IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR MISCELLANEOUS FIRST APPEAL NO.9306/2009 c/w MISCELLANEOUS FIRST APPEAL NO.6162/2009 (MV) IN MFA NO.9306/2009 BETWEEN:
A.P. JAYASHREE W/O V.R. SHIVARUDRAPPA AGED ABOUT 53 YEARS R/AT NO.71/4, VIBHUTHI NAGAR 11TH CROSS, NEAR S.M. KALYANA MANTAPA, JARAGANAHALLI BANGALORE-560 078 …APPELLANT (BY SHRI. R. CHANDRASHEKHAR, ADVOCATE) AND:
1. THE MANAGER M/S THE ORIENTAL INSURANCE CO. LTD DIVISIONAL OFFICER-8 NO.22, D.V.G ROAD V.C.PLAZA, BASAVANAGUDI BANGALORE-560 004 2. SRI. XAVIYAR MAJOR S/O SANDYA R/AT NO.381, 8TH ‘C’ CROSS ANANDAPURA, NEW THIPPASANDRA POST BANGALORE-560 075 …RESPONDENTS (BY SHRI. C.R. RAVISHANKAR, FOR R1; NOTICE TO R2 D/W V.O.DATED 15.04.2011) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.4.2009 PASSED IN MVC NO.5899/2008 ON THE FILE OF THE IV ADDL. JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.6162/2009 BETWEEN:
THE MANAGER THE ORIENTAL INSURANCE CO. LTD DIVISIONAL OFFICER-8 NO.22, D.V.G ROAD, V.C.PLAZA BASAVANAGUDI, BANGALORE-4 NOW REPRESENTED BY ITS REGIONAL MANAGER ORIENTAL INSURANCE CO LTD REGIONAL OFFICE, #44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE-560 025 … APPELLANT (BY SHRI. A.N. KRISHNA SWAMY, ADVOCATE) AND:
1. A.P. JAYASHREE W/O V.R. SHIVARUDRAPPA AGED ABOUT 53 YEARS R/AT NO.71/4, VIBHUTHI NAGAR 11TH CROSS, NEAR S.M. KALYANA MANTAPA, JARAGANAHALLI BANGALORE-560 078 2. XAVIYAR S/O SANDYA, MAJOR R/AT NO.381, 8TH ‘C’ CROSS ANANDAPURA, NEW THIPPASANDRA POST BANGALORE-560 075 …RESPONDENTS (BY SHRI. R. CHANDRASHEKHAR, ADVOCATE FOR R1; R2-SERVED BUT UNREPRESENTED) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.4.2009 PASSED IN MVC NO.5899/2008 ON THE FILE OF THE IV ADDL. JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, METROPOLITIAN AREA, BANGALORE, AWARDING A COMPENSATION OF RS.1,21,480/-
WITH INTEREST @ 6% P.A. FROM DATE OF PETITION TILL REALISATION.
THESE MFAs COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT These two appeals are filed by the claimant and insurer respectively. Hence, they are heard together.
2. For the sake of convenience, the parties shall be referred to as per their status before the Tribunal.
3. Heard Shri R.Chandrashekar, learned advocate for the claimant and Shri A.N.Krishna Swamy, learned advocate for the Insurer.
4. Appellant Smt.A.P.Jayashree, filed a claim petition seeking compensation before the Tribunal, contending inter alia, that she had sustained injuries in a road traffic accident caused by the driver of a Car bearing registration No.KA-05-C-8523. The Tribunal on consideration of material on record, has awarded a compensation of Rs.1,21,480/-.
5. The claimant has approached this Court seeking enhancement of compensation. The insurer has challenged the liability aspect on the ground that driver did not possess valid driving licence while he was driving the Car.
6. The appeal presented on behalf of the Insurer does not merit consideration in the light of law laid down by Supreme Court of India in Pappu and others Vs. Vinod Kumar Lamba and another1.
7. So far as claimants’ appeal is concerned, the Tribunal has recorded that claimant had suffered fracture of both bones of lower right leg and abrasion of right ankle near 4th and 5th toe. Claimant was hospitalized for 12 days and could not attend to her regular work for three months. Considering these 1 AIR 2018 SC 592 aspects, the Tribunal has awarded a sum of Rs.45,000/- towards pain and suffering, Rs.31,680/- towards permanent disability, Rs.2,500/- towards attendant charges, Rs.9,000/- toward loss of income during treatment period. Medical expense of Rs.33,300/- has been awarded in full. However, while calculating loss of future income due to permanent disability, the Tribunal has considered claimants’ earning capacity as Rs.3,000/-.
8. Learned advocate for the claimant is right in his submission that in the year 2008, in the absence of any material, this Court has considered the earning capacity of an able bodied person at Rs.4,000/- p.m. and the same is not disputed by the learned advocate for the insurer.
9. In the circumstances, the quantum of compensation is re-computed as follows:
1. Pain and suffering Rs.45,000/-
2. Medical expenses Rs.33,300/-
3. Attendant charges Rs. 2,500/-
4. Loss of earning during treatment period (Rs.4,000/- x 3 months) Rs.12,000/-
5. Loss of future income (permanent disability Rs.42,240/-
Rs.1,35,040/-
Less: compensation awarded By the Tribunal Rs.1,21,480/-
Enhanced compensation Rs. 13,560/-
10. Accordingly, the following:
ORDER (i) The appeal filed by the Insurer is dismissed with a direction to pay and recover;
(ii) The appeal filed by the claimant is allowed in part by enhancing compensation to Rs.1,35,040/- with interest at 6% p.a. from the date of claim petition till the date of deposit excluding interest on the head ‘permanent disability’ as ordered by the Tribunal.
(iii) The Insurer is directed to deposit the enhanced compensation of Rs.13,560/- before the Tribunal within four weeks from the date of receipt of a copy of this order. Out of the said sum, Rs.3,000/- enhanced under the head ‘loss of income during treatment period’ shall carry interest at 6% p.a. from the date of petition till the date of deposit.
(iv) The amount in deposit shall be transmitted to the Tribunal for disbursement in accordance with law.
No costs.
Sd/- JUDGE Yn.