Partly allowed

Smt Rajeshwari Bayi @ Rajeshwari v. Sathyanarayana B.N.

Karnataka HC13 Oct 2022MFA/8892/2019

Case brief

AI extract

What is this about?

On appeal against the Claims Tribunal's award following a motor accident, this Court held the Tribunal erred in imputing contributory negligence and in assessing the compensation quantum. The Court enhanced the awarded compensation from approximately Rs. 2.84 lakhs to Rs. 5.44 lakhs.

What did the court decide?

Total compensation enhanced to Rs. 5,44,293/-; directed to be deposited by insurer with interest.

Smt Rajeshwari Bayi @ Rajeshwari Vs Sathyanarayana… — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF OCTOBER 2022

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BEFORE

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THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD

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MFA No.8892 OF 2019(MV)

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BETWEEN:

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SMT. RAJESHWARI BAYI @ RAJESHWARI AGED ABOUT 29 YEARS D/O SRI R.THAKRANAYAKA W/O KRISHNA NAYAK R/AT A.K.COLONY BEHIND CHANDRA CHUDESHWAR TEMPLE NEAR KONANAKUNTE BUS STOP BANGALORE PERMANENT ADDRESS RAMAGHATTA DAVANAGERE-583125.

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...APPELLANT

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(BY SRI. A S GIRISH., ADV.)

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AND:

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1 . SATHYANARAYANA B.N. S/O LATE NANJUNDA SHASTRY B.R MINOR R/AT NO.324, 1ST MAIN, GOLLAHALLI K.G.A.SHETTY LAYOUT ANJANAPURA BANGALORE-560032.

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2 . ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., NO.121, THE ESTATE BUILDING 9TH FLOOR, DICKSON ROAD BANGALORE-560 001 BY ITS MANAGER.

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…RESPONDENTS

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(BY SRI. PRADEEP B., ADV. FOR R2: NOTICE TO R1 IS SERVED BUT UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED.18.01.2019 PASSED ON MVC NO.4878/2017 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU (SCCH-7), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant being aggrieved by the judgment dated 18.1.2019 passed by MACT, Bangalore in MVC 4878/2017.

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2. Facts giving rise to the filing of the appeal

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briefly stated are that on 20.7.2017 when the claimant almost crossed the Konanakunte Main Road, near Surabhi Hotel from East to West direction, at that time, Hero Honda Activa bearing registration No.KA05-JS-2943 being ridden by its rider at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that she spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent riding of the offending vehicle by its rider.

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On service of notice, the respondents

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appeared through their respective counsel and only respondent No.2 filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to negligence of the claimant herself. The driver of the offending vehicle did not have valid driving licence as on the date of the accident. The liability is subject to terms and conditions of the policy. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant herself was

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examined as PW-1 and Dr.Nagaraj.B.N. was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P13. On behalf of the respondents, neither any witness was examined nor any document was produced. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of contributory negligence, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.2,84,013/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit 90% of the compensation amount along with interest. Being aggrieved, the present appeal has been filed.

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The learned counsel for the claimant has raised the following contentions:

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Re: Negligence

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The accident occurred due to rash and negligent riding of the motorcycle by its rider. The claimant was crossing the road from East to West direction and she had almost crossed 90% of the road and at that time, the rider of the motorcycle came to the extreme right side and dashed to the claimant. Contrary to the materials available on record such as spot sketch and mahazar, The Tribunal has erred in holding that the claimant has contributed negligence to the extent of 10%.

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Re: quantum of compensation

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Firstly, even though the claimant claims that she was doing Tailoring work and earning Rs.15,000/- per month, but the Tribunal has taken the notional income as merely as Rs.8,000/- per month.

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Secondly, the claimant has examined the doctor as PW-2. The doctor in his evidence has stated that the claimant has suffered disability of 43% to

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particular limb and 14% to whole body. But the Tribunal has taken the whole body disability at 9%, which is on the lower side.

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Thirdly, due to the accident, the claimant has sustained grievous injuries. She was treated as inpatient for a period of 5 days. Even after discharge from the hospital, she was not in a position to discharge her regular work. She has suffered lot of pain during treatment. Considering the same, the compensation awarded by the Tribunal under the heads of 'pain and sufferings' and other incidental expenses are on the lower side. Further, the Tribunal has failed to grant any compensation for 'loss of amenities' and 'loss of income during laid-up period'. Hence, he sought for allowing the appeal.

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On the other hand, the learned counsel for the Insurance Company has raised following counter contentions:

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Re:Negligence

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The accident occurred due to contributory negligence of claimant as well as the rider of the motorcycle bearing Registration No.KA-05-JS-2943. The claimant has contributed 10% to the accident. She was crossing the road where there was no zebra crossing. Therefore, the Tribunal has rightly held that the claimant has also contributed 10% to the accident.

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Re:Quantum of compensation

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Firstly, even though the claimant claims that she was earning Rs.15,000/- per month, she has not produced any documents to establish her income. Therefore, the Tribunal has rightly assessed the notional income of the claimant as Rs.8,000/- per month.

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Secondly, the Tribunal after considering the evidence of the doctor PW-2 and considering the

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injuries sustained by the claimant, has rightly assessed the whole body disability at 9%.

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Thirdly, the injuries suffered by the claimant are minor in nature. She was inpatient in the hospital for a period of 5 days. Considering the injuries sustained by the claimant and her age and avocation of the claimant, the overall compensation awarded by the Tribunal is just and reasonable compensation. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties and perused the judgment and award. The advocates are made available separate copies of the original records.

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The case of the claimant is that on 20.7.2017 when the claimant almost crossed the Konanakunte Main Road, near Surabhi Hotel from East to West direction, at that time, Hero Honda Activa

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bearing registration No.KA-05-JS-2943 being ridden by its rider at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant fell down and sustained grievous injuries. Immediately, she was shifted to nearby Sri Sairam Hospital. After recovering, she has filed a case against the rider of the Hero Honda Activa bearing Registration No.KA-05-JS-2943. To prove her case, she herself examined as PW-1 and examined Dr, Nagaraj B. N., as PW-2 and produced 13 documents. REG : Negligence

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As per Sketch - Ex.P3, it is very clear that the road was proceeding from North to South. The claimant was proceeding from East to West and she has crossed 90% of the road. The motorcycle which was coming from North towards South has come extreme right side and dashed against the claimant.

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It is very clear that the Spot Sketch, Mahazar and the complaint that the rider of the motorcycle alone was negligent in causing the accident. The Tribunal has erred in holding that the claimant was contributed 10% negligence to the accident.

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RE:Quantum of compensation

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The claimant claims that she was earning Rs.15,000/- per month. She has not produced any documents to prove her income. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2017, the notional income has to be taken at Rs.11,000/- p.m.

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As per wound certificate, the claimant has sustained fracture of left tibia. PW-2, the doctor has stated in his evidence that the claimant has suffered physical disability of 43% to left lower limb and 14%

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to whole body. Therefore, taking into consideration the deposition of the doctor, PW-2 and injuries mentioned in the Wound Certificate, I am of the opinion that the whole body disability can be assessed at 14%. The claimant is aged about 27 years at the time of the accident and multiplier applicable to his age group is ‘17’. Thus, the claimant is entitled for compensation of Rs.3,14,160/(Rs.11,0001217*14%) on account of 'loss of future income'.

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The nature of injuries suggests that the claimant must have been under rest and treatment for a period of 3 months. Therefore, the claimant is entitled for compensation of Rs.33,000/- (Rs.11,000*3 months) under the head ‘loss of income during laid up period’.

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Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He was treated as inpatient for more than 5 days in the

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hospital. He has suffered lot of pain during treatment and he has to suffer with the disability stated by the doctor throughout his life. Considering the same, I am inclined to enhance the compensation awarded by the Tribunal under the head of ‘pain and suffering’ from Rs.40,000/- to Rs.60,000/- and the claimant is entitled for the compensation under the head of 'loss of amenities' as Rs.40,000/-.

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Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the following compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	40,000	60,000
Medical expenses	67,133	67,133
Food, nourishment, conveyance and	10,000	10,000

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attendant charges
Loss of income during laid up period	0	33,000
Loss of amenities	0	40,000
Loss of future income	1,46,880	3,14,160
Future medical expenses	20,000	20,000
Total	2,84,013	5,44,293

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In the result, the appeal is allowed in part . The judgment of the Claims Tribunal is modified.

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The claimants are entitled to a total compensation of Rs.5,44,293/- as against Rs.2,84,013/- awarded by the Tribunal.

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The Insurance Company is directed to deposit the entire compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.

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This Court while condoning the delay, has denied the interest for a period of 214 days. Hence, the

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claimant is not entitled for the interest for the delayed

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period in filing the appeal.

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Sd/JUDGE

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HA/-

Smt Rajeshwari Bayi @ Rajeshwari v. Sathyanarayana B.N.

Case brief

What is this about?

What did the court decide?

Smt Rajeshwari Bayi @ Rajeshwari v. Sathyanarayana B.N.

Case brief

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