THE COMMISSIONER OF INCOME TAX vs. THE KARNATAKA STATE APEX

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2021 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR M.F.A. NO.495 OF 2015 (MV-I) BETWEEN: SMT TASNEEM AHMED, W/O FAROOQ, AGED ABOUT 32 YEARS, FRUIT BUSINESS, R/O NO.4, "E" BLOCK, ABHINAYAM, PHASE I, SRIRAMNAGAR MAIN ROAD, CHENNAI-92. ... APPELLANT (BY SRI SHIVASHANKAR, ADVOCATE) AND: 1. ARUL K,

S/O A KULANDAI NATHAN,

OWNER OF MAHINDRA XYLO CAR

BEARING NO.TN 07/BC-4601,

R/O NO.3/555, AKOC,

MANI SALAI, JAISHANKAR NAGAR,

PALAVAKKAM,

CHENNAI-600041. 2. THE BRANCH MANAGER,

NEW INDIA ASSURANCE CO. LTD.,

"SUTHANAS", K.T STREET,

CHICKMAGALUR - 577101,

POLICY NO. 71180031090100005408

VALID FROM 25/2/2010 TO 24/2/2011. ... RESPONDENTS (BY SRI SUDHAKAR REDDY S.V, ADVOCATE FOR R2, R1 SERVED)

2 THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.07.2014 PASSED IN MVC NO.468/2010 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, MEMBER, MACT, CHIKMAGALUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS M.F.A. COMING ON FOR FURTHER ORDERS, THIS DAY, HEMANT CHANDANGOUDAR J., DELIVERED THE FOLLOWING: JUDGMENT This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) is filed by the claimant seeking enhancement of the amount of compensation, against the judgment dated 11.07.2014 passed in MVC No.468/2010 by the I Addl. District Judge and Member, Motor Accident Claims Tribunal at Chikmagalur (hereinafter referred to as 'the Tribunal' for short). 2. Facts leading to filing of this appeal briefly stated are that on 23.05.2010, when the claimant - Smt.Tasneem Ahmed was proceeding to Chikmagalur from Shimoga along with her husband and brother in Mahindra Xylo car driven by her husband, Farooq Ahmed, near Arabid Cool Estate, Kaimara village on Tarikere - Chikmagalur Road, the said Farooq Ahmed drove the car in a rash and negligent manner and dashed to a roadside bridge and caused the accident, as

3 a result of which, she sustained C1 burst fracture of anterior and posterior arch (neck) and grievous injuries to other parts of the body. Immediately, she was shifted to hospital for treatment. 3. The claimant thereupon filed a petition under Section 166 of the Act inter alia on the ground that the claimant was admitted to Srinidhi Fracture and Orthopedic Centre, Chikmagalur for treatment on 23.5.2010 and 24.5.2010 and thereafter she was shifted to Sagar Hospital, Bangalore as an inpatient from 25.5.2010 and 26.5.2010 and Apollo Hospital, Bangalore for treatment as an inpatient from 26.5.2010 to 5.6.2010. It was pleaded that the claimant has spent more than Rs.6,00,000/- towards medical expenses. It was also claimed that the claimant was doing business having shop in Koymbedu wholesale market at Chennai and earning Rs.20,000/- p.m. and due to the impact of the accident, the claimant is unable to carry on with the work as before. It was also pleaded that the accident took place on account of the rash and negligent driving of the car of the driver.

4 4. After service of notice, respondents appeared through their respective counsel. The respondent - Insurance Company filed written statement, inter alia, in which, the mode and manner of the accident was denied. The age, occupation, income and injuries sustained by the claimant were denied. It was contended that the petition is bad for non-joinder of necessary party as the driver of the car is not made as a party to the proceedings. It was also stated that the compensation claimed by the claimant is highly excessive, speculative and exorbitant. 5. On the basis of the pleadings of the parties, the Tribunal framed the issues and thereafter recorded the evidence. The claimant, in order to prove her case, examined herself as PW-1 and doctors as PWs.2 and 3 and exhibited documents namely Ex.P1 to Ex.P10 and Exs.C1 to C3. On the other hand, the 2nd respondent examined its officer as RW1 and marked the documents as Exs.R1 to R7. 6. The Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the car by its driver, as a result of which,

5 the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.3,53,366/- along with interest at the rate of 6% p.a. Being aggrieved, this appeal is filed by the claimant seeking enhancement of the amount of compensation. 7. Learned counsel for the claimant submitted that the Tribunal has committed an error in not awarding the compensation towards loss of future income having regard to the fact that the claimant has suffered partial and permanent disability at 20%. He further submitted that the amount of compensation awarded under all the other heads are on the lower side and deserve to be enhanced suitably. 8. On the other hand, learned counsel for the respondent - Insurance Company submitted that no evidence has been adduced by the claimant to prove that she has suffered permanent disability. He further submitted that the amount of compensation awarded by the Tribunal under all the heads is just and proper and does not call for any interference.

6 9. We have considered the submissions made by learned counsel for the parties and have perused the record. 10. The only question which arises for our consideration in this appeal is with regard to the quantum of compensation. 11. The claimant has suffered C1 burst fracture of anterior and posterior arch (neck) and grievous injuries to other parts of the body. PW2 - Dr.Prahraj S S, who is neuro surgeon attached to Apollo Hospital, Bangalore where the claimant underwent surgery has stated that the claimant is having limitation of her neck movement and she was advised to wear collar for three to six months. PW3 - Dr.M G Sridhar, who is orthopedic surgeon, has assessed the partial and permanent disability at 20%. PW3 has not treated the claimant but has only assessed the disability. Hence, the permanent and partial disability of the claimant is assessed at 7% having regard to the nature of injuries suffered by the claimant and her avocation.

7 12. Admittedly, the claimant has not produced any evidence with regard to her income except the Income Tax Returns at Ex.P9 which was filed subsequent to the accident and the same cannot be relied upon. Therefore, the notional income of the claimant is to be assessed as per the guidelines issued by the Karnataka Legal Services Authority. Since the accident is of the year 2010, notional income comes to Rs.5,500/- per month. Hence, the claimant is entitled to Rs.78,540/- (5,500/- x 12 x 17x 7/100) towards loss of future income. 13. The claimant is also entitled for enhanced compensation of Rs.30,000/- towards loss of amenities as against Rs.20,000/- awarded by the Tribunal. PW3 - Dr.Prahraj S S has stated in his evidence that the claimant has suffered partial and permanent disability at 20%. The Tribunal in the absence of documentary evidence has not accepted the same. Considering the medical evidence on record, the permanent and partial disability of the claimant is assessed at 7%. The compensation awarded under other heads is just and proper and the same is maintained.

8 14. Thus, the claimant is held entitled to a total compensation of Rs.4,41,906/- as against Rs.3,53,366/- awarded by the Tribunal. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% per annum from the date of filing of the petition till the date of realization of the amount. To the aforesaid extent, the judgment and award dated 11.07.2014 passed in MVC No.468/2010 by the I Addl. District Judge and Member, Motor Accident Claims Tribunal at Chikmagalur is modified. Accordingly, the appeal is disposed of. Sd/- JUDGE Sd/- JUDGE bkm