IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A. No.3525/2015 [MV - I] BETWEEN:
SMT A M JAYALAXMAMMA W/O MAHESH AGED ABOUT 41 YEARS R/O 6TH CROSS BEHIND JAYALAKSHMI THEATRE GUTHALU COLONY ARKESHWARA NAGAR MANDYA CITY ...APPELLANT (BY SRI L. RAJA, ADVOCATE) AND:
1. THE MEDICAL OFFICER, PHC, BHARATHI NAGAR K.M. DODDI, MADDURU - TQ. MANDYA - DIST.
2. THE DIRECTOR KARNATAKA GOVERNMENT INSURANCE DEPARTMENT MOTOR BRANCH VISHWESHWARAIAH CENTRE OPP. COFFEE BOARD BANGALORE - 560 001. …RESPONDENTS (BY SRI A.VENKATA SATYANARAYANA, HCGP FOR R-2 R-1 IS SERVED) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.11.2014 PASSED IN MVC NO.37/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant in this appeal prays for enhancement of compensation not being satisfied with the quantum of the compensation awarded in M.V.C. No.37/2011 dated 27.11.2014, on the file of the II Additional Senior Civil Judge and Additional MACT, Mandya.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered by her in a road traffic accident. It is stated that on 22.10.2010, when the claimant was proceeding in her Honda Active vehicle bearing Reg.No.KA-11/U-9394, one LCV ambulance bearing Reg.No.KA-11/G-303 came in a rash and negligent manner with high speed without blowing horn and dashed to the claimant’s vehicle from backside, due to which, the claimant fell down from her vehicle and sustained multiple injuries. Immediately, she was shifted to the Government Hospital, Mandya. It is stated that the claimant was doing agricultural work and also milk vending business, earning a sum of Rs.10,000/- per month and another sum of Rs.5,000/- per month by doing coconut business and also a sum of Rs.10,000/- per month by hiring the auto rickshaw and thereby she used to earn morethan Rs.25,000/- per month.
3. On issuance of summons, respondent No.1 remained absent and respondent No.2- KGID appeared before the Tribunal and filed its statement of objections denying the claim petition averments. However, they admit the issuance of insurance policy. It is also stated that the compensation claimed by the claimant is exorbitant and excessive. Thus, it prayed to dismiss the claim petition.
4. The claimant examined herself as PW-1 and the Doctor as PW-2, apart from marking documents from Exs.P-1 to P-11. The respondent No.2 neither examined any witness nor marked any documents on its behalf.
5. The Tribunal on appreciating the material placed before it, awarded total compensation of Rs.51,000/- with interest at the rate of 9% per annum from the date of petition till the date of deposit, on the following heads:
1. Towards Pain and sufferings 2. Towards Medical expenses, conveyance etc., 3. Towards missing of one tooth Amount in (Rs.) 20,000 5,000 5,000 4. Towards loss of income 6,000 during treatment and rest 5. Towards discomfort, physical inconvenience, loss of future amenities and expectation of life 15,000 Total 51,000 The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
6. Heard the learned counsel for the appellant- claimant and learned HCGP for respondent No.2. Perused the appeal papers.
7. Learned counsel for the appellant-claimant would submit that the compensation awarded by the Tribunal is on the lower side. The Tribunal failed to assess the whole body disability even though the doctor opined at 20% disability to a particular limb. It is submitted that the injury of fracture of lower end radius of right hand would come in the way of her day to day activities and to work as an agriculturist and to do the business in milk vending. Thus, he prays for assessing the whole body disability and awarding compensation for future loss of income due to the disability. The compensation awarded on the other heads are also on the lower side, hence, he prays for allowing the appeal and for enhancement of compensation.
8. Per contra, learned Government Advocate appearing for the respondent No.-2 submits that the compensation awarded by the Tribunal is just compensation, which needs no interference. It is his submission that PW-2 is not the treated doctor. The claimant has also not placed the disability certificate issued by the medical officer. In that circumstance, the Tribunal is justified in not assessing the whole body disability. Thus, he prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and on perusal of the appeal papers, the following questions would arise for consideration in the facts and circumstances of the case;
1. Whether the Tribunal is justified in not assessing the whole body disability in the facts and circumstances of the present case?
2. Whether the claimant is entitled for enhancement of compensation in the facts and circumstances of the present case?
Answer to the above said questions is in the ‘affirmative’ for the following reasons;
The accident occurred on 22.10.2010 involving Honda Activa bearing Reg.No.KA-11/U-9394 and LCV ambulance bearing Reg.No.KA-11/G-303 and the accidental injuries sustained by the claimant are not in dispute in the appeal. The claimant has placed on record the Wound Certificate as per Ex.P.4 which would indicate that the claimant has suffered fracture of lower end radius of right hand and also dental fracture.
Ex.P.9 is the case sheet and Ex.P.8 wound certificate, which would indicate the injury suffered and the treatment taken by the claimant as ‘in patient’ for two days. The doctor PW-2 in his evidence stated that the claimant suffered thirty percent disability to a particular limb, but the doctor has not stated what is the percentage of whole body disability. The doctor who has treated the claimant has not been examined as well as no disability certificate is produced. In the absence of examination of the treated doctor and non-production of the disability certificate, the Tribunal is justified in not assessing the whole body disability. The claimant has stated that he has suffered fracture of lower end radius of right hand and dental fracture. Looking to the nature of the injury suffered by the claimant and the treatment taken by the claimant as inpatient for two days, I am of the view that the compensation awarded on the heads of missing of one tooth, loss of income during treatment and rest and towards discomfort, physical inconvenience, loss of future amenities and expectation of life is on the lower side. Thus, the claimant-appellant would be entitled for the modified enhanced compensation as follows:
SI.No. Heads Amount in (Rs.) 1. Towards Pain and sufferings 2. Towards Medical expenses, conveyance etc., 3. Towards missing of one tooth 4. Towards loss of income during treatment and rest 5. Towards discomfort, physical inconvenience, loss of future amenities and expectation of life 20,000 5,000 10,000 10,000 25,000 Total 70,000 10. Thus, the claimant would be entitled for the enhanced compensation of Rs.70,000/- with interest at the rate of 6% per annum from the date of petition till its realization as against Rs.51,000/- awarded by the Tribunal.
The appeal is allowed in part. The judgment and award passed by the Tribunal is modified to the above extent.
Sd/- JUDGE PN/-