Partly allowed

Smt Pramodhini S Y v. K L Suresh

Karnataka HC1 Aug 2022MFA/10424/2018

Case brief

AI extract

What is this about?

The High Court allowed a Miscellaneous First Appeal filed for enhancement of compensation in a motor accident case. The court modified the Tribunal's award, increasing compensation for loss of future income, pain and sufferings, and adding future medical expenses.

What did the court decide?

Total compensation enhanced to Rs. 6,65,219/-; Respondent directed to deposit enhanced amount with interest.

Smt Pramodhini S Y Vs K L Suresh — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 01^ST DAY OF AUGUST, 2022

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PRESENT

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THE HON’BLE MR. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA

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MISCELLANEOUS FIRST APPEAL No.10424/2018 (MV-I)

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BETWEEN:

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SMT. PRAMODHINI S.Y. W/O. RAVIKUMAR, HINDU NOW AGED 41 YEARS, R/AT NO.113, NARAYANASWAMY NILAYA, GANIGARAPALYA, THALAGHATTAPURA POST, KANAKAPURA MAIN ROAD, BANGALORE – 560 062. ... APPELLANT

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(BY SRI T.C. SATHISH KUMAR, ADVOCATE)

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AND:

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K.L. SURESH S/O. K. LOKAIAH, HINDU MAJOR NO.72, IV CROSS, BCC LAYOUT, CHANDRA LAYOUT, VIJAYANAGAR II STAGE, BANGALORE – 560 040.

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THE BRANCH MANAGER, FUTURE GENERAL INDIA INSURANCE CO. LTD., PASADENA NO.18/1, (OLD NO.125/A), III FLOOR, ASHOKA PILLAR ROAD, I BLOCK, JAYANAGAR, BANGALORE – 560 082. ... RESPONDENTS

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(BY SRI RAVI S. SAMPRATHI, ADVOCATE FOR R-2; NOTICE TO R-1 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.08.2018 PASSED IN MVC NO.7419/2016 ON THE FILE OF THE X ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU, [SCCH-16], PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ORDERS, THIS DAY , B.VEERAPPA J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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The present Miscellaneous First Appeal is filed by the appellant/claimant for enhancement of compensation against the Judgment and Award dated 14.08.2018 made in MVC No.7419/2016 on the file of the Court of Small Causes and Motor Accident Claims Tribunal, at Bengaluru (hereinafter referred to as ‘the Tribunal’ for short), whereby the Tribunal awarded total compensation of Rs.2,65,100/- with interest @9% per annum from the date of petition till the date of realization.

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It is the case of the claimant that on 21.01.2013 at about 8.30 a.m. the claimant was

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proceeding in a school Van bearing registration No. KA-05-AB-5541 along with teachers and school children and when the van reached near Shobha Apartment of Thalagattapura Pipeline Road, Kengeri Hobli, at that time, the driver of the Tata Safari Car bearing Registration No.KA-02-MD-5627 came in a rash and negligent manner and dashed to the left side of the school van. As a result, the claimant and other inmates of the van sustained severe injuries. Immediately, after the accident, the claimant took first aid treatment at Sri Sai Ram Hospital and then shifted to SSRVM Ayurvedic Hospital, wherein she was treated as inpatient. On account of accidental injuries, she permanently disabled and lost the earning capacity. Therefore, sought to allow the claim petition.

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In pursuance of the notice issued by the Tribunal, respondent No.1 remained absent and was placed exparte before the Tribunal.

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Respondent No.2 - Insurance company has

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filed the written statement denying the averments made in the claim petition and admitted the issuance of policy and its validity as on the date of the accident and contended that the accident took place due to negligence on the part of the driver of the school van and the driver of the offending vehicle did not possess valid and effective driving licence as on the date of the accident. Therefore, sought for dismissal of the claim petition.

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In order to substantiate the case, claimant

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examined herself as PW.1 and two more witnesses were examined as PW.2 and PW.3 and got marked documents as per Ex.P1 to Ex.P27. Respondent No.2/Insurance Company has not adduced any evidence on its behalf nor marked any documents.

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Based on the aforesaid pleadings, the

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Tribunal framed the following issues:-

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“1. Whether the petitioner proves that he met with a motor vehicle accident on 21-01-2013 at about 08:30:00, near Shobha Apartment, Pipeline road, Kengeri Hobli, Bangalore South Taluk and sustained grievous injury due to the rash and negligent driving of the driver of the Car bearing registration No.KA-02-MD-5627?

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1. Whether the petitioner proves that she is entitled for compensation? If so, what is the quantum and from whom?”

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Considering both the oral and documentary evidence on record, the Tribunal held that the claimant proved that she sustained injuries in the road traffic accident that occurred on 21.01.2013 due to

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rash and negligent driving of the driver of the car bearing registration No.KA-02-MD-5627. Accordingly,

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the Tribunal by the impugned judgment, awarded total compensation of Rs.2,65,100/- with interest @ 9% per annum from the date of petition till the date of realization. Hence, the present Miscellaneous First Appeal is filed by the appellant/claimant for enhancement of compensation.

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Respondent No.2/Insurance company has not filed any appeal against the impugned judgment and award passed by the Tribunal.

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We have heard the learned counsel for the parties to the lis .

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Sri. T.C. Satishkumar, learned counsel for

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the appellant/claimant contended that the impugned judgment and award passed by the Tribunal awarding compensation of Rs.2,65,100/- with interest @ 9% per annum is on the meager side and the Tribunal has failed to consider the injuries sustained by the claimant. He would further contend that the Tribunal

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has failed to consider the major impairment subsisted to the injured despite of taking effective treatment as inpatient at various hospital. He would further contend that the Tribunal has failed to award the compensation amount towards loss of her service to the family members during treatment and rest period over a year and for further period till end of her life and contend that the Tribunal has not awarded compensation towards loss of future income ignoring the material documents produced at Ex.P.6–Wound Certificate, Ex.P.7–Discharge Summary, Ex.P.25-Bank Statement, Ex.P.26–NC of the Pass book and Ex.P.27– 5 school fee receipts. He would further contend that the compensation awarded under other heads i.e., pain and sufferings, Attendant Charges is on the lower side and the Tribunal has not awarded any compensation towards future medical expenses, which is erroneous and contrary to the material on record. Therefore, sought for enhancement of compensation.

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Per contra, Sri. Ravi S. Samprathi, learned

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counsel for respondent No.2 while justifying the impugned judgment and award passed by the Tribunal, has contended that claimant was working as a Teacher at Sri Sri Ravishankar Vidya Mandir School and was earning Rs.10,000/- per month. In order to prove the avocation, claimant has produced employment ID card, Bank Statement and Bank passbook, which clearly indicate that she was working as a Teacher and earning Rs.6,960/- per month. During the cross-examination, the claimant admitted that the school authorities had not terminated her nor she had resigned the work even after the accident and the school authorities had paid the salary to the claimant and she continued in the work as a teacher after the accident, which clearly indicates that she has continued in the work after the accident. Such being

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the case, question of considering the functional disabilities does not arise and the Tribunal has right in

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not awarding compensation under the head loss of income due to permanent disability. He would further contend that though PW.3 has stated in his evidence that the claimant has suffered permanent disability to the whole body to an extent of 21%, however, in the cross-examination, he admitted that the disability has been assessed after five years from the date of the accident. Thereby, the Tribunal has rightly assessed the physical disability to an extent of 15%. Thereby the Tribunal is justified in awarding total compensation of Rs.2,65,100/- with interest @ 9% per annum. Therefore, he sought to dismiss the appeal.

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In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that would arise for our consideration in the present appeal is:

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"Whether the appellant/claimant has made out a case for enhancement of compensation, in the facts and circumstances of the case?"

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We have given our anxious consideration to

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the arguments advanced by the learned counsel for the parties and perused the material documents.

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It is undisputed fact that the claimant, who was working as a Teacher sustained grievous injuries due to the accident that occurred on 21.01.2013 due to rash and negligent driving of the driver of the and same is evident from the material documents Ex.P1 – the FIR and Ex.P3 – the Charge-Sheet filed by the jurisdictional police against the driver of the offending vehicle.

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The material on record clearly depicts that the claimant has sustained Compression of T-11 Vertebra, led to Annular Disc Bulge with small left paracentral disc protrusion at L5-S1 level causing

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nerve roots compression mild posterior disc bulges at C3-4 C6-7 levels, mild dorsal plated schmorl’s node impressions, swelling and contusions other parts of body.

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It is the specific case of the claimant that she was working as a Teacher at Sri Sri Ravishankar Vidya Mandir School and earning Rs.9,000/- per month as is evident from Ex.P.24 – Leave Certificate. The Tribunal has taken the income at Rs.6,960/- per month, in view of alleged admission by PW.1-claimant in her cross-examination. The Tribunal has not awarded any loss of future earnings ignoring the evidence of PW.1, who has specifically stated that she could not continue in the job as she was unable to continue to do the same. It is specifically stated in the evidence that she developed major impairment in the body, heading her to unbearable pains thrashing her to permanent dependency with inability to work and move independently and thereby it is difficult to

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do the day to day regular work due to the persisting disability developed out of the accidental injuries. Though in the cross-examination it was suggested that she was continuing in the job and had given a false statement regarding losing the job, the same being denied by the claimant and the insurance company has not produced any contra material to prove that even after the accident, the claimant was continuing her work. Ex.P.24 – Leave Certificate clearly depicts that claimant could not continue the service due to her health condition. Therefore, the compensation has to be awarded taking the notional income of the claimant at Rs.9,000/-.

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The doctor (PW.3), who examined the

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claimant has stated that claimant had sustained compression fracture of Thoracic Vertebrae and was treated conservateively at Sri Sai Ram Hospital and later at Jayanagar Orthopedic Centre as an outpatient.

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It is stated by the doctor that in view of injuries

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sustained by the claimant, it is difficult to the claimant in bending forward, back ward and side wards, difficult in lifting weight, carrying weight, climbing stairs and fast walking and unable to attend house hold works. He has stated that claimant has suffered disability to an extent of 21% to the whole body. Considering the age of the claimant and the injuries sustained by her, we are of the considered opinion that the percentage of disability taken by the Tribunal at 15% has to be enhanced to 21%.

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In view of the above, the income of the claimant has to be taken at Rs.9,000/- per month and the percentage of disability has to be taken at 21%. The appropriate multiplier applicable is '15' considering the age of the claimant as 36 years. Therefore, the appellant/claimant is entitled to compensation of Rs.3,40,200/- (Rs.9,000 x 12 x 15 x 21%) under the head of 'loss of future income'.

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The appellant/claimant has sustained

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grievous injuries as stated above. She was inpatient from 21.01.2013 till end of July 2013 and 02.08.2013 to 20.08.2013 at various hospital and she has sustained grievous injuries. The Tribunal, while awarding compensation towards pain and suffering has awarded lesser compensation and the same requires further enhancement. The Tribunal has proceeded to award lesser compensation in respect of other heads, i.e., attendant charges, loss of future amenities and happiness, which requires further enhancement. In respect of compensation awarded under the head of medical expenses stands unaltered. The Tribunal has not awarded compensation under the head of future medical expenses, which needs to be awarded. Accordingly, we answer the point raised in the present appeal in the partly in the affirmative holding that the appellant/claimant has made out a

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case for enhancement of compensation, in the facts and circumstances of the case.

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On re-assessment of the entire oral and

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documentary evidence on record, we are of the considered opinion that the appellant/claimant is entitled for compensation under different heads as under:

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Sl.	Compensation Head	Amount of
No.		compensation awarded
1	Loss of future income	3,40,200.00
2	Medical expenses (awarded by the Tribunal)	65,019.00
3	Pain and sufferings	1,00,000.00
4	Attendant charges, Food and nourishment	50,000.00
5	Loss of future amenities	60,000.00
6	Future medical expenses	50,000.00
	Total	6,65,219/-

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In all, the appellant/claimant is entitled to total compensation of Rs.6,65,219/- as against Rs.2,65,100/- awarded by the Tribunal. Thus, the appellant/claimant is entitled to enhanced

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compensation of Rs.4,00,119/-.

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For the reasons stated above, we pass the

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following:

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O R D E R

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i) The Miscellaneous First Appeal is allowed in part.

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ii) The impugned Judgment & Award passed by the Tribunal is hereby modified.

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iii) The appellant/claimant is entitled to total compensation of Rs.6,65,219/- as against Rs.2,65,100/- awarded by the Tribunal.

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iv) Respondent No.2/insurance company is directed to deposit the enhanced compensation amount of Rs.4,00,119/with interest at 6% per annum from the

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date of petition till the realization within a period of six weeks from the date of receipt of a copy of this order.

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v) The deposit and release of compensation amount shall be as per the impugned judgment & Award of the Tribunal.

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vi) The Registry is directed to return the trial Court Records forthwith.

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Sd/JUDGE

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Sd/JUDGE

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MBM

Smt Pramodhini S Y v. K L Suresh

Case brief

What is this about?

What did the court decide?

Smt Pramodhini S Y v. K L Suresh

Case brief

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What did the court decide?

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