IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K. SOMASHEKAR MFA NO. 5863/2015 (MV) BETWEEN BASAVARAJAPPA S/O A. S. VEERATTE GOWDA AGED ABOUT 49 YEARS R/O CHIKKA KANAGAL HOSAHALLI VILLAGE PALYA HOBLI, ALUR TALUK HASSAN DISTRICT ... APPELLANT (BY SRI. NAVENDRA GOWDA, ADVOCATE) AND 1. H. S. GIRISH S/O H. B. SHIVEGOWDA AGED 36 YEARS KAMATHI VILLAGE PALYA HOBLI, ALUR TALUQ HASSAN DISTRICT 2. THE UNITED INDIA INSURANCE COMPANY LIMITED BRANCH OFFICE, P.B.NO.108 VENKATESHWARA BUILDING B.M. ROAD, HASSAN – 573 201 ... RESPONDENTS (BY SRI. S. V. HEGDE MULKHAND, ADV. FOR R-2; NOTICE TO R-1 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 08.06.2015 PASSED IN MVC NO.608/2014 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE CALIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of the learned counsel appearing on both sides, the same is taken up for final disposal.
2. This appeal is directed against the Judgment and Award dated 08.06.2015 passed by the II Additional District and Sessions Judge and Additional MACT, Hassan, in MVC No.608/2014 in allowing the claim petition and awarding compensation of Rs.1,90,887/- with interest @ 6% pa. only on Rs.1,65,887/-, which is indicated in the operative portion of the impugned judgment and award.
3. The facts of the case in brief are that, on 04.06.2013 at about 7.30 p.m., the petitioner was proceeding by walk on the left side of the Tank Bund Gekaravalli Village, intending to go to Chikka Kanagalu Village, at that time, the rider of Motor Bike bearing Registration No, KA.13/J/0102 drove the same in a rash and negligent manner and dashed against the petitioner and caused accident, as a result of which, the petitioner fell down and sustained grievous injuries on different parts of his body. Immediately, he was shifted to Alur Government Hospital and thereafter, for better treatment he was shifted to Indira Poly Clinic at Mysore and thereafter on the advise of the Doctor, he was again admitted to Vinayaka Nursing Home at Mysuru on 21.06.2013 and as such he had incurred the medical expenses of Rs.1,50,000/-. It is also the case of the petitioner/claimant that he was hale and healthy, and he was working as a Contractor and in addition to that, he was also doing agricultural cultivation and was earning a sum of Rs.20,000/- per month. It is also the case of the petitioner/claimant that, due the said accident, he has suffered 16% disability to his right upper limb and deformity shortening over the right arm and upper limb and also a tenderness and Abnormal clotting on right arm humerus shaft. It is the further case of the appellant/claimant that, due to the said disability, he cannot perform his work as a contractor or an agriculturist, as earlier to the incident in question.
4. Before the trial Court, the appellant/claimant himself was examined as PW.1 and the Dr.-G. Marulasiddappa was examined as PW.2. In support of his case, the claimant has produced certain relevant documents viz., Ex.P11-Licence, Ex.P12- PWD Licence, Ex.P16-Income Tax Returns, Exs. P20 to P22- Taxi bills and Exs.P23 to P25- RTC Extracts and he has also produced Medical Documents through PW.2-Dr. G. Marulasiddappa viz, Ex.C1-Case Sheet, Ex.C2-X-ray Films and Ex.C3- OPD Record. On the side of the respondents viz., owner and Insurer, no one was examined and no document was produced to establish their case. Considering the case of the appellant/claimant.
5. After service of notice, respondent Nos. 1 & 2 appeared through their respective counsels. However, the 1st respondent did not file his written statement. The 2nd respondent being the Insurance Company, resisted the petition by filing the written statement contending that, the petition filed by the petitioner is not maintainable either in law or on facts and it denied all the allegations made in the petition and particularly it denied the mode of accident, age, income, occupation and nature of injuries sustained by the appellant/claimant and also the medical expenses stated to have been incurred by the claimant, and also he submitted that the claim made by the claimant is highly excessive, speculative and exorbitant, and prayed for dismissal of the claim petition.
6. Considering the facts and circumstances of the case, the tribunal has allowed the petition in part and awarded the compensation as noted above.
7. Heard the learned counsel for the appellant -claimant and the respondent No.2-Insurer and both of them have reiterated the contentions taken before the Tribunal.
8. On perusal of the records, it is noticed that, the Tribunal taking into consideration the above said documents viz., wound certificate, discharge summary medical bills, income tax returns, RTC Extracts etc., produced by the injured/claimant and also considering his evidence and also the evidence of PW.2-Doctor who treated him, assessed the monthly income of the injured at Rs.9,000/- and also assessed the permanent disability at 16% to the whole body and 5% to the particular limb. Therefore, being aggrieved by the findings recorded by the Tribunal, the appellant/claimant is before this court, seeking for suitable compensation.
9. Sri.S.V. Hegde Mulkhand, learned counsel appearing for Respondent No.2-Insurance Company has taken me through the evidence of PW.2-Dr.
G. Marulasiddappa, who treated the injured-PW.1 and submitted that the compensation awarded under the Head of loss of future earning capacity at Rs.59,400/- is found to be exorbitant and merely because the written statement has not been filed by the 1st respondent, it may not be recorded that the compensation awarded by the Tribunal is found to be justifiable or it is just and proper. Therefore, in this appeal, the learned counsel for the respondent No.2 has sought for intervention of this court to the impugned judgment and award. Further, he contended that, no strong evidence has been produced seeking enhancement of compensation by raising monthly income of the claimant/injured, and he prayed for dismissal of the appeal by confirming the impugned judgment and award passed by the Tribunal in MVC No.608/2014.
10. Having heard the learned counsel for the parties and having perused the records, it is evident that, there is no dispute about the claimant being met with the accident in question. Even perusal of the contents as per Exs. P11 to P13 reveal that he has paid income tax for the year 2007-08, 2008-09 and also 2009-10. But, the incident has taken place on 04.06.2013. Exs.P23 to P.25 clearly show that, the lands are standing in the name of the petitioner and he was doing agricultural cultivation. The records show that the injured was hospitalized for a period of five days. But the Tribunal has granted only Rs.30,000/- for pain and sufferings and Rs.1,500/- towards loss of earning during treatment.
11. In the facts and circumstances of this case, keeping in view the evidence of PW.1 and as well as the disability factor as certified by PW.2-Dr. Marulasiddappa, who treated PW.1-appellant/Claimant, if a global compensation of Rs.30,000/- with interest at 6% from the date of petition till the date of payment is awarded under the heads of ‘pain and sufferings’ and ‘loss of earning during the period of treatment’ for five days, it would meet the ends of justice. Accordingly, the following order is passed:
ORDER The appeal is allowed in part. Consequently, the judgment and award is modified. The appellant is entitled for a global compensation of Rs.30,000/- with interest at 6% pa. from the date of petition till the date of payment, in addition to the compensation amount awarded by the Tribunal in MVC No.608/2014.
The respondent No.2-Insurance Company is directed to deposit the above said global compensation with interest noted above, within four weeks from the date of receipt of a copy of this judgment.
Office is directed to draw the decree accordingly.
KGR* Sd/- JUDGE