IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA MISCELLANEOUS FIRST APPEAL NO. 8492 OF 2016 BETWEEN:
The Branch Manager, M/s Bharathi AXA General Insurance Company Ltd., Plot No.3/9, Ground Floor, Niranjana building, Dr.Rajkumar Road, Hale Ananthapura Road, Bellary.
Now Rep. by its Manager, M/s Bharathi AXA General Insurance Company LTD., 1st Floor, FERNS ICON, Survey NO.28 Doddankundi Village, K.R.Puram Hobli, Bengaluru-560037 (By Sri. H.N. Keshava Prashanth, Advocate) …Appellant AND:
1. Bhagyamma W/o C.T.Siddesh Kumar, Now aged about 29 years, Vegetable Merchant, R/o Municipal Colony, Kelegote, Chitradurga-577501 2. H.M.Mahanthesha, S/o Ridramuniswamy, Now aged about 27 years, Owner of Car Reg NO.KA-35-N-3796, No.B-137, South Block, Donimali, Sanduru Taluk Bellary District-583101 …Respondents (By Sri. N.R. Harish for Sri. B.M. Siddappa For R1, Advocate.
Sri. B. Pramod for R2, Advocate) This Miscellaneous First Appeal is filed under section 173(1) of the Motor Vehicle Act, 1989, against the judgment and award dated 21.10.2016 passed in MVC No.281/2015 on the file of the Additional Senior Civil Judge, & IV Mact, Chitradurga, awarding compensation of Rs. 3,83,000/- with interest 8% P.A. from the date of petition till realization.
This M.F.A. coming on for admission this day, the court delivered the following:
JUDGMENT Heard the learned counsel appearing for the parties and perused the judgment and award passed by the Tribunal.
2. The insurer of offending vehicle aggrieved by the quantum of compensation awarded by the Tribunal has preferred this appeal seeking reduction of compensation.
3. As there is no dispute regarding certain injuries sustained by the first respondent-claimant in the road traffic accident occurred on 14.12.2014 due to rash and negligent driving of offending Mahindra XUV 500 car bearing registration No.KA-35-N-3796 by its driver and liability of the insurer of the said car only point remains for consideration in this appeal is:
Whether the compensation of Rs.3,83,000/- awarded by the Tribunal with interest at 6% p.a. is just and reasonable or does it call for reduction.
4. Sri. H.N. Keshav Prashanth learned counsel appearing for the appellant submits that the compensation awarded by the Tribunal particularly, towards pain and suffering is on the higher side, therefore he prays for allowing the appeal by reducing the compensation awarded by the Tribunal.
5. Sri. Harish N.R for Sri. B.M. Siddappa the learned counsel appearing for the respondents submits that whatever compensation amount awarded by the tribunal is just and proper and there is no scope for reduction and he prays for dismissal of the appeal.
6. As per the wound certificate Ex.P4 claimant had sustained proximal phalanx of left 4th and 5th toe with extra articular fracture of left calcaneum. She was treated for the fracture in toes by K wire fixation and for calcaneum fracture by application of POP. She underwent skin grafting over left foot. Injuries sustained and treatment undergone by the claimant were also evident from Ex.P5 – referral call, Ex.P8 - medical prescription 26 in numbers, Ex.P9 - medical bills 40 in numbers, Ex.P10 - photos, Ex.P12 -
disability certificate with prescription. Ex.P13 – X-rays 3 in number, Ex.P14 - Discharge card and supported by oral evidence of the claimant and the Doctor Ambarish who were examined as PW1 and PW4, respectively.
7. Considering the nature of injuries sustained and treatment undergone by the claimant Rs.2,00,000/- awarded by the tribunal towards pain and suffering is on the higher side therefore, she is awarded Rs.50,000/- under this head and it is reduced by Rs.1,50,000/-.
8. As per the medical bills claimant has spent Rs.
8400/- towards medical expenses and she was treated at Bowring Hospital, Bangalore, as inpatient for 4 days considering the same Rs. 50,000/- awarded by the tribunal towards medical and incidental expenses is on the higher side. During the treatment period she traveled from Chitradurga to Bowring Hospital at Bangalore and she was looked after by an attender, considering the same a sum of Rs.30,000/- is awarded towards medical and incidental expenses as against Rs. 50,000/- awarded by the Tribunal.
9. Claimant claims to have been earning Rs.10,000/- per month by doing business in vending vegetables but it is not supported by any documents. Hence, considering the age of the claimant as 34 years, the year of accident as 2014 and her avocation as daily wager, her income could be assessed at Rs.8000/- p.m. The nature of injuries sustained by the claimant would suggest that, she must have been under rest and treatment for a period of six months and therefore a sum of Rs.48,000/- is awarded towards loss of income during laid up period.
10. Doctor Ambarish – PW4 who had treated the claimant has stated that claimant has suffered disability of 28% to limb, if that is so, disability caused to whole body comes to 9.33% and it is rounded of to 10%. Income of the claimant is assessed at Rs.8000/- p.m., multiplier applicable to age group who was 34 years old at the time of accident as per medical records is 16. Therefore, ‘loss of future income’ would work out to Rs.1,34,000 (8 X 12 X 16) and it is awarded.
11. On account of injuries sustained, claimant may have to undergo certain amount of inconvenience and unhappiness in her future life, therefore a sum of Rs.40,000/- is awarded towards loss of amenities. Thus, claimant is entitled to following compensation,
12. In total claimant is entitled for a compensation of Rs.2,93,600/- as against Rs.3,83,000/- awarded by the Tribunal. Consequently compensation awarded by the tribunal is reduced by Rs.89,000/-.
13. Appeal is allowed in part. The judgment and award dated 21.10.2016 passed in MVC.281/15 by the tribunal stands modified whereby compensation awarded by the Tribunal is reduced by Rs.89,000/- and the claimant is entitled for compensation of Rs.2,93,600/- as against Rs.3,83,000/- with interest at 8% p.a.
14. The Insurance company is directed to deposit the compensation of Rs.2,93,600/- with the interest at 8% p.a., after deducting the amount, if any, already paid or deposited within a period of two months. Compensation amount shall be disbursed in terms of the award of the Tribunal.
The amount if any deposited before this Court is ordered to be transferred to the Tribunal for disbursement in terms of the award of the Tribunal.
No order as to costs.
akv SD/- JUDGE