Partly allowed

Smt. Renu v. Patil v Smt. Vimala Naik

Karnataka HC4 Jul 2023MFA/1241/2015

Case brief

AI extract

What is this about?

The Karnataka High Court modified the motor accident compensation quantum awarded by the Tribunal. Adjusting for notional income and specific injury disabilities, the Court increased the total compensation from Rs.7.20 lakhs to Rs.8.55 lakhs, altering award for future loss of earnings, pain, and amenities.

What did the court decide?

The appeal is allowed in part. The impugned award is modified to Rs.8,55,200/- including interest at 6% per annum from the date of the petition.

Smt. Renu v. Patil Vs Smt. Vimala Naik — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:22932-DB MFA No.1241/2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF JULY, 2023

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO.1241/2015 (MV-I)

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BETWEEN:

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SMT. RENU V. PATIL W/O SRI HARSHA H V AGED ABOUT 30 YEARS R/AT NO.116, I FLOOR 4^TH MAIN, 4^TH BLOCK T.R.NAGAR, BANGALORE-560 028 …APPELLANT

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(BY SRI M R VIJAYA KUMAR, ADVOCATE)

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AND:

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SMT. VIMALA NAIK W/O UDAY KUMAR MAJOR

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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R/AT NO.105, 2^ND FLOOR PARAS MANSION, BRIGADE ROAD BANGALORE-560 025

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FUTURE GENERAL INDIA INSURANCE COMPANY LIMITED PASADENA NO.18/1, (OLD NO.125/A) 3^RD FLOOR, ASHOKA PILLAR ROAD I BLOCK JAYANAGAR BANGALORE …RESPONDENTS

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(BY SRI B.C.SHIVANNEGOWDA, ADVOCATE FOR R2; NOTICE TO R1 DISPENSED WITH V/C/O DT: 11.01.2023)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 18.10.2014 PASSED BY IX ADDITIONAL SMALL CAUSES

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JUDGE, & XXXIV ACMM, MEMBER, MACT-7, COURT OF SMALL CAUSES, BANGALORE IN MVC NO.5620/2012

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL HEARING, THIS DAY, K.S.MUDAGAL.J., DELIVERED THE FOLLOWING:

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JUDGMENT

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“Whether the compensation awarded to the appellant under the impugned award is just?” is the question involved in this case.

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The appellant was the claimant and respondent Nos.1 and 2 were the respondents in M.V.C.No.5620/2012 on the file of IX Additional Small Causes and Additional MACT, Bangalore (SCCH-7). For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the Tribunal.

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On 08.07.2012 at 11.00 p.m. when the claimant was traveling as pillion rider on motorcycle bearing Registration No.KA-02-HL-6012 along with her husband the rider, Tavera Car bearing Registration No.KA-03-AA-0752 hit the claimant near the junction of I Main Road and IV Main Road of Thyagarajanagar and caused the accident. In the accident, the claimant and her husband suffered injuries. At

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NC: 2023:KHC:22932-DB MFA No.1241/2015

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the relevant time, respondent Nos.1 and 2 were the registered owner and insurer of the said car.

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The claimant’s husband filed M.V.C.No.5619/2012 and the claimant filed M.V.C.No.5620/2012 claiming compensation for the injuries suffered by them. The records show that after recording the common evidence, M.V.C.No.5619/2012 was settled out of the Court and M.V.C.No.5620/2012 was taken up for disposal by adjudication. The claimant contended that the accident occurred solely due to actionable negligence on the part of the driver of the car. She further contended that due to the injuries suffered in the accident, she has suffered permanent physical disability thereby she has lost her future earnings. She further contended that due to the accidental injuries she has suffered disfigurement of her face. Thus she claimed compensation of Rs.1,50,50,000/- from the respondents.

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Respondent No.1 did not contest the petition. Respondent No.2 contested the petition denying actionable negligence on the part of the driver of the Car, injuries, permanent physical disability suffered by the claimant, her

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age, occupation, income and its liability to pay the compensation.

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As already pointed out, initially common evidence was recorded in M.V.C.No.5619/2012 and M.V.C.No.5620/2012. On behalf of the claimants, PW1 to PW3 were examined and Ex.P1 to P44 were marked. Respondent No.2 did not lead any evidence.

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The Tribunal on hearing the parties, by the impugned award, held that the accident occurred due to the actionable negligence of the driver of the Tavera Car bearing registration No.KA-03-AA-0752. The Tribunal relying on the evidence of PW3 – Doctor, held that the claimant has suffered permanent physical disability of 15% to the whole body. The Tribunal further held that the claimant has failed to prove her qualification by producing any records, her alleged employment and income by examining the employer. The Tribunal notionally assessed her income at Rs.6,000/- per month, her age at 28 years, awarded the compensation of Rs.1,83,600/- on the head of loss of future earnings.

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The Tribunal in all awarded compensation of

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Rs.7,20,575/- as per the below:

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Sl. No.	Compensation	Compensation amount in Rs.
1.	Loss of future income arising out of 15% disability	1,83,600/-
2.	Pain and sufferings	25,000/-
3.	Loss of amenities of life	25,000/-
4.	Loss of income during laid up period	24,000/-
5.	Actual medical expenses	4,21,450/-
6.	Future medical expenses	25,000/-
7.	Conveyance	6,525/-
8.	Attendant Charges	5,000/-
9.	Food, Nourishment & Diet charges	5,000/-
	TOTAL	7,20,575/-

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Challenging the said award, the respondents have

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not preferred any appeal. The claimant has preferred the above appeal challenging the quantum of compensation awarded.

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Sri.M.R.Vijaya Kumar, learned counsel for the claimant/appellant submits that the claimant was holder of Master of Business Administration Degree, her salary slips and Form No.16 produced before the Tribunal show that she was earning Rs.35,000/- per month. The Tribunal erred in rejecting the evidence of the claimant with regard to her

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income. He further submits that the compensation awarded on the other heads is also on the lower side.

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Per contra, Sri.B.C.Shivannegowda, learned

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counsel for respondent No.2 justifies the impugned award on the ground that the claimant had not produced any record in proof of her qualification nor proved her income by examining her employer. Therefore, the Tribunal was justified in assessing the income notionally. Accordingly, he justifies the compensation awarded on the other heads.

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Analysis

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The occurrence of the accident due to actionable

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negligence on the part of the driver of the car is not in dispute. The only question is with regard to quantum of compensation awarded to the claimant.

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The evidence of PW3 - Doctor who treated the

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claimant and the wound certificate at Ex.P19 show that the claimant had suffered the following injuries:

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1. Fracture of Right Parasymphyseal and left angle of the mandible.

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1. Fracture tibia shaft middle 3^rd region.

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NC: 2023:KHC:22932-DB MFA No.1241/2015

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The Doctor has certified that both the injuries are grievous in nature.

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The evidence of PW3 and Ex.P21 discharge summary show that the claimant was admitted in Fortis Hospital on 09.07.2012 and discharged on 14.07.2012. As per the evidence of PW3, on 10.07.2012 the surgeries were conducted for Tibial Nailing and Arch Bar Fixation and ORIF of fracture of Right Parasymphyseal and Left Angle of Mandible. The evidence of PW3 further shows that again the claimant was admitted into the hospital on 28.08.2012 and underwent Arch Bar removal under General Anesthesia and discharged on 28.08.2012. Even as per the evidence of PW3, the claimant had suffered permanent physical disability of 30% to the left leg and 15% to the face and whole body disability with reference to left leg was 10% and face was 5%. The Tribunal has accepted the same and assessed the disability at 15%.

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So far as the income of claimant, though she claimed to be working with Avvas Infotech Pvt. Ltd., Bengaluru, as a Team Leader, as rightly held by the Tribunal she did not examine her alleged employer to prove Ex.P27

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and Ex.P31 her pay slips, Ex.P32 and Ex.P40 her Form No.16. Therefore, the Tribunal was justified in assessing the income notionally. Considering the age, occupation of the victim, prevailing wage rates and cost of living at the relevant time, the Tribunal should have assessed the income of the claimant at Rs.7,000/- per month instead of Rs.6,000/-. The doctor assessed the disability at 15%. Considering the same, loss of income of the claimant comes to (7,000 X 15%) Rs.1,050/- per month. For the age of 28, the applicable multiplier is 17. Therefore, the compensation payable on the head of loss of future earnings comes to Rs.2,14,200/- (1,050 X 12 X 17).

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Learned counsel for the claimant relying on the judgment of the Hon’ble Apex Court in the case of Rekha Jain v. National Insurance Company Limited¹ submits that the injuries suffered by the victim causes 100% permanent physical disability, therefore, the assessment of the permanent physical disability is on the lower side. Reading of the said judgment shows that the claimant in that case was a film actress and her face was disfigured. By such disfigurement, she suffered total functional disability as she

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1 (2013) 8 SCC 389

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NC: 2023:KHC:22932-DB MFA No.1241/2015

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lost opportunity in her profession. Therefore, in the said case, the disability was assessed at 100%. It is not the case of the claimant herein that she was a TV screen artist or Cine artist and her facial disfigurement has nexus with her job. Therefore, the said case would not be applicable to the facts of the present case.

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The claimant suffered two fractures in her face and one fracture in her leg i.e., tibia. Considering the nature of the injuries and period of hospitalization, the compensation awarded on the head of Pain and Sufferings is on the lower said. The Tribunal should have awarded Rs.75,000/- on the said head.

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Considering the nature of the injuries compensation awarded on the head of loss of amenities is also on the lower side. The Tribunal should have awarded the same at Rs.50,000/-.

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The compensation awarded on the head of loss of income during the laid up period should be commensurate to notional income. Therefore, the just compensation payable on the said income comes to Rs.28,000/- (Rs.7,000/- x 4).

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The compensation awarded towards medical

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expenses is based on the proof produced by the claimant. Therefore, same needs to be maintained.

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The Doctor quantified the future medical expenses at Rs.25,000/-. Having regard to the medical evidence and other evidence on record, the Tribunal should have awarded Rs.50,000/- on the said head.

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The compensation awarded on the heads of conveyance, attendant charges and food and nourishment do not warrant any interference. Therefore, the just

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compensation payable is as follows:

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Sl. No.	Compensation heads	Compensation amount in Rs.
1.	Loss of future income arising out of 15% disability	2,14,200/-
2.	Pain and sufferings	75,000/-
3.	Loss of amenities of life	50,000/-
4.	Loss of income during laid up period	28,000/-
5.	Actual medical expenses	4,21,450/-
6.	Future medical expenses	50,000/-
7.	Conveyance	6,525/-
8.	Attendant Charges	5,000/-
9.	Food, Nourishment & Diet charges	5,000/-
	TOTAL	8,55,175/- (Rounded to 8,55,200/-

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For the aforesaid reasons, the appeal deserves to

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be allowed in part. Hence, the following:

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ORDER

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The appeal is allowed in part. The impugned award is modified as follows:

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(i) The claimant is entitled to compensation of Rs.8,55,200/- as against Rs.7,20,575/- with interest thereon at 6% per annum from the date of the petition till its realization.

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(ii) Respondent No.2/insurer shall deposit the said amount before the Tribunal after adjusting amount already deposited if any, within four weeks from the date of receipt of copy of this order.

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(iii) On such deposit, the Tribunal shall release the said amount to the claimant.

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(iv) Registry shall transmit the amount in deposit if any and also the trial court records to the MACT forthwith.

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Sd/JUDGE

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Sd/JUDGE

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KSR,NC

Smt. Renu v. Patil v Smt. Vimala Naik

Case brief

What is this about?

What did the court decide?

Smt. Renu v. Patil v Smt. Vimala Naik

Case brief

What is this about?

What did the court decide?

What the court decided

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