IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K. SOMASHEKAR MISCELLANEOUS FIRST APPEAL No.1811/2015 (MV) BETWEEN:
A. P. SANDHYA RANI D/O A.M. PUTTASWAMY, W/O H.V. SURESH KUMAR, AGED ABOUT 52 YFARS, R/AT AREKERE VILLAGE, SRIRANGAPATNA TALUK, MANDYA TALUK ... APPELLANT (BY SRI SRINIVAS V., ADVOCATE) AND:
1. K.C.SIDDARTHA R/AT KUDUREGUNDI, GJJALAGERE POST, MADDUR TALUK, MANDYA DISTRICT-571401.
2. MANAGER ICICI LOMBARD MOTOR INSURANCE CO.LTD, R/OF KANTHARAJ URS ROAD, SARASWATHIPURAM, MYSORE-570009.
... RESPONDENTS (BY SRI JANARDHAN REDDY, ADVOCATE FOR SRI B. C. SHIVANNE GOWDA, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:10.07.2014 PASSED IN MVC NO.1255/2011 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, MACT, SRIRANGAPATNA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is posted for hearing on interlocutory application. With the consent of learned counsel for the appellant and learned counsel for the respondents, the matter is taken up for final disposal.
2. The factual matrix of the appeal are as under:
It is stated in the claim petition that, on 07.05.2011 at about 10.00 pm on Bengaluru-Mysuru Main Road before Shiva Conventional Hall situated at Channegowdana Doddi wherein petitioner was proceeding as pillion rider in the motor bike driven by her son, at that moment, the rider of the Hero Honda motor bike bearing registration No.KA-11/W-1628 driven the same at high speed in a rash and negligent manner and dashed to the back side of the motor bike in which petitioner was proceeding as pillion rider, as a result of which the petitioner and her son fell down from the motor bike and sustained grievous injuries to the left leg. Immediately, the injured was taken to the Government hospital, Madduru and thereafter, shifted to K.R. Hospital, Mysuru, in order to get greater treatment, wherein the injured took treatment as inpatient and her left leg was operated and she was discharged from the hospital on 08.06.2011. It is further stated that the petitioner has sustained injury to her left leg which is found to be permanent disability which, consequently, resulted in loss of income and also caused lot of pain and suffering to her. As on the date of accident, the petitioner was aged about 48 years and was doing agricultural work and also milk vending business and had monthly income of `6,000/-. These are the contentions taken in the claim petition before the Tribunal.
3. The first respondent was the owner of the offending motor bike and the second respondent was the insurer of the offending motor bike and it reveals that a valid policy of insurance was in existence as on the date of the accident.
4. In pursuance of service of notice in the claim petition, both respondents have put in their appearance, but only the second respondent/insurance company has resisted the claim petition by filing objection in detail. The second respondent insurance company has denied all the averments made in the claim petition except admitting the fact that the offending motor bike involved in the accident which belonged to the first respondent was insured with it and had a valid policy of insurance. On these grounds urged in the written statement, the second respondent sought for dismissal of claim petition made by the petitioner.
5. Based upon the pleadings of the parties, the Tribunal has framed issues and given finding by assigning reasons for granting compensation.
6. The petitioner examined herself as P.W.1 and examined another witness as P.W.2 and documents Exs.P.1 to P.18 were tendered in the evidence of P.W.1, Exs.P.19 to 21 were produced by P.W.2. Respondents did not come forward to let in any oral evidence. Through the Court Commissioner, the evidence of C.W.1/orthopedic surgeon of Aravind Nursing Home, Mysuru, was recorded. Exs.C.1 to C3 were tendered in the evidence of C.W.1. Exs.R.1 to R4 produced by the second respondent were marked with the consent of the parties.
7. On evaluating the evidence of P.Ws.1 and 2, so also evidence of C.W.1-Dr. Maralasiddappa, as well as Ex.P.4 wound certificate, Ex.P.6 relating to recovery mahazar conducted by the concerned authorities, Ex.C.1- inpatient case sheet of the petitioner, Ex.C.3-x ray the Tribunal awarded compensation in a sum of `2,35,000/- with interest at 6% per annum, from the date of filing the petition till the date of realization. The same has been challenged under this appeal urging various grounds.
8. Whereas, learned counsel for the appellant- claimant who has taken me through evidence of P.W.1 and 2, so also, evidence of C.W.1-said to be Dr.Maralasiddappa, being orthopedic surgeon of Aravind Nursing Home, Mysuru, and also documents Exs.C.1 to C.3, contended that the Tribunal has committed an error to hold income of the claimant in a sum of `3,000/- per month as the appellant/claimant is an agriculturist and also doing milk vending business to eke out livelihood. Therefore, in this appeal, it requires to be intervened to that aspect seeking enhancement of compensation. For loss of income during laid up period the Tribunal awarded only a sum of `9,000/- and is found to be inadequate. Insofar as amenities, the Tribunal has awarded a sum of `10,000/-. It is also found to be inadequate. It is contrary to the evidence of P.W.1 and 2 as well as evidence of C.W.1, said to be examined through Court Commissioner. All these contentions are taken by the learned counsel and sought for intervention of this Court to the impugned judgment and award made by the Tribunal.
9. Per contra, learned counsel for the respondent/ insurance company has taken me through the evidence of C.W.1/Doctor said to be examined through Court Commissioner wherein the injured has undergone surgery and also provided treatment to her which indicates in the document at Ex.C.1./in patient case sheet maintained by the concerned hospital relating to the injured, so also the wound certificate at Ex.P.4 as well as spot mahazar Ex.P.3 said to be conducted by the investigating officer as well as documents at Exs.R.1 to R.4 said to be produced by the respondent in support of their contention taken in the statement of objection filed. Therefore, in this appeal, it does not call for any interference, wherein the Tribunal has awarded compensation of `2,35,000/- with interest at 6% per annum, under various heads as indicated in the impugned judgment and it is found to be just and reasonable and therefore, seeking dismissal of the appeal as devoid of merits.
10. In the context of the contention taken by the learned counsel for appellant and respondent No.2, it is relevant to state that the accident occurred on 07.05.2011 at about 10.00 pm as reflected in the claim petition made before the Tribunal seeking compensation, wherein, it is stated that while the appellant was proceeding on a motor bike driven by her son, the Hero Honda motor bike bearing No.KA-11/W- 1628 hit on the back side of the motor bike in which appellant was going, as a result of which the appellant fell down and sustained grievous injuries on her left leg. The motor bike bearing No.KA-11/ W-1628 is said to be insured under the second respondent and a valid policy of insurance was in existence as on the date of the accident. Therefore, there is no dispute that the said offending motor bike was said to be insured under the second respondent as the same has been reflected in the statement of objections filed by the insurance company to resist the claim made by the appellant. On a cursory glance of evidence of P.W.1 and 2, so also the evidence of C.W.1 Dr. Maralasiddappa said to be examined through the Court Commissioner and also Ex.C.1 inpatient case sheet maintained relating to injured and so also Ex.C.3 x-ray film said to be issued by the concerned authorities, so also wound certificate, Ex.P.4, it requires to be interfered with the impugned judgment relating to heads of compensation i.e., loss of income during the period of treatment, so also, income of the appellant held by the Tribunal, at `3,000/- per month. But it is found to be on lower side. Therefore, it requires to be enhanced to a sum of `3,500/-, in addition to `3,000/-. Insofar as loss of amenities is concerned, the Tribunal has awarded a sum of `10,000/- and it is found to be inadequate. Therefore, keeping in view the evidence of P.W.1 and 2 as well as document produced by the petitioner to establish the case against the respondent, it requires interference and a sum of `15,000/- needs to be awarded in addition to `10,000/- awarded by the Tribunal. Insofar as raising claimant’s income from `3,000/- to `6,500/- the loss of earning capacity is enhanced to `1,21,680/-. (`6,500/- x 12 x 12% x 13 = `1,21,680/-). Further, loss of income during laid up period awarded by the Tribunal in a sum of `9,000/- is found to be inadequate as injured took treatment as indicated in the evidence of C.W.1. Therefore, it requires addition in a sum of `10,500/- in addition to `9,000/-. However, injured is aged about 52 years and has sustained injuries as reflected in the evidence as well as document at Ex.P.4-wound certificate and also Ex.C.3-x ray and so also the inpatient case sheet maintained by the hospital relating to injured are concerned, it requires to be award compensation in a sum of `25,000/- relating to future medical expenses. Therefore, in all in this appeal, enhancement in a sum of `1,16,180/- in addition to `2,35,000/- awarded by the Tribunal. Therefore, it requires to be maintained in a tabular form in this appeal.
Compensation awarded by the Tribunal (`) Enhancement in this appeal(`) Pain and sufferings 40,000/- -
during laid up period
11. Further, interest awarded by the Tribunal at 6% shall be maintained even to the extent of enhancement of compensation also. In view of the aforesaid reasons and findings, I have to proceed to pass the following:
ORDER (i) The appeal is hereby allowed.
(ii) Appellant is entitled to enhanced compensation of `1,16,180/- with interest at 6% in addition to `2,35,000/- awarded by the Tribunal. Accordingly, respondent No.2/insurance company shall be directed to deposit the said enhanced amount with interest at 6% per annum before the Tribunal, within a period of four weeks from the date of receipt of certified copy of this order.
Office to draw the award, accordingly.
SD/- JUDGE kcm