Partly allowed

Smt Mamatha K R v. Sri K Shivamurthy

Karnataka HC21 Oct 2022MFA/1224/2017

Case brief

AI extract

What is this about?

This appeal challenges the compensation awarded for personal injuries sustained by an appellant in a motor vehicle accident. The High Court modified the lower court's award, granting enhanced compensation of Rs.1,50,000 for loss of income, amenities, and other expenses, recognizing her contribution as a housewife.

What did the court decide?

Compensation enhanced by Rs.1,50,000 with interest at 6% p.a. to be deposited by the insurance companies.

Smt Mamatha K R Vs Sri K Shivamurthy — 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 21^ST DAY OF OCTOBER, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE K.SOMASHEKHAR

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AND

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THE HON’BLE MR. JUSTICE C.M.JOSHI

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MISCELLANEOUS FIRST APPEAL No.1224/2017 (MV-I)

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BETWEEN:

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SMT.MAMATHA K.R W/O.LATE NAGARAJ H.S. AGED ABOUT 49 YEARS R/AT NO.41, SNEHASUDHA M.S.R.LAYOUT MAIN ROAD OPP;HESARAGHATTA MAIN ROAD NEAR 8TH MILE BENGALURU - 560 073

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... APPELLANT

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(BY SRI JAYAKUMAR AND SRI NAGENDRA C.S, ADVOCATES)

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AND:

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SRI K.SHIVAMURTHY S/O.KASHYANA NAIK MAJOR R/AT NO.H-136, 9TH A MAIN 11TH SECTOR, LIC COLONY JEEVAN BHIMANAGAR BENGALURU - 560 075

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(OWNER OF THE HONDA CIVIC CAR BEARING NO.KA.03.MH.5665)

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THE ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED NO.89, 2ND FLOOR S.V.R COMPLEX HOSUR ROAD MADIWALA BENGALURU - 560 068 REP.BY ITS MANAGER/OFFICER INCHARGE) (INSURER OF HONDA CIVIC CAR

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ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD., NO.186/7, 1ST FLOOR, WILSON GARDEN HOSUR MAIN ROAD BENGALURU 560 027 REP.BY ITS MANAGER/OFFICER INCHARGE

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(INSURER OF MARUTHI OMNI CAR BEARING REG.NO.KA.02.MC.8815)

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SRI SANCHITH H.N. S/O LATE NAGARAJH.S. AGE 26 YEARS R/O NO.41 SNEHASUDHA M.S.R.LAYOUT MAIN ROAD OPP.HESARAGHATTA MAIN ROAD NEAR 8TH MILE, BENGALURU 560 073.

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…RESPONDENTS

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(BY SRI B.C.SHIVANNA GOWDA, ADVOCATE FOR R-2; SRI RAVI S.SAMPRATHI, ADVOCATE FOR R-3; SRI H.SHANTHI BHUSHAN, ADVOCATE FOR R-4; SERVICE OF NOTICE TO R-1 IS HELD SUFFICIENT V.O.D 05.12.2017)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.09.2016 PASSED IN MVC NO.964/2012 ON THE FILE OF THE VIII ADDITIONAL SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES AND XXXIII ACMM AND MEMBER MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

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

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JUDGMENT

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By consent of both the counsel, the matter is taken

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up for final disposal though it is listed for admission.

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Being aggrieved by the judgment and award dated 07.09.2016 passed in MVC No.964/2012 by the learned VIII Additional Small Causes Judge, Court of Small Causes and XXXIII ACMM and Member, MACT, Bengaluru, whereby the petition filed by the petitioner came to be allowed in part awarding compensation of Rs.3,56,000/- with interest at 6% p.a., petitioner has filed this appeal.

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The parties are referred to as per their

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nomenclature before the Tribunal for the sake of convenience.

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The brief facts of the case are as below:

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It is the case of the petitioner that on 26-10-2008 at

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about 12.15 p.m., she along with her son, daughter and

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husband were proceeding in a Maruthi Omni Car bearing No.KA.02.MC.8815 from Bangalore to Hassan, on Bangalore to Mangalore road, the husband of the petitioner was driving the Maruthi car and when they came near Thittanahosahalli gate, a Honda Civic Car bearing No.KA.03.MH.5665 driven by its driver came in a rash and negligent manner with high speed from opposite direction and struck the Maruthi Omni Car head on. Due to which, petitioner, her husband, son and daughter have sustained grievous injuries and Maruthi Omni car was completely damaged. It is further contended that her husband and daughter succumbed to the injuries at the spot and petitioner sustained injuries. It is further contended that police registered a case in Crime No.95/2008 against the driver of Honda Civic Car and filed chargesheet. Immediately after the accident she was shifted to Adichunchanagiri Hospital, Bellur Cross then to Panacea Hospital, Bangalore and she was unconscious for a week and thereafter she took treatment as outpatient.

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Therefore, she filed a claim petition under Section 166 of M.V. Act, claiming compensation.

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After issuance of notice by the Tribunal, 1st respondent remained exparte, 2nd and 3rd respondent appeared through their counsel and filed objections.

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The 2nd respondent denied the incident involving Maruthi Omni Car and Honda Civic Car on 26-10-2008 as pleaded by petitioner, but admits issuance of policy to Honda Civic Car and contends that he may be permitted to take statutory plea under section 149(2) and 170 of M.V. Act and denied the incident, income, disability and contends that the claim of the petitioner is excessive and exorbitant and also contends that due to fault of the husband of the petitioner, the accident occurred and pleads to dismiss the petition.

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The 3rd respondent has denied the contentions of the petitioner and pleaded that the Insurer is not liable to pay any compensation as the petitioner has succeeded

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with the estate of the deceased Nagaraj and has become the owner of Maruthi Omni car which is insured and that the relationship between the petitioner and 3rd respondent becomes injured and insured, as such petition is not maintainable and seeks to dismiss the petition.

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On the basis of the pleadings and contentions of the parties, the Tribunal has framed necessary issues for its consideration. Before the Tribunal, petitioner got examined herself as PW1 and examined one witness as PW2 and got marked 37 documents as Exs.P1 to P7 and on behalf of the respondents, two witnesses were examined as RW1 and 2 and got marked 5 documents as Exs.R1 to R5.

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The Tribunal, after considering the oral and documentary evidence available on file has partly allowed the petition by awarding compensation of Rs.3,56,000/together with interest holding that respondents 1 to 3 are jointly and severally liable to pay the compensation. Being aggrieved by the same, the petitioner has approached this

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Court in this appeal seeking enhancement of compensation.

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We have heard learned counsel appearing for the appellant and learned counsel appearing for respondent Nos.2 and 3- Insurance Companies.

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It is relevant to note that the petitioner/ appellant herein had also filed MFA No.10912/2012 and MFA No.10913/2012 concerning the death of her husband and daughter. Those two appeals have been disposed of by this Court along with the appeal filed by the insurance company in MFA No.10494/2012. This Court has fixed the contributory negligence of the Maruti Omni driver at 60% and Honda Civic car driver at 40%.

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The present appeal is concerning the personal injuries suffered by the petitioner in the said accident as an inmate of the car. The Tribunal has noted that the petitioner had sustained injuries as mentioned in Ex.P8 and she had underwent ORIF with DC plates and screws

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for fracture of humerus. The Tribunal has also noticed that the evidence of PW2 Dr. M.S. Kiran supports the same. After considering the injuries i.e. fracture of the humerus, fracture of 5th to 8th ribs and fracture of ileac bone, it opines that there is no assessment of the permanent disability and therefore, it cannot assess the compensation under the head of loss of income. It has also noticed in para 14 that, the petitioner was an insurance agent and no fixed income could be assessed, but it notices that she was a housewife.

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It is settled principle of law that even a home maker also contributes to the family and such contribution cannot be ignored. The Tribunals are to assess the compensation which is just and proper. Therefore, the suferrings of the petitioner, when she lost two of her family members in the same accident, coupled with the effects of the above injuries, should have been properly assessed by the Tribunal. In our considered opinion, the compensation has to be re-assessed in the light of the fact

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that the contribution of a home maker to the family could not have been ignored by the Tribunal. Therefore, we hold that even if we take the income of the petitioner moderately at Rs.4,000/- per month, the petitioner would have been entitled for a sum of Rs.24,000/- under the head of loss of income during laid up period, Rs.1,00,000/(in addition to the amount granted by the Tribunal) under the head of loss of amenities, and a sum of Rs.25,000/- (in addition to the amount granted by the Tribunal) under the head of food, nourishments, transportation etc., considering the fact that the actual disability of the petitioner could not be assessed.

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Thus, the enhanced compensation entitled by the petitioner is rounded off to Rs.1,50,000/-, in addition to the compensation awarded by the Tribunal.

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Sofar as the petitioner is concerned, she was an inmate of Maruthi Omni Car and therefore, it being a case of composite negligence, she is at liberty to claim the compensations against any one of the tortfeasor.

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Therefore, respondent Nos. 2 and 3 shall have to apportion the compensation amount as per the observations made by this Court in MFA No.10495/2012 c.w. MFA No.10913/2012 i.e. 60% to be born by insurer of the Maruthi omni and 40% by the insurer of Honda civic car.

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Hence, we pass the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The impugned judgment and award dated 07.09.2016 passed in MVC No.964/2012 by the learned VIII Additional Small Causes Judge, Court of Small Causes and XXXIII ACMM and Member, MACT, Bengaluru, is modified. The petitioner is entitled for enhanced compensation of Rs.1,50,000/along with interest at the rate of 6% p.a. from the date of petition till its deposit in addition to the amount awarded by the Tribunal.

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(iii) The respondent No. 2 and 3 Insurance Companies are directed to deposit the compensation amount with interest within four weeks from the date of receipt of the copy of this order. On such deposit being made, the entire amount be released to the petitioner.

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Sd/JUDGE

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Sd/JUDGE

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tsn*

Smt Mamatha K R v. Sri K Shivamurthy

Case brief

What is this about?

What did the court decide?

Smt Mamatha K R v. Sri K Shivamurthy

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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