IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA M.F.A.No.5108/2014 (MV) BETWEEN:
ATEESH.D.HAZRA, S/O. ACHINTYA KUMAR HAZRA, AGED ABOUT 27 YEARS, R/AT NO.36/37, ARPITH BUILDING, 2ND CROSS, TEACHERS COLONY, BSK 2ND STAGE, BANGALORE – 560 070.
(BY SRI.R.KUMAR, ADV.) AND:
1. BP. DHANAPRAKASH REDDY, NO.25, 15TH CROSS, MAHADESHWAR LAYOUT, 16TH MAIN, BTM 2ND STAGE, BANNERGHATTA RAOD, BANGALORE – 560 076.
2. ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, REGIONAL OFFICE, NO.89, 2ND FLOOR, SVR COMPLEX, HOSUR MAIN ROAD, MADIVALA, BANGALORE – 68.
... APPELLANT ... RESPONDENTS (BY SRI.B.C.SHIVANNEGOWDA, ADV. FOR R2 R1 SERVED) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:5.6.2012 PASSED IN MVC NO.424/2011 ON THE FILE FO THE 8TH ADDITIONAL JUDGE, MACT-5, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is by the claimant seeking enhancement of compensation awarded by the Tribunal.
2. With the consent of learned counsel appearing for the parties, the appeal is heard and disposed of finally. Perused the judgment and award passed by the Tribunal.
3. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
4. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 10.11.2010 due to rash and negligent driving of a Tipper Lorry bearing registration No.KA-05-AA-5490 by its driver and liability of the insurer of the offending vehicle, the only point that arises for my consideration in the appeal is:
“Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?”
5. After hearing the learned counsel appearing for parties and perusing the judgment and award of the Tribunal, I am of the view that the compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and hence it is required to be enhanced.
6. As per Ex.P4-wound certificate, the claimant has sustained following injuries:-
a) Fracture of right cervical rib, b) Mandibular fracture c) Severely communenated intra articular fracture left distal radius and head injury The injuries sustained and treatment underwent by the claimant are also evident from Ex.P10-Inpatient bill, Ex.P11-Case sheet, Ex.P12-OPD record, Ex.P13-eighteen X-rays and corroborated by oral evidence of the claimant and doctor, who were examined as PWs-1 and 2 respectively. PW-2, doctor in his evidence has stated that the claimant has suffered disability of 24% to the limb and 8% to the whole body.
7. Considering the nature of injuries sustained by the claimant, a sum of Rs.50,000/- is awarded towards ‘pain and suffering’ as against Rs.40,000/- awarded by the Tribunal.
8. Considering the medical bills produced by the claimant for Rs.1,27,968/- and duration of treatment undergone as inpatient, Rs.1,40,000/- awarded by the Tribunal towards ‘medical expenses’ is just and proper and there is no scope for enhancement under this head.
9. The claimant was treated as inpatient for a period of 09 days at Manipal Hospital. Considering the duration of treatment, Rs.15,000/- awarded by the Tribunal towards ‘incidental expenses’ such as conveyance, nourishment and attendant charges is just and proper and there is no scope for enhancement under this head.
10. Learned counsel for the appellant submits that claimant had availed Vacation Leave from 11.11.2010 to 30.11.2010 and Loss of Pay leave from 01.12.2010 to 28.01.2011 during treatment. Since appellant could not produce documents now sought to be produced by way of additional documents, the Tribunal declined to award compensation towards ‘loss of income during laid up period’ for the aforesaid period. Therefore, he prays for awarding salary of 78 days towards ‘loss of income during laid up period’ by relying upon documents now sought to be produced by way of additional documents.
Learned counsel for the insurer submits the documents now sought to be produced by way of additional documents were not produced in the claim petition before the Tribunal. Since, the claimant failed to produce documents regarding vacation leave and Loss of Pay leave availed, the Tribunal was justified in not awarding any compensation towards ‘loss of income during laid up period’.
It is not in dispute that the appellant sustained aforesaid injuries in a road traffic accident occurred on 10.11.2010 and he was treated as inpatient for 9 days from 10.11.2010 to 19.11.2010. The nature of injuries suggest that the claimant must have been under rest and treatment for a period of six months and therefore a sum of Rs.24,000/- is awarded towards ‘loss of income during laid up period’.
11. It is not the case of the claimant that after sustaining injuries, the claimant discontinued his employment. Therefore, awarding compensation towards ‘loss of future income’ does not arise.
12. Doctor has stated that the claimant has suffered disability of 24% to the limb and 8% to the whole body. Considering the same, a sum of Rs.25,000/- is awarded towards ‘loss of amenities’.
13. A sum of Rs.10,000/- awarded by the Tribunal towards ‘future medical expenses’ is just and proper and there is no scope for enhancement of compensation under this head.
14. Thus, the compensation awarded by the Tribunal is re-assessed as under:-
15. Accordingly, the appeal is allowed-in-part. The judgment and award passed by the Tribunal is modified to the extent stated herein above. The claimant is entitled for an additional compensation of Rs.19,000/- with interest at 6% p.a. from the date of claim petition till the date of realization.
16. The Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment and the same is ordered to be released in favour of the claimant.
In view of allowing of appeal, I.A.No.1/2014 filed for production of additional documents does not survive for consideration and it is disposed of accordingly.
No order as to costs.
Sd/- JUDGE VM