IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA M.F.A.NO.10978/2010(MVC) BETWEEN B.C.VENKATESH S/O CHIKKABBIAH AGED ABOUT 41 YEARS R/AT NO.286, 1ST MAIN JAKKASANDRA LAYOUT KORAMANAGALA BANGALORE (By SRI M ANIL KUMAR, ADVOCATE) AND 1. THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO LTD NO.49, JYOTHI MAHAL ST MARKS ROAD BANGALORE-560001 2. MR RAMACHANDRAPPA S/O NARAYANAPPA BALAGARANAHALLI NERALUR POST ANEKAL TQ, BANGALORE DISTRICT ... APPELLANT ...RESPONDENTS (By SRI R GUNASHEKAR, ADVOCATE, FOR R-1; SRI G K VARADA REDDY, ADVOCATE, FOR R-2) MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:13.7.2007 PASSED IN MVC NO.3729/2004 ON THE FILE OF IX ADDITIONAL JUDGE, MEMBER, MACT-7, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION, FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is by the claimant challenging the judgment and award passed by the Tribunal on the ground of liability as well as quantum.
2. With the consent of learned counsel appearing for parties, the appeal is heard and disposed of finally. Judgment and award passed by the Tribunal is also perused.
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 3.12.2003 due to the rash and negligent riding of a motor cycle bearing registration No.KA-05-EH-4962 by its rider, the points that arise for consideration in the appeal are:
“1.Whether the finding of the Tribunal on liability is sustainable in law?
2. Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?”
5. Sri Prakash H.C. learned counsel appearing for the claimant submits that claimant having traveled as pillion in the offending two wheeler, insured under the package policy, his risk is covered. The Tribunal without considering the same has committed an error in not fastening the liability on the insurer of the offending vehicle. Regarding quantum, learned counsel submits the amount of compensation awarded by the Tribunal is on lower side. Therefore, he prays for allowing the appeal both on the ground of liability and quantum.
6. Sri Gunashekar, learned counsel appearing for the insurer of the offending two wheeler does not dispute that the offending two wheeler was insured under the package policy and policy was in force at the time of accident. If that is so, the risk of the claimant who traveled as a pillion rider in the offending vehicle is covered under the said policy. Hence, finding of the Tribunal on liability is modified. Liability is fastened on the insurer of offending two wheeler and point no.1 is answered accordingly.
7. Regarding quantum, Sri Gunashekar, learned counsel for the insurer submits that quantum of compensation awarded by the Tribunal is just and reasonable and there is no scope for enhancement.
8. As per the wound certificate Ex.P-5, the claimant had sustained the fracture of accetabulam with posterior dislocation of left hip and the Doctor has opined that the injury is grievous in nature.
The injuries sustained and treatment underwent by the claimant are also evident from Ex.P-6 certificate issued by the hospital, Ex.P8 and P9 – discharge summaries, Ex.P10 – X-ray report, Ex.P11 – photographs, Ex.P12 – Medical bills, Ex.P.14- Advance receipts, Ex.P15-Prescriptions, Ex.P16 to 21 – Inpatient records, Ex.P22- outpatient record and supported by the oral evidence of the claimant and doctors, who were examined as PWs-1, 2 and 3 respectively. PW-3 an Orthopaedic surgeon has deposed in his evidence that movements of left hip and left knee are restricted and painful, there is swelling present over the left leg, ankle and foot, there is limping while walking due to shortening of the left lower limb. He has assessed the disability for the left lower limit at 40% and 20% to the whole body. Considering the nature of injuries sustained by the claimant, a sum of Rs.1,00,000/- is awarded towards ‘pain and suffering’ as against Rs.50,000/- awarded by the Tribunal.
9. As Rs.4,77,294/- awarded by the Tribunal towards ‘medical expenses’ is based on the medical bills produced by the claimant, it is just and proper and there is no scope for enhancement under this head.
10. The claimant was treated as inpatient at Victoria Hospital, Mahaveer Jain Hospital and Agadi Hospital, Bangalore. Considering the duration of treatment a sum of Rs.65,000/- is awarded towards ‘incidental expenses’ such as conveyance, nourishment and attendant charges as against Rs.25,000/- awarded by the Tribunal.
11. Considering the disability stated by the doctors and an amount of discomfort and unhappiness the claimant has to undergo in his future life, a sum of Rs.1,00,000/- is awarded towards ‘loss of amenities’ as against Rs.30,000/- awarded by the Tribunal.
12. The claimant claims to have been earning Rs.10,000/- per month by doing agriculture. But the same is not substantiated by producing necessary records. In the absence of proof of income, considering his age as 36 years, year of accident as 2003 and avocation as daily wager, his income assessed by the Tribunal at Rs.3,000/- per month is just and proper.
The nature of injuries suggest that he must have been under rest and treatment for a period of ten months and therefore a sum of Rs.30,000/- is awarded towards ‘loss of income during laid up period’ as against Rs.18,000/- awarded by the Tribunal.
13. The claimant is aged about 36 years at the time of accident, and multiplier applicable to his age group is 15. His income is assessed at Rs.3,000/- p.m. The Tribunal has rightly taken the disability caused to the whole body at 20% as stated by the Doctor. So, ‘loss of future income’ works out to Rs.1,08,000/- (3000 x 15 x 12 x 20/100) and the same has been rightly awarded by the Tribunal.
14. Considering the nature of injuries, a sum of Rs.25,000/- is awarded towards ‘future medical expenses’.
Thus, the claimant is entitled for the following compensation:-
HEADS Rs.
1 Pain and suffering 1,00,000=00 2 Medical Expenses 4,77,300=00 3 Incidental expenses 65,000=00 4 Loss of income during laid up period 30,000=00 5 Loss of amenities 1,00,000=00 6 Loss of future income 1,08,000=00 7 Future medical expenses 25,000=00 TOTAL 9,05,300=00 15. Accordingly, the appeal is allowed-in-part.
The judgment and award passed by the Tribunal is modified both on liability as well as quantum. Liability is fastened on the insurer of offending vehicle. The claimant is entitled for a total compensation of Rs.9,05,300/- with interest at 6% p.a. from the date of claim petition till the date of realization excluding interest for the delayed period of 1109 days in preferring the appeal.
16. The Insurance Company is directed to deposit the compensation amount together with interest within two months from the date of receipt of a copy of this judgment. From which, a sum of Rs.4,00,000/- with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Post Office for a period of five years and with a right of option to withdraw interest periodically. Remaining amount with proportionate interest is ordered to be released in favour of the claimant immediately after the deposit.
17. The Tribunal while releasing the amount is also directed to issue the Fixed Deposit slip, so as to enable the claimant to withdraw the deposit amount on its maturity without approaching the Tribunal once again and the Bank is directed to release the fixed deposit amount without insisting for any further order from the Tribunal.
18. Release of amount and issuance of Fixed Deposit slip shall be done on the same day.
19. The Tribunal is directed to transfer the remaining amount into the SB Account of the claimant by effecting RTGS if possible.
No order as to costs.
SD/- JUDGE DKB