IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2017 :BEFORE:
THE HON’BLE MR.JUSTICE B. SREENIVASE GOWDA M.F.A. NO. 4128/2016 (MV) BETWEEN:
MR. ABDULLA D. K., S/O HAJI A. K. ADAM, AGED 51 YEARS, R/AT DENTHAR HOUSE, KARAYA VILLAGE AND POST, BELTHANGADY TALUK, PRESENTLY R/AT RAZIYA MANZIL, FAIZAL NAGAR, PADIL POST, MANGALURU – 575 002. … APPELLANT (BY SRI. GURUPRASAD B. R., ADVOCATE) AND:
THE MANAGING DIRECTOR, K.S.R.T.C. K.H. ROAD, BENGALURU – 560 027 ... RESPONDENT (BY SRI. K. NAGARAJ, ADVOCATE) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DTD 28.08.2015 PASSED IN MVC NO.760/2010 ON THE FILE OF THE MEMBER, MACT-III, 2ND ADDITIONAL DISTRICT & SESSIONS JUDGE, D. K. MANGALURU, 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 The claimant has preferred this appeal seeking enhancement of compensation awarded by the Tribunal.
2. With the consent of the learned counsels appearing for the parties, the appeal is heard and disposed of finally. Perused the Judgment and award passed by the Tribunal.
3. As there is no dispute regarding certain injuries sustained by the claimant in the road traffic accident that occurred on 14.09.2009 due to the rash and negligent driving of a KSRTC bus by its driver and liability of the corporation, the only point that arises for consideration in the appeal is:
“Whether compensation of Rs.3,60,000/- with interest at 6% p.a., awarded by the Tribunal is just and reasonable or does it call for enhancement?”
4. As per Ex.P5 – Wound Certificate, the claimant had sustained the following injuries:
(1) Comminuted fracture of lower left leg; and (2) Comminuted fracture of Metatarsal bone.
The injuries sustained and treatment underwent by the claimant are also evident from Ex.P-7 Discharge summary issued by the City Hospital, Kadri, Mangaluru, Ex.P8 the disability certificate issued by Wenlock District Hospital, Ex.P9 OPD book, Ex.P17 Medical Bills 183 in numbers, and Ex.P18 X-Ray report, and they are corroborated by the oral evidence of the claimant and doctor who were examined as PWs.1 to 2 respectively. Considering the nature of injuries sustained by the claimant, a sum of Rs.75,000/- awarded by the Tribunal towards pain and sufferings is just and reasonable and there is no scope for enhancement under this head.
5. Learned counsel appearing for the parties after going through the medical bills produced by the claimant in detail have jointly submit that bills produced at Sl.Nos.125 and 181 for a sum of Rs.45,491/- and Rs.75,491/- respectively, totally amounting to Rs.1,20,982/- is already included in the final bill and excluding the said sum of Rs.1,20,982/- from Rs.2,85,381/-, a sum of Rs.1,64,399/- may be awarded towards ‘medical expenses’. Accordingly, a sum of Rs.1,64,399/- is awarded towards ‘medical expenses’.
6. The claimant claims to have been earning Rs.4,20,000/- per year by doing business in arecanut, coconut and other agricultural produces in weekly market at various places in Dakshina Kannada District. But, it is not established by adducing cogent evidence. Therefore, the Tribunal considering the duration of treatment and period of laid up, has rightly awarded a sum of Rs.60,000/- under the head loss of income during laid up period. The same is just and proper and there is no scope for enhancement of the same.
7. Regarding awarding of compensation towards loss of future income, the learned counsel for the claimant submits that the claimant after sustaining the aforesaid injuries, was finding difficulty in doing business and therefore, he prays for awarding compensation towards loss of future income, whereas the learned counsel for the respondent – KSRTC, firstly submits that the doctor who has treated the claimant is not examined. PW2 doctor in his evidence has stated that the claimant has suffered disability of 40% to the limb and he has not stated any thing about functional disability. He further submits that the claimant is a businessman and as per the Bank statement produced by the claimant, there is no decrease in his income. Therefore, he submits no compensation can be awarded towards loss of future income.
8. The claimant has sustained comminuted fracture of lower left leg and fracture of metatarsal bone. PW2 doctor who is a member of the Medical Board has stated that the claimant has suffered disability of 40% to the limb. In the absence of evidence of the doctor as to disability caused to the whole body, 1/3 of the disability stated by the doctor to the lower limb will be the disability caused to the whole body which will be around 13.33, which disability may not have any impact on the future earning of the claimant. Further, the Bank statement of the claimant does not show any decrease in his business turnover. Neverthless claimant has to bear with the said disability and certain amount of discomfort and unhappiness for the rest of his life. Therefore, considering the nature of injuries sustained by the claimant and disability stated by the doctor, at 40% to the lower limb, justice would be met if a sum of Rs.1,25,000/- is awarded towards permanent disability and loss of amenities and it is awarded.
9. The Tribunal which had an opportunity of seeing the injuries sustained by the claimant was justified in awarding a sum of Rs.50,000/- towards future medical and incidental expenses. Therefore, there is no scope for enhancement of compensation:
Hence, the compensation awarded by the Tribunal is reassessed as under:
10. Accordingly, the appeal is allowed in part. The judgment and award of the Tribunal dated 28.8.2015 passed in MVC No.760/2010 by the II Addl. District Judge & III Addl. MACT, Mangaluru (DK) stands modified. The claimant is entitled for an additional compensation of Rs.1,39,399/- with interest at 6% p.a., (excluding interest on Rs.50,000/- awarded towards future medical expenses) from the date of claim petition till the date of realization. The respondent is directed to deposit the additional compensation with proportionate interest at the rate of 6% p.a., from the date of claim petition till the date of deposit. Out of the additional compensation amount, a sum of Rs.1,00,000/- shall be kept in FD any nationalized Schedule Bank for a period of two years with a right to withdraw periodical interest from time to time. Balance amount with proportionate interest shall be released in favour of the claimant. The Tribunal while releasing the amount, shall also give the Fixed Deposit Certificate to the claimant so as to enable him to withdraw FD amount on maturity without approaching the Tribunal once again. The Bank is also directed to release the FD amount on maturity without insisting for further orders from the Tribunal.
Ordered accordingly.
PL* SD/- JUDGE