IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 10448 OF 2013 (MV) BETWEEN A. S. Ponappa S/o Somaiya Aged about 53 years Working at Vector Glass Factory Bommasandra, Bangalore Now residing at Emmatal Village Kadanakolli Post N. Coorge – 571201.
... Appellant (By Sri. Suresh M.R. - Advocate for Appellant) AND 1. T.M. Siddabyrappa S/o Late Moregowda Major, R/at Thadasighatta Dodd bale Post Nelamangala Taluk-562123 Bangalore Rural District.
2. The Manager The Oriental Insurance Company Ltd., No. 401/2, F1 Swasthik Manandi Arcade SC Road Opp: Sheshadripuram Police Station Bangalore – 560020.
... Respondents (By Sri. K Poornabodha Rao - Advocate for R-2;
Vide order dated 13.01.2015, notice to R-1 is dispensed with) This MFA is filed u/s 173(1) of MV Act against the judgment and award dated 9.7.2013 passed in MVC No. 9308/2009 on the file of the 18th Additional Judge, Court of Small Causes, Member, MACT-4, Court of Small Causes, Bangalore partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for admission this day, the court delivered the following:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal.
2. This appeal is directed against the judgment and award dated 09.07.2013 rendered by the MACT, Bangalore in MVC No.9308/2009 wherein compensation of Rs.72,000/- with interest @ 6% p.a. has been awarded.
3. The factual matrix of the appeal is that on 8.7.2006 at about 1.30 p.m. when the petitioner was going to home by walk, the rider of the motor cycle bearing Regn.No.KA-02-EB-8182 came from behind with high speed and in a rash and negligent manner and dashed against the petitioner, as a result of the same, he sustained grievous injuries and took treatment in the hospital and spent huge amount towards his treatment. He was aged 49 years and was working as Gunman Security guard and was earning Rs.8,000/- p.m. On all these grounds, the claim petition was filed before the Tribunal, seeking compensation.
4. After service of notice, respondents entered their appearance through their respective counsel and filed written statements denying the entire petition averments and sought for dismissal of the claim petition.
5. Based upon the pleadings of the parties, Tribunal framed the issues. In order to substantiate his case, petitioner himself got examined as PW.1 and got marked Exs.P1 to P9. On behalf of respondents RW.1 and RW.2 were examined and Exs.R1 to R7 were got marked. After hearing the arguments advanced by learned counsel for the parties and on evaluation of oral and documentary evidence available on record, the Tribunal passed the impugned judgment, awarding compensation of Rs.72,000/- with interest @ 6% p.a. from the date of petition till the date of deposit. It is this judgment which is under challenge on various amongst other grounds.
6. Learned counsel for the appellant contends that the award passed by the court below is contrary to law, facts, material evidence on record. The Tribunal without considering the medical evidence on record and the injuries sustained by the petitioner has failed to award just compensation. Further, the Tribunal has to failed to consider that the petitioner was inpatient for a period of 28 days at Venakateshwara Health Centre and awarded meager compensation towards pain and suffering and loss of earning during laid up period and the same has to be enhanced. Further, the Tribunal has not properly assessed the income of the petitioner by looking into his avocation as a Gunman Security guard who was earning monthly income of Rs.8,000/-. The Tribunal has failed to award compensation towards loss of future earnings due to disability and future medical expenses as against the injuries sustained by him. On all these grounds, learned counsel for the appellant seeks for enhancement of compensation by allowing the appeal.
7. Per contra, learned counsel for the respondent – insurance company contends that the driver of the offending vehicle did not possess valid and effective driving licence at the time of accident. But admitted the issuance of insurance policy in respect of the offending vehicle and its validity as on the date of the accident. He contends, the Tribunal on evaluation of entire oral and documentary evidence on record, has awarded just and fair compensation, which does not call for interference of this Court. Accordingly, sought for dismissal of the appeal.
8. Having regard to this strenuous contentions as taken by learned counsel for the appellant and so also, counter made by learned counsel for the insurance company, it is relevant to state that the injuries suffered by the petitioner in the road traffic accident due to the actionable negligence on the part of the driver of the offending vehicle, is not in dispute. Further, PW.1 in his evidence has stated that he has sustained injuries such as fracture of tibia and fibula of right leg and other injuries all over the body and he had taken treatment at Sri Venkateshwara Health Centre as an inpatient from 8.7.2006 to 5.8.2006 where operations were conducted and discharged with advice to take follow-up treatment and he is still under treatment. Reliance was made on Ex.P2 – discharge summary, Medical certificate at Exs.P6 and P7 and X-ray at Ex.P9. On evaluation of this oral and documentary evidence, the Tribunal awarded compensation in a sum of Rs.72,000/- under different heads.
9. It is pertinent to note that the petitioner while seeking compensation towards disability factor, has not proved the said aspect by examining the Doctor who treated him though he states that he has sustained injuries Type I compound fracture both bone right leg. Further, PW.1 has stated that at the time of accident he was working as Gunman Security guard and earning Rs.8,000/- p.m. and due to the accidental injuries he could not attend to his work and he has lost his income. But he has not produced any documentary evidence in proof of income. Having gone through all these oral and documentary evidence available on record and considering the nature of injuries sustained by the appellant and the treatment taken by him, I deem it just and proper to award global compensation of Rs.50,000/- in addition to what has been awarded by the Tribunal. Accordingly, I have to proceed to pass the following:
ORDER Appeal is allowed in part. Consequently, the judgment and award passed by the Tribunal in MVC No.9308/2009 is hereby modified. The claimant/appellant is entitled for a global compensation of Rs.50,000/- in addition to Rs.72,000/- awarded by the Tribunal. It is made clear that the global compensation awarded by this Court shall not carry any interest.
The Respondent-insurance company shall deposit the compensation awarded by this Court, before the Tribunal, within six weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be released to the claimant, on proper identification.
Office is directed to draw the decree accordingly.
Sd/- JUDGE DKB