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2020 DIGILAW 1775 (KAR)

Anu Bharadwaj R @ Anupama v. Mujju

2020-09-09

ALOK ARADHE, H.T.NARENDRA PRASAD

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JUDGMENT H.T. Narendra Prasad, J. - This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimant being aggrieved by the judgment dated 08.12.2014 passed by the Motor Accident Claims Tribunal seeking enhancement of compensation. 2. Facts giving rise to the filing of the appeal briefly stated are that on 30.12.2009 the claimant was proceeding in Qualis Car bearing registration No.KA-05-C-3651 along with her friends. When the car reached near 2nd railway gate on NH-206 Road, Birur, Kadur Taluk, the car being ridden by its driver at a high speed and in a rash and negligent manner, while overtaking the Lorry bearing registration No.KA-09-9032 which was going ahead, dashed against the right hind portion of the Lorry. As a result of the aforesaid accident, the claimant and other inmates in the car sustained grievous injuries and were hospitalized. 3. The claimant filed a petition under Section 166 of the Act on the ground that she was working as an Advocate and was earning Rs.10,000/- p.m. It was pleaded that she also spent more than Rs.5,00,000/- towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent riding of the car driver. On service of notice, the respondent No.2 filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the negligence of the claimant herself and the accident took place solely due to rash and negligent driving of the offending vehicle. The age and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition. Notice to respondent No.1 is dispensed with. 4. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant herself was examined as PW-1 and Dr.Nagaraj B.N. as PW-6 and other witnesses as PW-2 to PW-5 and got exhibited documents namely Ex.P1 to Ex.P28. On behalf of the respondents, neither any witnesses were examined nor documents were got marked. The claimant herself was examined as PW-1 and Dr.Nagaraj B.N. as PW-6 and other witnesses as PW-2 to PW-5 and got exhibited documents namely Ex.P1 to Ex.P28. On behalf of the respondents, neither any witnesses were examined nor documents were got marked. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending Lorry bearing registration No.KA-09/9032 by its driver, as a result of which, the claimant and inmates in the car sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.10,99,000/- along with interest at the rate of 8% p.a. Being aggrieved, this appeal has been filed. 5. Shri Gurudeva Prasad, learned counsel for the claimant contended that at the time of the accident claimant was aged about 27 years and she was working as an Advocate and was earning Rs.10,000/- per month and she has produced Ex.P21-Salary certificate issued by Shri M. Babu, Advocate, to show that he was paying salary of Rs.8,000/- per month to the claimant. The Tribunal is not justified in taking the notional income of the claimant as only Rs.6,000/- per month. Secondly, he contended that due to the accident, claimant had suffered permanent physical impairment and loss of physical function to whole body. She has examined Dr.Nagaraj B.N. as PW-6. In his testimony, he has deposed that the claimant has suffered disability of 45% in respect of whole body, permanent physical impairment and loss of physical function to whole body. Because of this disability, the claimant was unable to do her regular work. Tribunal has failed to consider the disability in respect of whole body. Thirdly, he has contended that due to the accident, claimant has suffered the following injuries; "a. Severe tenderness over the post aspect of neck b. Complete loss of sensation over both the lower limbs c. Cervical spine injury to (C5 & C6) with cord injury and other injuries." 6. The claimant was hospitalized and she was in-patient for a period of 12 days. Injuries are grievous in nature. She has suffered a lot of pain during the treatment. The compensation awarded by the Tribunal under the heads pain and suffering is on lower side. The claimant was hospitalized and she was in-patient for a period of 12 days. Injuries are grievous in nature. She has suffered a lot of pain during the treatment. The compensation awarded by the Tribunal under the heads pain and suffering is on lower side. Fourthly, he has contended that since, the compensation awarded by the Tribunal under loss of amenities and comfort, permanent physical impairment is on lower side. Hence, he sought for enhancement of the compensation. 7. Per contra, learned counsel appearing for the Insurance Company has contended that even though the claimant has produced Ex.P21-Salary certificate but it is very clear from the evidence that she was enrolled as an Advocate during the month of April, 2009, and she met with an accident during the month of December, 2009, and she has not examined the author of Ex.P21. Therefore, the Tribunal has rightly considered the notional income of the claimant as Rs.6,000/- per month. Secondly, he has contended that PW.6-Doctor, who is examined by the claimant is not a doctor, who has treated the claimant. He has deposed that claimant has suffered 45% of physical whole body disability. Therefore, Tribunal has rightly assessed the disability at 30%. Thirdly, he has contended that injuries suffered by the claimant are minor in nature and she was in-patient for a period of 12 days. Hence, the amount of compensation which has been awarded is just and proper and does not call for interference and hence, he sought for dismissal of this appeal. 8. We have considered the submissions made by the learned counsel for the parties and have perused the judgment and award dated 08.12.2014 along with original records. 9. It is not in dispute that the claimant has suffered injuries due to the road accident occurred on 30.12.2009 due to rash and negligent driving of the Car bearing No.KA-05-C-3651. Due to the accident, she has suffered the aforesaid injuries. She was in-patient for a period of 12 days. She has suffered a lot of pain during the treatment. Taking into consideration of deposition of PW.1 and Wound Certificate-Ex.P6, Discharge Summary-Ex.P7, we are inclined to enhance compensation under the head pain and suffering from Rs.75,000/- to Rs.1,00,000/-. 10. At the time of accident, the claimant was working as an Advocate. She was in-patient for a period of 12 days. She has suffered a lot of pain during the treatment. Taking into consideration of deposition of PW.1 and Wound Certificate-Ex.P6, Discharge Summary-Ex.P7, we are inclined to enhance compensation under the head pain and suffering from Rs.75,000/- to Rs.1,00,000/-. 10. At the time of accident, the claimant was working as an Advocate. As per Ex.P21-Salary Certificate issued by Shri M.Babu, Advocate, wherein it is certified that claimant was working as a junior advocate and he was paying Rs.8,000/- per month to her. Taking into consideration of Ex.P21 and the deposition of the claimant since she was a practicing advocate, monthly income of the claimant can be considered as Rs.8,000/- per month. Claimant has examined Dr. Nagaraj B.N. as PW.6. He has stated that she has suffered 45% of whole body impairment. He was not a doctor who treated the claimant. She was taking treatment with Dr.Thimmappa Hegde with whom she was taking regular follow up treatment. Claimant has not produced any document to establish that after the accident, due to disability, she was unable to practice as an Advocate and she was unable to do her regular work. Therefore, taking into consideration of the deposition of the Doctor-PW.6 and the Wound Certificate-Ex.P6, we are of the opinion that whole body disability can be assessed at 45%. At the time of the accident, claimant was aged about 24 years. Tribunal has rightly considered the multiplier of 18 to the age group of 20-25years. Taking into consideration the age of the claimant as 24 years, the claimant is entitled to Rs.7,77,600/- (Rs.8,000 x 12 x 18 x 45%) on account of loss of future earning capacity. The claimant has suffered grievous injuries and remained in-patient for more than 12 days and thereafter, has received follow up treatment. In view of the enhanced income of the claimant from Rs.6,000/- to Rs.8,000/- the loss of income during the laid up period to be enhanced from Rs.60,000/- to Rs.80,000/-. Due to the accident, the claimant has suffered the aforesaid injuries and she was in-patient for a period of 12 days. Even after discharge from the hospital, she is taking regular follow up treatment. Taking into consideration of all these aspects, the compensation awarded by the Tribunal towards Attendant charges, Conveyance, other incidental charges and etc., is enhanced from Rs.75,000/- to Rs.1,00,000/-. Even after discharge from the hospital, she is taking regular follow up treatment. Taking into consideration of all these aspects, the compensation awarded by the Tribunal towards Attendant charges, Conveyance, other incidental charges and etc., is enhanced from Rs.75,000/- to Rs.1,00,000/-. The compensation awarded under other heads is intact. 11. Thus, the compensation awarded by the Tribunal is modified as under: Compensation under different Heads As awarded by the Tribunal (Rs.) As awarded by this Court (Rs.) Pain and sufferings 75,000 1,50,000 Medical expenses 3,00,000 3,00,000 Diet, Food, Nourishment and etc., Attendant charges, Conveyance and other Incidental charges and etc., 75,000 1,00,000 Loss of income during laid up period 60,000 80,000 Loss of future income 3,88,800 7,77,600 Loss of amenities 1,00,000 1,00,000 Permanent Physical Impairment 1,00,000 1,00,000 TOTAL 10,98,800 16,07,600 The claimant is entitled to a total compensation to the tune of Rs.16,07,600/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 8% p.a., from the date of petition till payment is made. To the aforesaid extent, the judgment and award dated 08.12.2014 passed by the Claims Tribunal is modified. Accordingly, the appeal is allowed in part .