IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.3248/2012 (MV) BETWEEN:
ARUN KUMAR, S/O. K. MURTHY, AGED ABOUT 25 YEARS, R/AT No.140, ARUN OIL MILL, VALMIKI NAGAR, 10TH CROSS 2ND MAIN ROAD, MYSURU ROAD BENGALURU. … APPELLANT (BY SRI. SHRIPAD V. SHASTRI, ADVOCATE) AND:
1. NATIONAL INSURANCE CO. LTD., R.O. SUBHARAM COMPLEX, No.144, M.G. ROAD, BENGALURU-01, BY ITS MANAGER.
2. MR. M.V. SUBRAMANYA, S/O. M.V. VENKATAPPA, PROP: M/S. S.U.R.M.S. PETE, MALAVALLI, MANDYA DISTRICT. ... RESPONDENTS (BY SMT. MANJULA N. TEJASWI, ADVOCATE FOR R-1, R-2 DISPENSED) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.10.2011 PASSED IN MVC.NO.5152/2009 ON THE FILE OF THE IV ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BENGALURU, 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 This appeal is filed challenging the judgment and award dated 18.10.2011 passed in M.V.C.No.5152/2009, on the file of the MACT, Bangalore (SCCH No.6) seeking enhancement of compensation.
2. It is the case of the appellant/claimant that on 8.12.2006 at 7.45 a.m. when he was walking at the extreme left side of the road, a bus bearing No.KA-11-B-6666 belonging to respondent No.2 insured by respondent No.1 – Insurance Company came in East-West direction at high speed in rash and negligent manner and dashed against him. As a result, the claimant sustained multiple injuries and he was taken to NIMHANS Hospital for first aid and thereafter to Victoria Hospital for further treatment. He has spent Rs.40,000/- for treatment. The claimant was earning Rs.4,000/- per month working as a welder in Chitra Engineering Works. Now he is unable to do any work and hence prayed for a compensation of Rs.3,00,000/-.
3. In pursuance of the claim petition, respondent No.1 appeared and filed the written statement denying negligence on the part of the driver of the bus and also denied the income of the claimant, nature of injuries and his avocation.
4. The claimant in order to substantiate his claim examined himself as P.W.1 and got marked the documents at Exs.P.1 to 14 and also examined the doctor as P.W.2. The respondents did not choose to lead any evidence before the Tribunal. The Tribunal, after considering both oral and documentary evidence, allowed the claim petition in part granting compensation of Rs.80,716/- with interest at 6% per annum from the date of petition till its realisation.
5. Being aggrieved by the said judgment and award, the present appeal is filed. In the appeal memorandum, it is contended that the Tribunal has committed an error in not awarding just and reasonable compensation under all the heads. The Tribunal also did not consider the nature of injuries sustained by the claimant i.e., concussive head injury, fracture of frontal bone, diffused oedema, open wound, for which he took treatment as inpatient for more than 10 days. The Tribunal also did not accept the evidence of doctor who has spoken with regard to 30% whole body disability and committed an error in taking only 6% as functional disability. Hence, prayed this Court to re-visit the compensation awarded by the Tribunal.
6. The learned counsel for the appellant in his arguments vehemently contended that the Tribunal did not accept the evidence of P.W.2 doctor on the ground that he is not the doctor who treated the claimant. The Tribunal has committed an error in not appreciating the material available on record and awarded meager compensation. Hence, it requires interference by this Court.
7. The Tribunal also committed an error while deciding the question of negligence. The oral and documentary evidence available on record clearly shows that the driver of the bus is only responsible in occurring the accident. The respondents also did not lead any evidence. The Tribunal adverse inference drawn is contrary to the material on record and ought not to have taken the contributory negligence while considering issue No.1 to the extent of 15% and the same is erroneous.
8. The learned counsel for the appellant also contended that the driver of the bus has not been examined and the Tribunal ought not to have presumed the things in the absence of cogent evidence.
9. Per contra, the learned counsel for respondent No.1 – Insurance Company contended that the Tribunal considered the place of accident i.e., near the road median and also noticed the sketch and mahazar. It shows that P.W.1 was crossing the road where he ought not to have crossed the road. Hence, the Tribunal rightly answered issued No.1 that P.W.1 also contributed to the accident.
10. The learned counsel for respondent No.1 contended that it was an accident of the year 2006. The claimant himself has pleaded in the petition that he was earning Rs.4,000/- per month and the same has been taken by the Tribunal and there is no need to enhance the compensation. The Tribunal considered all the aspects and awarded just the reasonable compensation. Hence, prayed the Court to dismiss the appeal as there are no grounds to interfere with the order with regard to the contributory negligence.
11. Having heard the learned counsel for the appellant and the learned counsel for respondent No.1, the points that arise for the consideration of this Court are:
(i) Whether the Tribunal has committed an error in not awarding just and reasonable compensation and whether it requires interference of this Court?
(ii) Whether the Tribunal has committed an error in considering contributory negligence on the part of P.W.1 to the extent of 15% and whether it requires interference of this Court?
Point No.(ii):
12. The main contention of the learned counsel for the appellant is that the Tribunal ought not to have considered contributory negligence and committed an error in the absence of the evidence of driver of the bus. The contention of the respondent – Insurance Company is that the Tribunal has considered the sketch and mahazar and rightly came to the conclusion that P.W.1 also contributed to the accident. Having considered the material available on record and the cross- examination of P.W.1, wherein he states that he cannot tell as to the distance between the signal light as shown in the sketch and as the respondents also did not examine the driver before the Tribunal, who is the right person to speak with regard to the negligence on the part of P.W.1, in my opinion, the Tribunal cannot imagine the same. On perusal of the sketch – Ex.P.4, it is evident that P.W.1 is almost near the place of road median and no doubt there is no space to cross the road. It is not the case of the respondent that claimant was crossing the road, but he was almost standing near the road median. When such being the case, the Tribunal ought not to have taken note of the same and come to a conclusion that there was contributory negligence on the part of the claimant. In the cross-examination of P.W.1, nothing is elicited that he was crossing the road, but the dispute is only with regard to the place of incident and where he was standing. When such being the case, in the absence of cogent material before the Court and merely because the claimant was standing near the road median, in the absence of the evidence of the driver of the bus, it is not a ground to come to the conclusion that there was a contributory negligence on the part of P.W.1. Hence, I am of the opinion that the Tribunal has committed an error in coming to the conclusion that there was a contributory negligence on the part of P.W.1 to the extent of 15%.
Point (i):
13. It is the case of the claimant that the Tribunal has awarded a meagre compensation under all the heads and not awarded just and reasonable compensation. Having considered the wound certificate, which is marked as Ex.P.6 and also the other medical records, which are produced before the Court, i.e., NIMHANS records and also the discharge summary, it is clear the he has sustained fracture of frontal bone, diffused cerebral oedema and he was an inpatient for a period of 10 days and he took conservative treatment. Having considered the nature of injuries, the Tribunal has committed an error in awarding an amount of Rs.18,000/- under the head pain and suffering and the same has to be enhanced to Rs.30,000/- since the accident has taken place in the year 2006.
14. In the absence of medical bills and having taken note that he has taken treatment in Victoria Hospital, the Tribunal considered the same and awarded the compensation of Rs.5,000/- under the head medical expenses, which, in my opinion, do not require interference.
15. The Tribunal awarded an amount of Rs.1,000/- under the head attendant charges. The discharge certificate which is produced before the Court as Ex.P.9 discloses that he was an inpatient for a period of 10 days. When such being the case, the Tribunal committed an error in awarding an amount of Rs.1,000/-. Hence, the same is enhanced to Rs.7,000/-.
16. It is the contention of the claimant that he was earning Rs.4,000/- per month working as a welder and in his evidence he deposed that he was earning Rs.6,000/- per month. On perusal of claim petition, it is evident that he has claimed Rs.4,000/-. The Tribunal considering that the accident was of the year 2006, took the income as Rs.4,000/- per month. Hence, I do not find any reason to interfere with the same.
17. The Tribunal has awarded an amount of Rs.4,000/- under the head loss of earning during laid up period. The records reveals that he was an inpatient for a period of 10 days and also sustained fracture, which requires minimum three months for uniting the same and also he is in need of rest. Hence, the Tribunal has erred in taking the loss of income only for a period of one month. Hence, it is appropriate to take the loss of income for a period of four months. Accordingly, I award an amount of Rs.16,000/- (Rs.4,000/- x 4) as against Rs.4,000/- under the head loss of income during laid up period.
18. The Tribunal awarded an amount of Rs.48,960/- under the head future loss of income taking the disability at 6%. The main contention of the learned counsel for the appellant is that the though the doctor who is examined as P.W.2 deposed before the Court that he is having permanent disability of 30%, the Tribunal has erred in taking only 6% disability. The Tribunal having lost sight of the nature of injuries sustained by the claimant i.e., fracture of frontal bone, diffused cerebral oedema and that he was an inpatient for more than 10 days and in the absence of any reason for not accepting the evidence of P.W.2 - doctor, ought not to have taken disability to the extent of 6%. Hence, I am of the opinion that 12% disability would be just and reasonable. Accordingly, I award a sum of Rs.97,920/- under the head loss of future income (Rs.4,000/- x 12 x 12/100 x 17 = Rs.97,920/-).
19. The Tribunal also awarded an amount of Rs.8,000/- under the head loss of amenities. Having taken his age as 27 years and 12% disability as evaluated by this Court, and the fact that he has to lead rest of his life with disability, it is appropriate to award an amount of Rs.25,000/- under the head loss of amenities.
20. The Tribunal awarded Rs.10,000/- under the head loss of permanent disability. The same does not arise when the future loss of income has been awarded.
21. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed partly.
(ii) The impugned judgment and award is modified granting compensation of Rs.1,80,920/- with interest at 6% per annum as against Rs.80,716/-.
(iii) The Insurance Company is directed to deposit the amount within eight weeks from today.
(iv) In the event, any amount is deposited, the entire amount shall be released to the claimant.
Sd/- JUDGE MD