Partly allowed

Smt. Geetha H S v. the Manager

Karnataka HC20 Dec 2024MFA/8755/2018

Case brief

AI extract

What is this about?

The High Court enhanced the compensation awarded to an injured pedestrian in a motor accident case. While upholding the finding of 10% contributory negligence, the Court added Rs.50,000 as global compensation for incidental expenses and loss of income, raising the total to Rs.2,57,100.

What did the court decide?

Compensation enhanced by Rs.50,000/- (Total Rs.2,57,100/- with interest) directed to be deposited by Respondent 1.

Smt. Geetha H S Vs the Manager — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:53062 MFA No. 8755 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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M.F.A NO. 8755 OF 2018 (MV-I)

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BETWEEN:

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SMT. GEETHA H.S W/O KEMPARAJU K AGED ABOUT 37 YEARS R/AT NO.15, 5^TH CROSS 2^ND MAIN, J.P. NAGAR HEGGANAHALLI BANGALORE NORTH VISHWANEEDAM BANGALORE-91

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…APPELLANT

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(BY SRI. SHRIPAD V. SHASTRI, ADVOCATE- [VC])

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AND:

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Digitally signed by SHAKAMBARI Location: HIGH COURT OF KARNATAKA

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1 . THE MANAGER UNITED INDIA INSURANCE CO. LTD 5^TH & 6^TH FLOOR KRUSHI BHAVAN BUILDING HUDSON CIRCLE BANGALORE-01

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2 . MR. DINESH R S/O REVANNASIDAPPA NO.682, IN FROM OF ANJANEYA TEMPLE 1^ST STAGE, PEENYA BENGALURU-560 058

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…RESPONDENTS

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(BY SRI. B.A. RAMAKRISHNA, ADVOCATE; R2-SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.08.2018 PASSED IN MVC NO.1912/2017 ON THE FILE OF THE 10^TH 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 MFA HAVING BEEN RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT, DELIVERED/PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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CAV JUDGMENT

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(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)

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This Misc.First Appeal is filed by the injured claimant

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seeking enhancement of compensation awarded by the

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Court of Small Causes & Motor Accident Claims Tribunal, Bengaluru vide judgment and award dated 31.08.2018 in MVC No.1912/2017 on various grounds.

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The parties are referred to as per their ranking before the Tribunal for the sake of convenience.

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It is the case of the petitioner/appellant that on

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22.03.2017 at 5.30 p.m., she was going home by walk on

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the side of the road near Yeshwanthpur. At that time,

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Scorpio Car bearing No.KA-04-MH-1566 came in a rash

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and negligent manner and dashed to her. Due to the impact, she fell down and sustained injuries. Immediately she was taken to ESI Hospital. Later, she was referred to Spine Care and Ortho Care Hospital in which she was treated as in-patient.

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It is the case of the appellant that, prior to accident, she was hale and healthy and was working in Apex Garments and earning Rs.10,000/- per month. On account of accidental injuries, she suffered permanent disablement and lost earning capacity. As such, she sought for compensation of Rs.25,00,000/- by filing a claim petition before the Tribunal.

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After issuance of summons, both respondents appeared before the Tribunal through their respective counsels and filed their written statements. The first respondent-Insurer, in its written statement denied the issuance of insurance policy and also denied occurrence of the accident involving its insured vehicle. Insurer's contention is that, its liability if any, is subject to terms

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NC: 2024:KHC:53062 MFA No. 8755 of 2018

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and conditions of the policy and if the conditions of the policy are found to have been violated, its liability should be exonerated. It is prayed for dismissal of the claim petition.

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6. The second respondent-owner-cum-driver of

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the offending scorpio car admitted the occurrence of the accident involving his car, but, he has denied the negligence on his part. According to him, the accident took place due to the negligence of the petitioner herself as she was walking in the middle of the road. He contended that his car was having insurance coverage at the time of accident and he had valid D.L. He contended that first respondent-insurer is liable to indemnify.

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The Tribunal, based on the pleadings of the

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parties, framed three issues for its consideration and answered first issue in the affirmative and second issue partly in affirmative and awarded the compensation which is challenged in this appeal.

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Before the Tribunal, the petitioner has

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examined herself as PW.1 and got marked 20 documents. She also examined two witnesses i.e. PWs 2 and 3. The respondents did not adduce any evidence.

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After hearing the parties and also on perusal of materials on record, the Tribunal awarded a total compensation of Rs.2,19,000/- out of which, reckoned 10% towards contributory negligence on the part of the petitioner and awarded Rs.1,97,100/- under various heads. Dissatisfied with the said compensation so awarded, the petitioner is before this Court seeking enhancement.

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Heard arguments of both the side and perused the records.

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It is submitted by the counsel for the appellantpetitioner that claimant was a tailor by profession and used to earn substantial amount by way of monthly salary and in addition to that she used to earn over time allowance of Rs.2000/- per month. Thus, she was earning

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Rs.12,000/- per month. Because of these injuries so sustained by her as per the wound certificate, she has suffered disability which is not considered by the Tribunal. The counsel for the petitioner would submit that, as she is a lady doing the tailoring business in Apeksha Garments and now she is unable to continue her tailoring work as she was doing prior to the accident. Because of fractures of fibia and tibula, she has suffered lot. The said injuries are grievous in nature. Hence, taking into consideration of all these aspects, it is prayed by the petitioner's counsel to enhance the compensation amount as prayed for.

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As against this submission counsel for respondent No.1 submits that, whatever the compensation so awarded by the Tribunal is proper and it has properly held about the negligence on the part of the petitioner with regard to the said accident. She being a pedestrian would have taken care of using the road on which traffic is more. Because of her negligence, the said accident has taken place. Therefore, rightly the Tribunal has reckoned

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the 10% contributory negligence on the part of the petitioner. According to him, the appeal has no merit and is liable to be dismissed.

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So far as occurrence of the accident is

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concerned, respondent no.2 has clearly admitted in his objection statement. But, contends that there is negligence on his part. As per the evidence of petitioner, the said accident has taken place because of rash and negligent driving of offending car owned and driving by respondent no.2 when she was walking on the road. It is contended by respondent no.2 that, at the time of accident, petitioner was walking in the middle of the road. This fact is not properly denied by the petitioner. It is the duty of the road users may be a pedestrian or drivers of the vehicle much follow the traffic rules and regulations and if the road is open they can drive the vehicle as rash as they can. When they anticipate any pedestrian or obstruction, all the available precautions are to be taken by the drivers of the vehicle. When petitioner was moving

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NC: 2024:KHC:53062 MFA No. 8755 of 2018

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on the middle of the road, it was expected by respondent no.2 to avoid the accident by taking all available precautions. To substantiate his plea no evidence is lead except the bald denial in the written statement. In the absence of the same, in view of the documents produced by petitioner herself, so also the evidence placed on record, the petitioner has not followed the rules and regulations of using the road. Thus, she also contributed her negligence in the said accident. Rightly the Tribunal has come to the conclusion that, she has contributed to the extent of 10% in causing the said accident. In my opinion, such finding of the Tribunal require no interference as it is based on factual evidence adduced by the petitioner. Therefore, I do not find any error committed by the Tribunal in coming to such conclusion.

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So far as award of compensation is concerned,

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it is stated by the claimant that, she was working in Apeksha Garments and was earning Rs.10,000/- besides O.T of Rs.2000/- per month. In order to prove her

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avocation and income, she has produced, salary slip (Ex.P10), Identity card (Ex.P11) and pass book (Ex.P12). Further, the wound certificate (Ex.P7) shows that the claimant has sustained swelling, deformity restricted movements at left elbow, swelling, deformity, tenderness, restricted movements at right leg, 4 cm. cut lacerated wound at right dorsal aspect of foot. The x-ray reveals that fracture of radial head left elbow, fracture of tibia and fibula both bones of right leg. According to the doctor, the above said injuries are grievous in nature. She has also produced discharge summary vide Ex.P8 which discloses that she was treated as an inpatient for a period of 10 days in Spine Care and Ortho Care Hospital and ESI Hospital and she has also undergone surgery.

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While passing the award, the Tribunal has taken into consideration based upon the injuries sustained and also other factors has awarded the compensation towards pain and suffering, attendant charges, extra-nutritious food and conveyance, physical disablement, loss of

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amenities and future medical expenses. The Tribunal has not considered about the loss of income during laid up period, medical expenses. So far as loss of future income is concerned, there is no evidence placed by the petitioner that she has been terminatedd from the Garment factory that means she must have continued in the similar capacity at the post she was working prior to the accident. No doubt she must be having some ESI benefits and must have taken treatment both as in patient as well as out patient. During this period she must have taken medical

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leave and because of that she must have lost the medical leave at her credit. In addition to the medical expenses, she must also have spent certain money towards other expenses like special diet etc. On over all reading of the evidence placed on record, she must have some money towards special diet etc. and must have incurred some other medical expenses also. She cannot enjoy the amenities which she was enjoying prior to the accident. She must have lost income during treatment period. Taking into consideration of all these aspects, if certain

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NC: 2024:KHC:53062 MFA No. 8755 of 2018

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global amount towards the said expenses and loss of income is awarded in addition to the compensation awarded by the Tribunal, it would meet the ends of justice.

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Therefore, looking to the nature of injuries sustained by the claimant and also the income being earned by the claimant, the amount of compensation awarded by the Tribunal is on the lower side. Hence, it is

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just and proper to award a global compensation of Rs.60,000/- in all. Thus, the claimant is entitled for enhanced compensation of Rs.50,000/- in addition to the compensation awarded by the Tribunal. Total

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compensation to which the claimant is entitled to is Rs.2,57,100/- with interest @ 8% p.a.

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Resultantly, I pass the following:

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ORDER

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(i) Appeal is allowed in-part .

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(ii) The judgment and award dated 31.8.2018 passed by the X Addl. Judge, Court of

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NC: 2024:KHC:53062 MFA No. 8755 of 2018

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Small Causes, MACT, Bengaluru, is hereby modified.

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(iii) Appellant is entitled to compensation of Rs.2,57,100/- as against Rs.1,97,000/awarded by the Tribunal.

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(iv) Respondent No.2-Insurance Company is directed to deposit the compensation awarded by the trial Court if not already deposited and also the enhanced compensation along with interest.

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(v) Send back the trial Court records along with a copy of this judgment forthwith.

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Sd/(RAMACHANDRA D. HUDDAR) JUDGE

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SK List No.: 1 Sl No.: 2

Smt. Geetha H S v. the Manager

Case brief

What is this about?

What did the court decide?

Smt. Geetha H S v. the Manager

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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