IN THE HIGH COURT OF KARNATAKA, AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO 4550 OF 2018(M V) BETWEEN B.M. ILIYAS S/O K. MOHAMMED AGED ABOUT 28 YEARS R/O BIDREHALLI VILLAGE MUDIGERE TALUK CHIKMAGALUR DISTRICT. ... APPELLANT (BY SRI. K. VENKATE GOWDA., ADV.) AND 1. MOHAMMED FAYAZ S/O MOHAMMED AGED ABOUT 34 YEARS R.C. OWNER OF MOTOR CYCLE NO.KA-18/W6351 R/O BIDRAHALLI VILLAGE MUDIGERE TALUK-577132.
2. THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE NRUTHYA SHREE COMPLEX M.G. ROAD MUDIGERE – 577132. ... RESPONDENTS (BY SRI.K.S. LAKSHMINARASAPPA ADV., FOR SRI B.C. SEETHARAMA RAO – ADV., FOR R-2 NOTICE TO R-1 DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.02.2018, PASSED IN MVC NO. 255/2014, ON THE FILE OF THE II ADDITIONAL DISTRICT AND MACT, CHIKKAMAGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FURTHER ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for appellant and learned counsel for the respondent - insurer, perused the records.
2. The injured-claimant has preferred this appeal, being not satisfied with the quantum of compensation awarded in the impugned judgment dated 19.02.2018, passed by the Tribunal in MVC No.255/2014, seeking enhancement of compensation.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 24.08.2013 at about 9.30 a.m. while the claimant was proceeding in Motor Cycle bearing No.KA-18/W 6351 as a pillion rider from his house at Kushalnagar, Bidrahalli village to Darga Masjid at Bidrahalli Village, the rider of the motor cycle who was going in a high speed went to the left side of K.M.Road to avoid the on coming KSRTC Bus. As a result, the rider of the motor cycle lost his control, got skid and fell on the road, along with the motor cycle on the pillion rider which resulted in this accident. Due to this, the claimant sustained multiple injuries on all over his body and his left hand was also fractured. Immediately he was shifted to MGM Hospital, Mudigere and from there he was shifted to Unity Health Complex, Mangalore and treated there as an in patient and from there he was treated by private doctors in Chikmagalur and Krishna Nursing Home, Bangalore as an outpatient. He was earning more than Rs.30,000/- per month as a business man. As the accident took place due to the rash and negligent driving of the first respondent, the claimant filed the petition seeking compensation.
4. After service of notice, respondent No.1 remained exparte. Respondent No.2 insurer entered their appearance and filed written statement denying the petition averments. Based upon the pleadings, issues were framed. In order to establish the case, claimant got examined PW.1 and got marked documents as per Ex.P1 to P11. Further, Doctor who treated him was examined as CW.1 through a court commissioner and marked Ex.C.1 and C2. On the side of the respondent no evidence was adduced. The Tribunal after hearing the arguments on both sides, passed the impugned judgment by awarding compensation in a sum of Rs.163,000/- with interest @ 6% p.a. from the date of petition till the date of deposit except on the sum of Rs.20,000/- granted towards future medical expenses which shall not carry any interest. It is this judgment which is challenged under this appeal seeking enhancement of compensation.
5. Learned counsel for the appellant/claimant contends that the compensation awarded by the Tribunal is inadequate, unreasonable and meager. The judgment and award passed by the Tribunal is contrary to law, probabilities, evidence and documents available on record. He contends that the appellant has sustained fracture of left humorous and sustained permanent disability of 33% and has taken treatment at various hospitals. Due the above said injuries and permanent disabilities he has sustained severe pain. The compensation awarded by the Tribunal under various heads is on lower side and the same needs to be enhanced. On these grounds, learned counsel for the appellant/claimant seeks for intervention of this Court and enhancement of compensation.
6. Per contra, the learned counsel appearing for the respondent - insurer contends that the accident has taken place due to rash and negligent driving of the driver of KSRTC bus and the first respondent did not possess valid driving license at the time of the accident. Further, he submitted that the tribunal, on appreciation of the evidence and material on record has rightly assessed the income of the injured and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
7. On careful evaluation of the material on record, it is seen that the injured claimant had sustained injuries in a motor vehicle accident that occurred on 24.08.2013. Ex.P2 is the complaint given by the claimant himself which states that the driver of offending Motor Bike bearing Reg.No.KA-18W-6351 was being driven in a rash and negligent manner and as a result the accident occurred. No contra evidence is adduced by the respondents to negate the case of the claimant. Hence, the Tribunal has rightly held that the accident has happened due to rash and negligent act of the first respondent. Ex.P11 is the copy of driving license of first respondent which reflects that it was a valid driving license at the time of accident. According to Ex.P4 – wound certificate the claimant has suffered the fracture of left humerus and the same is corroborated by Ex.C2 X-ray and the evidence of Doctor- CW.1. The Tribunal has awarded Rs.20,000/- under the head ‘pain and suffering’. Since the claimant has sustained grievous fracture and considering the nature of injuries, the compensation awarded under this head is on lower side and it is enhanced by another sum of Rs.20,000/-.
8. Ex.P8 – Discharge summary and the evidence of CW.1 reflect that the appellant was an inpatient at Unity Health Complex Hospital, Mangalore from 24.08.2013 to 28.08.2013. Considering this aspect the Tribunal has awarded Rs.20,000/- under the head ‘Conveyance, nutrition and attendant charges’ which appears to be on lower side. Hence, the same is enhanced by another sum of Rs.20,000/- under this head.
9. Ex.P10 – is the trade license and Ex.P.6 is the copy of income tax returns produced by the appellant in proof of his income. Considering these documents, the Tribunal has assessed the income of the appellant at Rs.16,000/- p.m. and has awarded Rs.48,000/- under the head ‘loss of earnings during laid up period’ which is just and proper and needs no interference.
10. CW.1 the Doctor has opined in his evidence that the appellant has suffered permanent physical disability to the tune of 33%. But the appellant has not produced subsequent income tax returns to show what exactly is the loss in the earning capacity. Considering this aspect the Tribunal held that the appellant has not suffered any kind of functional disability. CW.1 – Doctor has suggested that one more surgical procedure is required to remove the implant and the same would involve future medical expenses. Considering the testimony of PW.1 and CW.1 the Tribunal has awarded Rs.20,000/- towards future medical expenses. But the same appears to be on lower side and needs to be enhanced. Therefore, an additional sum of Rs.15,000/- is awarded under the head ‘future medical expenses.
11. The Tribunal has not awarded any compensation towards loss of amenities. Having regard to the nature of injuries sustained by the claimant, period of treatment undergone by the injured and consequential disability sustained by him, a sum of Rs.20,000/- is awarded under the head ‘loss of amenities’.
12. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Thus, in all, the claimant is entitled to total compensation of Rs.2,38,000/- as against Rs.1,63,000/- awarded by the tribunal.
Accordingly, the appeal is allowed in part. The impugned judgment and award dated 19.02.2018 passed by the MACT in MVC No.255/2014 is hereby modified. The claimant is entitled for an enhanced compensation of Rs.75,000/- with interest @ 6% p.a. from the date of petition till realisation. Respondent-insurer shall deposit the enhanced compensation with interest before the tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest and deposit is concerned, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE DKB