Partly allowed

Bhagyamma v. Divisional Controller

Karnataka HC25 Nov 2024MFA/1072/2019

Case brief

AI extract

What is this about?

Claimant injured by a KSRTC bus suffered left upper limb amputation; Tribunal awarded Rs.3,20,000. The High Court enhanced compensation to Rs.11,56,483, adding amounts under pain and suffering, medical expenses per Ex.P12, loss of amenities, and disability and disfigurement, but refused prosthesis costs for want of evidence and dismissed the application for additional evidence.

What did the court decide?

Enhanced compensation of Rs.8,36,483 with interest at 6% p.a.; I.A.No.1/2021 dismissed.

Bhagyamma Vs Divisional Controller — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:48220-DB MFA No.1072/2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF NOVEMBER, 2024

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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 VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.1072/2019 (MV-I)

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BETWEEN:

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

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BHAGYAMMA W/O H. CHANDRASHEKAR AGED ABOUT 68 YEARS R/AT NO.201, KIRAN NILAYA BEHIND DENTAL COLLEGE VIDYANAGARA, HASSAN-573 201.

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(BY SRI. B. SHARATH KUMAR, ADV.,)

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…APPELLANT

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AND:

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DIVISIONAL CONTROLLER K.S.R.T.C CHICKKAMAGALUR DIVISION CHIKKAMAGALUR-577 101 REGISTRATION NO.KA-18-F-0036.

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…RESPONDENT

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(BY SRI. B. PHALAKSHAIAH, ADV.,)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS IN MVC NO.1696/2017 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND II ADDITIONAL MACT AT HASSAN BE PLEASED TO ENHANCE THE COMPENSATION GRANTED UNDER VARIOUS HEADS, IN THE ABOVE JUDGMENT AND AWARD DATED 17.12.2018, WITH COSTS TO THE APPELLANT AND BE GRANTED SUCH OTHER AND FURTHER RELIEF THAT MAY BE DEEMED NECESSARY TO MEET THE ENDS OF JUSTICE.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT AND ORDER ON I.A.NO.1/2021

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( PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL )

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Questioning the adequacy of compensation awarded to her, claimant in MVC No.1696/2017 on the file of the II Addl. District and Sessions Court and Addl. MACT, Hassan has preferred this appeal.

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Appellant was the claimant and respondent was the sole respondent in MVC No.1696/2017 before the Tribunal. The parties are referred to henceforth according to their ranks before the Trial Court.

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On 04.04.2017 at 11 a.m. when claimant along with her husband was crossing the road near Subash Circle, opposite SBI Bank, Hassan, KSRTC bus No.KA-18 F-0036 hit her and caused her grievous injuries. She was shifted to Government hospital, Hassan and from there for further medical treatment she was shifted to Sparsh Hospital, Bengaluru. She was treated as inpatient in Sparsh Hospital

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NC: 2024:KHC:48220-DB MFA No.1072/2019

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from 04.04.2017 to 29.04.2017. Her left upper limb below elbow was amputated on 11.04.2017 surgically.

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Claimant filed MVC No.1696/2017 before the Tribunal claiming compensation of Rs.45,00,000/- from the respondent alleging that the accident and consequential injury and permanent physical disability was caused due to actionable negligence on the part of the driver of bus No. KA-18 F-0036 which was owned by the respondent. She further claimed that she spent Rs.10,00,000/- for medical treatment and due to permanent physical disability suffered by her she is not able to carry out her agricultural activities, etc. The respondent contested the petition denying the actionable negligence on the part of driver of bus, injury and permanent physical disability alleged by the claimant, her age, income, etc. and sought dismissal of the petition.

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Before the Tribunal, the claimant got herself examined as PW-1, Doctor who treated her at Sparsh Hospital as PW-2 and got marked Exs.P1 to P15. Respondent got examined the driver of the bus as RW-1 and got marked Ex.R1. The Tribunal, on hearing the parties, by the impugned

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judgment and award held that the accident and consequential injuries to the claimant occurred due to actionable negligence on the part of RW-1 namely driver of bus.

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The Tribunal, relying on the evidence of PWs-1 and 2, though assessed the permanent physical disability of the claimant at 25% to the whole body, held that the claimant was a retired Government employee and due to the disability there is no loss of future earnings for her. The Tribunal rejected her claim of being an agriculturist and cultivating her land, based on her own denial in the cross-examination that herself and her husband are doing agricultural work. The Tribunal, in all, awarded compensation of Rs.3,20,000/- as follows:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Pain and sufferings	1,00,000/-
2.	Medical expenses	1,63,283/-
3.	Attendant charges	16,000/-
4.	Conveyance	15,700/-
5.	Nourishment charges	25,000/-
	Total	3,19,983/-
	Rounded off	3,20,000/-

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Shri.B.Sharath Kumar, learned counsel for the

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appellant/claimant submits that having regard to the nature of injuries and medical evidence regarding the same, the

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5 - NC: 2024:KHC:48220-DB MFA No.1072/2019

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compensation awarded under the head of pain and suffering is on the lower side. The Tribunal has committed error in not awarding compensation under the heads of loss of amenities, actual disability, disfigurement and medical expenses shown under Ex.P12.

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Justifying the impugned award, Sri.B.Phalakshaiah, learned counsel for the respondent submits that by the time the accident took place, the claimant was aged 66 years. She was a retired Government employee. As she was getting her pension, there was no loss of future earnings on account of injury suffered by her. When there was no evidence to show that claimant has undergone fixation of prosthesis, on that head, no compensation can be awarded. He submits that since the claimant was a Government employee, the medical bills would have been reimbursed to her and therefore she is not entitled to compensation under medical expenses on the basis of Ex.P12. He seeks dismissal of the appeal.

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The respondent has not challenged the finding of the Tribunal that on 04.04.2017 at 11 a.m. when claimant was crossing the road, RW1-driver of bus No. KA-18 F-0036 drove

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NC: 2024:KHC:48220-DB MFA No.1072/2019

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the said bus in rash and negligent manner and hit the claimant. Respondents have not challenged the finding that the claimant was treated in Sparsh Hospital, Bengaluru between 04.04.2017 to 29.04.2017 for 25 days. The evidence of PW-2 - doctor who treated the claimant in Sparsh Hospital regarding claimant suffering multiple rib fractures and crush injury on her left upper limb with extensive de-gloving were not impeached. According to PW-2, claimant underwent the following course of treatment in Sparsh Hospital:

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i. She underwent debridement of left forearm/hand with left hand wrist fusion with K wire on 4.4.2017.

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ii. Free micro vascular Flap cover of left upper limb with skin grafting on 7.4.2017.

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iii. Post operatively she was mechanical ventilator, the flap-developed arterial shut down in view of hypotension and hypokalemic episodes.

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iv. She underwent left below elbow amputation on 11.4.2017.

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v. Once her medical condition stabilized she was discharged on 29.4.2017, with OPD follow up she did and over a time the wound healed.

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vi. She was assessed for her disability on 22.8.2018 she complains of unable to work as before, pain in the stump and difficulty in breathing.

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NC: 2024:KHC:48220-DB MFA No.1072/2019

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PW-2 deposed that on 05.01.2018 when he

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examined PW-1 claimant, he found the following:

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i.) Upper limb amputation.

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ii.) Trans radial below elbow 75% of permanent impairment.

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According to him, claimant had suffered trans radial 75% permanent impairment. He has not spoken about the permanent physical disability of the claimant to her whole body. The above evidence shows that claimant had suffered multiple rib fractures and her left hand below elbow was amputated. Skin grafting was done. While doing skin grafting, she developed some complication. Having regard to the above facts and circumstances, the compensation awarded under the head of pain and suffering is inadequate and awarding compensation of Rs.1,25,000/- under that head is reasonable one.

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Due to the amputation of her left upper limb below elbow, claimant has lost her ability to operate her left limb. At such age, she needs her both limbs for taking care of herself. Having regard to the nature of injuries and period of hospitalization, the Tribunal ought to have awarded

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compensation under the head of loss of amenities. Reasonably, the same can be computed at Rs.1,00,000/-. It is true that the claimant is retired Government employee and amputation of her left upper limb below elbow has not caused her loss of future earnings. But such disability certainly causes hindrance to her in other activities. Though the Tribunal held that she has admitted in the cross-examination that she has not taken care of the lands of her husband, reading of the cross-examination shows that she says since two years herself and her husband are not looking after the lands. Even in household chores, such disability causes difficulty. In addition, disfigurement is also caused. Therefore, awarding Rs.1,25,000/- under the head of actual disability and disfigurement meets the ends of justice. The fact that PW-1 was treated at Sparsh Hospital was not disputed. Ex.P12 is the receipt issued by Sparsh Hospital which shows that Rs.5,86,500/- was spent during her hospitalization as inpatient. The Tribunal totally overlooked the said evidence. Therefore, medical expenses of Rs.5,86,500/- ought to be added along with Rs.1,63,283/- awarded by the Tribunal.

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Though it is contended that the claimant needs to be awarded compensation for prosthesis, no evidence was

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adduced before the Tribunal in that regard. Before this Court, I.A.No.1/2021 is filed to claim that claimant needs Rs.3,46,500/- for artificial limb. It is important to note that the accident occurred in April 2017. Admittedly, so far, for more than 7 years, claimant has not gone for fixation of artificial limb. Absolutely, no ground is made out as to why such additional evidence was not produced before the Tribunal. Further, such claim cannot be allowed as there is no proof of she undergoing fixation of prosthesis. The other documents produced along with the application were already marked at Exs.P8 and P12. As there is no dispute with regard to the amputation of left upper limb of the claimant below elbow, the photographs produced along with I.A.No.1/2021 are not required for adjudication of the matter in issue. Therefore, I.A.No.1/2021 is liable to be dismissed.

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For the aforementioned reasons, just compensation payable to the claimant is as follows:

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Sl.	Particulars	Compensation
No.		awarded in Rs.
1.	Pain and sufferings	1,25,000/-
2.	Medical expenses
	awarded by the Tribunal	1,63,283/-

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NC: 2024:KHC:48220-DB MFA No.1072/2019

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3.	Additional medical expenses shown in Ex.P12	5,86,500/-
4.	Loss of amenities	1,00,000/-
5.	Disability and disfigurement	1,25,000/-
6.	Attendant charges	16,000/-
7.	Conveyance	15,700/-
8.	Nourishment charges	25,000/-
	Total	11,56,483/-
Com	pensation awarded by	3,20,000/-
the	Tribunal
Enh	anced compensation	8,36,483/-

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The enhanced compensation shall carry interest at 6%

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p.a.

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For the aforementioned reasons, the appeal

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deserves to be allowed in part. Hence, the following:

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ORDER

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i. I.A.No.1/2021 is dismissed.

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ii. Appeal is allowed in part.

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iii. The claimant is awarded enhanced compensation of

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Rs.8,36,483/- with interest at 6% p.a. from the date of petition till its realization.

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iv. Respondent shall deposit the enhanced compensation before the Tribunal within 6 weeks from the date of receipt of copy of the order.

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NC: 2024:KHC:48220-DB MFA No.1072/2019

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v. On such deposit, the Tribunal shall digitally release

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the said amount to the claimant.

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vi. Registry to return the Trial Court records to the

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Tribunal.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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List No.: 1 Sl No.: 37

Bhagyamma v. Divisional Controller

Case brief

What is this about?

What did the court decide?

Bhagyamma v. Divisional Controller

Case brief

What is this about?

What did the court decide?

What the court decided

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