to Rs.8,76,751 with 6% interest from the date of filing the claim petition.

Kum Surekha Vs Cholamandalam Insurance Company Limited — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 08^TH DAY OF JULY 2021

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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M.F.A. NO. 6738 OF 2019(MV-I)

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BETWEEN:

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KUM. SUREKHA D/O LATE DHARMANNA AGED ABOUT 19 YEARS 128, 2ND CROSS, 2ND MAIN HEMAVATHI NAGAR HASSAN-573201.

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... APPELLANT

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(BY SRI. V.F.KUMBAR, ADV.)

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AND:

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CHOLAMANDALAM

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INSURANCE COMPANY LIMITED UNIT NO.4, 9TH FLOOR LEVEL-6, GOLDEN HEIGHTS SUPERB RAJAJINAGAR 4TH MAIN BANGALORE-560 010.

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CHOWDAPPA S/O DUGRAPPA CHIKRANNA HATTI GOLLARA HATTI VILLAGE HOSKERE POST, SIKKE HOBLI JAGALURU, DAVANAGERE-577 002.

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... RESPONDENTS

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(BY SRI.PRADEEP B., ADVOCATE FOR R1: NOTICE TO R2 IS D/W V/O DATED:11.07.2019)

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THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.10.2018 PASSED IN MVC.NO.778/2016 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, HEMANT CHANDANGOUDAR J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) is filed against the judgment dated 12.10.2018 passed in MVC No.778/2016 by the II Additional Senior Civil Judge and Motor Accident Claims Tribunal, Hassan (hereinafter referred to as 'the Tribunal' for short).

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Facts leading to filing of this appeal briefly stated

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are that on 26.01.2015, when the claimant - Kumari Surekha, who was a pillion rider, along with her friend were proceeding on motorcycle from Seegegudda to Hassan and when they reached near Rachenahalli Cross Road, Salagame Hobli, Hassan, at that time, the driver of TATA Ace drove the same from Gyarahalli direction in a rash and negligent manner and dashed against the claimant. Due to the said

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impact, the claimant and her friend fell down and sustained grievous injuries.

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The claimant thereupon filed a petition under

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Section 166 of the Act inter alia on the ground that the claimant was admitted to SC Hospital, Hassan and other hospitals. She took treatment as an inpatient in Venlock Hospital, Mangalore from 26.1.195 to 26.4.2015 and she was again admitted in Mangala Hospital on 9.5.2015 to 28.5.2015 and on 11.1.2016 to 12.1.2016 and still is taking treatment as outpatient in Venklock Hospital, Mangalore. It was also pleaded that the claimant has spent more than Rs.10,00,000/- towards medical expenses. It was also claimed that the claimant was studying in 10th standard at the time of accident. Due to the impact of the accident, her face and other parts of the body are disfigured and she is unable to walk, stand, sit, squat and lift or carry any weight. It was also pleaded that the accident took place on account of rash and negligent driving of TATA Ace of the driver.

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After service of notice, the 2nd respondent

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remained absent and he was placed exparte. The 1st

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respondent appeared through its counsel and filed written statement.

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The 1st respondent filed written statement inter alia stating that the petition is not maintainable and denied the allegations made in the claim petition. The mode and manner of the accident was denied. The age, occupation, income and injuries sustained by the claimant were denied. It was further denied that the offending vehicle was insured with its company. It was also pleaded that the driver of the offending vehicle did not possess valid and effective driving license as on the date of accident. It was also pleaded that liability of the Insurance Company to pay the compensation, if any, is subject to the terms and conditions of the policy. It was also stated that the compensation claimed by the claimant is highly excessive, speculative and exorbitant.

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On the basis of the pleadings of the parties, the Tribunal framed the issues and thereafter recorded the evidence. The claimant, in order to prove her case, examined herself as PW-1 and Dr.Ravi H S as PW2 and exhibited documents namely Ex.P1 to Ex.P103. On the other

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hand, respondents neither examined the witnesses nor produced any documents.

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The Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the TATA Ace by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.4,85,151/- along with interest at the rate of 18% p.a. Being aggrieved, this appeal is filed by the claimant seeking enhancement of the amount of compensation.

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Learned counsel for the claimant submitted that the claimant is entitled for compensation towards loss of future income having regard to the fact that the claimant has sustained 45% permanent disability due to accidental injuries. He submitted that the amount of compensation awarded under all the other heads are on the lower side and deserves to be enhanced suitably.

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On the other hand, learned counsel for the 1st

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respondent - Insurance Company submitted that the amount

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of compensation awarded by the Tribunal under all the heads

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is just and proper and does not call for any interference.

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We have considered the submissions made by

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the learned counsel for the parties and have perused the record.

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The only question which arises for our

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consideration in this appeal is with regard to the quantum of compensation.

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Admittedly, the claimant has sustained the

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following injuries:

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Degloving injuries right knee. 6x1 cms. fracture of patella.

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Lacerated darsum of right foot 3 x 1 cms.

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Lacerated (deep) perietal 6 x 1 cms fracture of parietal bone.

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Deep degloving injury to right forearm with fracture of forearm.

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Lacerated wound over supra arbital region.

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PW2 - doctor assessed the permanent disability

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at 45% to the right upper limb. Having regard to the medical evidence on record and also that the claimant was

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aged 16 years as on the date of accident, it would be appropriate to assess the functional disability at 15%.

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In view of the decision of the Hon'ble Supreme Court in the case of KAJAL Vs. JAGDISH CHAND AND OTHERS 2020 SCC ONLINE SC 1271 by taking the notional income of the claimant at Rs.9,000/- p.m., the claimant is held entitled for a sum of Rs.2,91,600/(Rs.9,000/- x 12 x 18 x 15/100) towards loss of future earning capacity.

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The claimant who is a girl aged 16 years as on the date of accident has undergone amputation of right toe and this will affect her marriage prospects. Hence, the claimant is entitled for a sum of Rs.1,00,000/- towards loss of marriage of prospects.

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The compensation awarded under the other heads is just and proper and the same is maintained.

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17 . The amount of compensation awarded under the other heads is maintained. Thus, the claimant is held entitled to a total compensation of Rs.8,76,751/- as against

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Rs.4,85, 151/- awarded by the Tribunal. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% per annum from the date of filing of the petition till the date of realization of the amount. To the aforesaid extent, the judgment and award dated 12.10.2018 passed in MVC No.778/2016 by the II Additional Senior Civil Judge and Motor Accident Claims Tribunal, Hassan is modified.

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Accordingly, the appeal is disposed of.

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Sd/JUDGE

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JUDGE

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bkm

Kum Surekha v. Cholamandalam Insurance Company Limited

Case brief

What is this about?

What did the court decide?

Kum Surekha v. Cholamandalam Insurance Company Limited

Case brief

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What did the court decide?

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