Smt. Hemavathi M K Vs Magmahdi General Insurance Co. Ltd.

SMT. HEMAVATHI M K W/O NAGESH S AGED ABOUT 34 YEARS, R/AT NO 20/1, 8TH CROSS NAGASANDRA POST, NEAR ROCK LINE STUDIO VENUGOPALNAGAR BENGALURU - 560 073

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…APPELLANT

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(BY SMT.USHA S M, ADVOCATE)

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AND:

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Digitally signed by ANNAPURNA G Location: HIGH COURT OF KARNATAKA

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MAGMAHDI GENERAL INSURANCE CO LTD., OFFICE AT NO.706, 2ND FLOOR 2ND STAGE, 9TH CROSS, WEST OF CHORD ROAD BASAVESHWARANAGAR BENGALURU - 560 086

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SRI NATARAJA G S/O GANGAPPA AGED ABOUT 40 YEARS, R/AT NO.167/1, ADARSHANAGAR ARISHANAKUNTE, NELAMANGALA TALUK BENGALURU RURAL KARNATAKA - 562 123

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NC: 2025:KHC:43243 MFA No. 4210 of 2020

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HC-KAR

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…RESPONDENTS

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(BY SRI. PRADEEP B, ADVOCATE FOR R1; V/O DTD 17.1.2024, NOTICE TO R2 IS D/W)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.05.04.2019 PASSED IN MVC NO.7566/2017 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSE JUDGE AND THE MACT, (SCCH-5), BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the claimant being aggrieved by the judgment and award dated 05.04.2019 in MVC No.7566/2017 passed by VIII Additional Small Causes Judge and the MACT (SCCH-5), Bengaluru, (for short 'Tribunal').

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Though appeal is slated for admission, with consent of learned advocates appearing for both the sides, it is taken up for final disposal.

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For the sake of convenience, the parties are referred to as per their rankings before the Tribunal.

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HC-KAR

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The brief facts of the case of both the parties before the Tribunal are as follows:

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4.1. On 29.09.2017, at about 5.00 p.m., the

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claimant sustained grievous injuries while traveling in a Bus bearing registration No.KA-52-2544. As a result of the impact, she suffered grievous injuries and has suffered permanent disability. With these reasons, the claimant has prayed for awarding the compensation.

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Respondent No.2 is the owner and respondent No.1 is the insurer of the offending vehicle. Respondent No.2 remained ex parte before the Tribunal.

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The respondent No.1-insurer filed its written statement, denying the contentions of the claim petitioner and also denied its liability to pay the compensation due to breach of terms and conditions of the policy of insurance. With these reasons, it prayed to dismiss the claim petition.

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From the rival contentions of the parties, the tribunal framed necessary issues, for its determination.

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NC: 2025:KHC:43243 MFA No. 4210 of 2020

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HC-KAR

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The claimant to prove her case examined two

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witnesses as PWs-1 and 2 and marked documents as per Exs.P1 to P16. Respondent No.1 has not led any oral and documentary evidence.

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The tribunal, after hearing both parties, appreciating the material and evidence on record held that the accident occurred due to rash and negligent driving of the vehicle. The tribunal awarded the following amount of compensation:

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Sl.No.	Head of compensation	Amount in Rs.
I	PECUNIARY DAMAGES (Special Damages)
1.	Expenses relating to:
	A) to treatment, hospitalization, medicines, transportation (Rs.8,981/- rounded off to Rs.9,000/-	9,000-00
	b) nourishing food and miscellaneous expenditure	5,000-00
2.	Loss of earnings which the injured would have made had he not been injured, comprising	-
	a) Loss of earnings during period of treatment	-
	b) Loss on account of disability	50,000-00
3.	Future medical expenses	--
II	NONPECUNIARY DAMAGES (General Damages)
4	Damages for pain, suffering and	50,000-00

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HC-KAR

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	trauma as a consequence of injuries	the
5.	Loss of amenities (and/or loss prospects of marriage)	of	15,000-00
6	Loss of expectation of (shortening of normal longevity)	life
	To	tal	1,29,000-00

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10. Heard the arguments of the learned counsel

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appearing for the claimants as well as learned counsel for respondent No.1.

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Learned counsel for the appellant/claimant contended that although the claimant has suffered permanent disability, no amount of compensation has been awarded under the said head. Further, the compensation awarded under other heads are also on lower side. Therefore, prays for enhancement of the compensation.

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12. Learned counsel for respondent No.1 submits that the claimant has not produced sufficient material to award the compensation under the head of the loss future earning capacity due to permanent disability. A ccording to her case, she was employed in a garment factory and was

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HC-KAR

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earning salary. Although she has produced a salary certificate, she has not examined the author of the said document. Furthermore, she has not produced any records to show that, after the accident, she was either removed from service or had resigned to the job. Under these circumstances, it is to be presumed that she continued to work in the said factory. Therefore, there is no proof of loss of future earnings on account of the injuries sustained in the accident. Hence, he supported the impugned judgment and prayed for dismissal of the appeal.

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13. I t is the contention of the claimant that she had undergone treatment at an Ayurvedic hospital. Except Ex.P8, there are no documents to show that she was under continuous medication for the injuries sustained in the accident. She has not examined any doctor, including the one who treated her, to establish that she is suffering from any permanent disability affecting her earning capacity. The claimant has produced a salary certificate marked as Ex.P9, which pertains to the period from July

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HC-KAR

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2017 to September 2017. As per the certificate, her salary was ranging from Rs.10,673 to Rs.14,423 per month. The accident occurred in September 2017, and she has not produced any record to show that she was either terminated from service or resigned. Since she has failed

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to prove that she is suffering from any permanent disability affecting her earning capacity, the Tribunal has not awarded any compensation under this head.

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14. Considering the amount compensation awarded under other heads, the claimant is entitled to an enhancement of global compensation of Rs.25,000/towards loss suffered during the laid up period and other related heads. The claimant is a lso entitled to an interest on the said amount at the rate of 6% p.a., from the date of petition till its realization. Undisputedly respondents are liable to pay compensation.

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In the result, I proceed to pass the following:

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HC-KAR

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ORDER

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I. The Appeal is allowed in part .

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II. The judgment and award dated 05.04.2019, passed by the VIII Addl.Small Causes Judge and MACT, (SCCH-5), Bengaluru, in MVC No.7566/2017, stands modified.

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III. The claimant is entitled to enhancement of global compensation of Rs.25,000/-, with interest at the rate of 6% p.a., from the date of petition till its realization.

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