Smt. Harini Vs Alvin D'Souza S/O Jerry D Souza

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NC: 2025:KHC:977 MFA No. 10206 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10^TH DAY OF JANUARY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI MISCELLANEOUS FIRST APPEAL NO. 10206 OF 2018 (MV-I)

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BETWEEN:

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SMT. HARINI, W/O PRASAD, AGED ABOUT 26 YEARS, R/AT DERAJE KELAGINA MANE, SAJIPA NADU, BANTWAL TALUK, D.K DISTRICT - 574 231.

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…APPELLANT

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(BY SRI. VISHWAS, ADVOCATE FOR SRI. NISHIT KUMAR SHETTY, ADVOCATE)

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AND:

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Digitally signed by NANDINI R Location: High Court of Karnataka

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ALVIN D'SOUZA S/O JERRY D'SOUZA, MAJOR, BUSINESSMAN, R/AT 7-84,THARDOLYA GUDDE, JEPPINAMOGARU, MANGALORE TALUK, D.K DISTRICT-575 009.

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BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., II FLOOR, INLAND ORNATE, OPP.HOTEL OCEAN PERL, KODIALBAIL, MANGALORE... D.K DISTRICT - 575 003.

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…RESPONDENTS

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(BY SRI.SRIDHAR, ADVOCATE FOR R2 NOTICE TO R1 DISPENSED WITH, VIDE ORDER DATED 16.12.2019)

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NC: 2025:KHC:977 MFA No. 10206 of 2018

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25/09/2018, PASSED IN MVC NO.690/2017, ON THE FILE OF THE VI ADDITIONAL DISTRICT & SESSIONS JUDGE & MACT, D.K. MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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

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CORAM: HON'BLE MR JUSTICE C M JOSHI

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ORAL JUDGMENT

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Heard learned counsel appearing for the appellant. None appeared for the respondent No.2 even though the matter is slated for the final hearing.

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The appellant who is the petitioner in MVC

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No.690/2017 by the VI Additional District and Sessions Judge and MACT, D.K., Mangaluru is before this Court assailing the judgment dated 25.09.2018, whereby her claim for compensation was partially allowed.

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The factual matter of the case, in short, is that on 17.03.2015, while she was standing by the side of the road at Jeppinamogaru, Mangaluru, a rider of the Motor Cycle bearing registration No. KA-19-EB-9855 came and collided with her,

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resulting in injuries, which include several abrasions and fractures of both the bones of the right leg. She was admitted to Fr.Muller Medical College Hospital and took treatment for 17 days as an inpatient. She was pregnant by five months at the time of the accident and while she was under treatment, she lost her foetus due to abortion. The appellant/petitioner also claims that she was working as a clerk at R.K. Enterprises, owned by PW.2 and was earning Rs.6,000/- per month and due to the accidental injuries, she has lost her job and as such she is entitled for compensation.

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On issuance of notice respondent No.2/Insurance Company before the Tribunal appeared and resisted the petition contending that the compensation claimed is highly exorbitant, imaginary and untenable and that the policy issued by the Insurance Company is subject to terms and conditions, which need to be complied by the owner of the vehicle. It was alleged that the rider was not having effective driving licence.

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On the basis of the above pleadings, the Tribunal framed appropriate issues and after appreciating the evidence of the PW.1 to 3, Exs.P.1 to 12, it proceeded to award compensation of Rs.2,15,000/- under following heads:

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NC: 2025:KHC:977 MFA No. 10206 of 2018

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1.	Pain and suffering	35,000/-
2.	Medical Expenses	52,000/-
3.	Food, attendant and conveyance charges	35,000/-
4.	Loss of income during the period oftreatment andrest	18,000/-
5.	Loss of enjoyment of life	10,000/-
6.	Future treatment	15,000/-
7.	Death of foetus in the womb in the accident	50,000/-
	Total	2,15,000/-

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Being aggrieved by the same, the appellant/petitioner is before this Court in appeal.

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The learned counsel appearing for the

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appellant/petitioner would submit that the compensation awarded by the Tribunal is meager and it does not take into consideration the pain and agony suffered by the appellant/petitioner who was carrying foetus by five months. Due to the injuries suffered by her, there was a miscarriage and therefore, she should have been compensated adequately in that regard. It is contended that the compensation awarded under the head of amenities in life is also

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NC: 2025:KHC:977 MFA No. 10206 of 2018

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abysmal and the Tribunal failed to assess the agonies of a mother who has lost her foetus in the womb.

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As noted above, none appeared for respondent No.2, even though the matter is slated for final hearing.

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On a careful perusal of the Tribunal records and the impugned judgment would show that the appellant/petitioner had suffered fracture of both the bones of left leg and she was an inpatient for more than 17 days. The hospital records show that while she was under treatment, she lost her foetus in the womb. The testimony of the PW.3 would show that in her affidavit she states that the loss of the foetus was due to the accidental injuries. However in the cross-examination, she is unclear as to whether the loss of the foetus was only by reason of the injuries sustained in the accident. She states that she cannot pin pointedly say that the loss of the foetus was due to the accidental injuries and there may be some other causes also. Thus, it is evident that the loss of the foetus in the womb may be attributed to the accidental injuries also. It cannot be ruled out that the indirect effects of the shock and injury on account of the accident,

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NC: 2025:KHC:977 MFA No. 10206 of 2018

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may be the cause for losing the foetus. This aspect was not properly considered by the Tribunal.

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The Tribunal while assessing the compensation under the head of 'pain and sufferings' has not considered the quantum in a proper way and in the considered opinion of this Court, a sum of Rs.40,000/- would be proper and adequate.

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The Tribunal on the basis of the evidence of PW.2, holds that the appellant/petitioner was earning Rs.6,000/- per month. Evidently, the said sum is less than the wages fixed under the Minimum Wages Act, 1948. So also, considering the nature of injuries, the laid up period can be safely be said that it was for five months. Therefore, a sum of Rs.30,000/- (Rs.6,000/- X 5 months) would be adequate in this regard.

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The Tribunal has awarded a sum of Rs.10,000/-, under the head of 'loss of enjoyment and amenities in life' which again is on the lower side when compared to the nature of the injuries has suffered and the appellant/petitioner is not compensated on account of any disability. Therefore, a sum of Rs.50,000/- is awarded to the appellant/petitioner under this head.

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NC: 2025:KHC:977 MFA No. 10206 of 2018

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Lastly, regarding the death of the foetus in the womb, the Tribunal awarded a sum of Rs.50,000/-, for the reasons stated above, it would be proper to award a sum of Rs.1,00,000/- under this head.

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The compensation awarded by the Tribunal in respect of the 'medical expenses', 'food and attendant charges', and 'future treatment' does not call for any interference. Therefore, the appellant/petitioner is entitled for a total compensation of Rs.3,22,000/- instead of Rs.2,15,000/- awarded by the Tribunal under following heads.

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Sl. No.	Particulars	Awarded by the Tribunal in(Rs.)	Awarded by this Court in (Rs.)
1.	Pain and suffering	35,000/-	40,000/-
2.	Medical Expenses	52,000/-	52,000/-
3.	Food, attendant and conveyance charges	35,000/-	35,000/-
4.	Loss of income during the period of treatment and	18,000/-	30,000/-
5.	Loss of enjoyment and amenitiesin life	10,000/-	50,000/-
6.	Future treatment	15,000/-	15,000/-
7.	Death of foetus in the wombinthe accident	50,000/-	1,00,000/-
	Total	2,15,000/-	^3,22,000/-

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NC: 2025:KHC:977 MFA No. 10206 of 2018

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The Tribunal has awarded compensation of Rs.2,15,000/- but the appellant/petitioner is entitled for total compensation of Rs.3,22,000/-. Hence, the impugned judgment and award needs to be modified and the appellant/petitioner is entitled to enhanced compensation of Rs.1,07,000/- (Rs.3,22,000/- - Rs.2,15,000/-), along with interest @ 6% per annum from the date of petition till the date of deposit, in addition to what has been awarded by the Tribunal.

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For the above reasons, the appeal deserves to be allowed in part. Hence, the following:

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ORDER

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i. The appeal is allowed-in-part.

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ii. The appellant/petitioner is entitled for a sum of Rs.1,07,000/- in addition to the compensation awarded by the Tribunal along with interest @ 6% per annum, from the date of petition till the date of deposit.

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iii. Respondent No.2 is directed to deposit the compensation amount within a period of six weeks from the date of this judgment.

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