IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 11TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.4564 OF 2015 (MV) BETWEEN THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD., NEAR KSRTC BUS STAND, CHITRADURGA, NOW REPRESENTED BY ITS, REGIONAL MANAGER, REGIONAL OFFICE, 2ND FLOOR, SUMANGALA COMPLEX, LAMINGTON ROAD, HUBLI-580 020.
(BY SMT. HARINI SHIVANANDA, ADVOCATE) AND 1. KENCHAPPA, 47 YEARS, S/O. PALAIAH, R/O. INGALADAL VILLAGE, CHITRADURGA TALUK, CHITRADURGA DISTRICT-577 501.
... APPELLANT 2. DR. PRABHU M.H., 37 YEARS, S/O. MURAL H.Y., R/O. DOCTOR QUARTERS, NO.A-5, SJMIT CAMPUS, CHITRADURGA-577 501.
... RESPONDENTS (BY SRI. R. SHASHIDHARA, ADVOCATE) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.03.2015 PASSED IN MVC NO.575/2013 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, MACT-4, CHITRADURGA, AWARDING A COMPENSATION OF RS.3,73,000/- WITH INTEREST @ 7% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, the same is taken up for final disposal with the consent of both the learned counsel.
The Insurance Company has filed this appeal aggrieved by the quantum of compensation awarded by the Tribunal in MVC No.575/2013, wherein a total compensation of Rs.3,73,200/- has been awarded to the Respondent No.1, injured-claimant who sustained injuries in a road traffic accident.
2. I have heard the learned counsel for the appellant and the learned counsel for Respondent No.2-Insurance Company.
3. The Respondent No.1-claimant filed a claim petition before the Tribunal, seeking a total compensation of Rs.5 Lakhs for the injuries sustained by him in a road traffic accident, which occurred on 29.07.2013.
4. It is the case of the claimant that on 29.07.2013, at about 4.50 p.m., while he was standing in front of Basaveshwara Hospital, by that time, the driver of car bearing registration No.KA-16-M-7578 drove the same in a rash and negligent manner from Basaveshwara Hospital parking stand to Chitradurga Town and dashed against him, as a result of which, he sustained fracture of right ankle, swelling tenderness over medial malleolus and other injuries all over the body and he was shifted to Basaveshwara Medical College Hospital, Chitradurga and thereafter shifted to the District Hospital, Chitradurga for treatment. It is his further case that he took treatment as an inpatient from 02.08.2013 to 16.08.2013 and he was operated and fixed steel nail and screw was fixed and POP was applied etc., According to the claimant, he was aged about 45 years and earning a sum of Rs.2 Lakhs per annum by working as a watchman and also having income from agricultural sources. The Tribunal awarded a total compensation of Rs.3,73,200/- under the following heads:
Pain and sufferings Rs.50,000-00 Medical and incidental expenses Rs.50,000-00 Permanent disability Rs.1,09,200-00 (10% of 6,500x12x14) Future Prospects (50% of Rs.6,500x12) Rs.39,000-00 Loss of amenities Rs.50,000-00 Future expenses Rs.50,000-00 Cost of litigation Rs.25,000-00 TOTAL Rs.3,73,200-00 5. The learned counsel appearing for the appellant-Insurance company would contend that the total compensation awarded is exorbitant in as much as the Tribunal has awarded compensation under the head future prospects, cost of litigation etc., which is uncalled for. It is contended that the compensation awarded under different heads are excessive and the same is not in accordance with law. Accordingly, the learned counsel seeks to allow the appeal.
6. Per contra, the learned counsel appearing for Respondent No.1-claimant contended that the total compensation awarded is just and reasonable in the facts and circumstances of the case. He would contend that the Tribunal has not awarded any compensation towards ‘loss of income during laid up period’. It is his submission that the Tribunal has taken the income at Rs.6,500/- per month, which is also on the lower side and therefore the total compensation awarded can not be said to be excessive and accordingly he seeks to dismiss the appeal.
7. The accident in question involving the offending vehicle i.e., car bearing registration No.KA-
16-M-7578 which was insured with the appellant herein and the actionable negligence on the part of its driver is not in dispute.
8. The evidence on record goes to show that the injured-claimant was shifted to Basaveshwara Hospital and from there to the Government Hospital, Chitradurga and he took treatment as an inpatient from 02.08.2013 to 16.08.2013. He was operated and steel nail and screw was fixed and POP was applied. According to the wound certificate, Ex.P-5, the injured had sustained right ankle swelling and tenderness over media malleolus. There was fracture of medial malleolus right ankle for which ORIF was done. As per Ex.P7 – the discharge summary of Basaveswara Medical College Hospital, he once again took treatment from 29.07.2013 to 31.07.2013. As per the disability certificate – Ex.P9 issued by the doctor PW-2, the claimant had suffered permanent disability of 22.77% with respect to the affected lower limb. In this regard, the Tribunal after considering the evidence on record, assessed the permanent disability to the whole body at 10% which is in my view is just and proper. The Tribunal after taking the income of the claimant at Rs.6,500/- per month and adopting the multiplier 14, awarded a sum of Rs.1,09,200/- towards ‘permanent disability’, which is just and reasonable.
9. The claimant took treatment as an inpatient totally for a period of eighteen days. He was operated with steel nail and screw was fixed. Considering the nature of injuries and treatment given and the disability suffered, the compensation of Rs.50,000/- awarded under the head ‘pain and suffering’ is just and reasonable.
10. According to the medical bills produced by the claimant, he had spent a sum of Rs.7,555/-. Though there is no conclusive evidence with regard to the future treatment, however, it cannot be said that the claimant will not incur any future medical expenses. The Tribunal has awarded a sum of Rs.50,000/- towards medical and incidental expenses. Considering that the claimant has incurred a sum of Rs.7,555/- towards medical expenses, I am of the view that Rs.50,000/- awarded under the head ‘medical and incidental expenses’ is on the higher side and accordingly, the claimant is awarded a sum of Rs.30,000/- under the said head.
11. The Tribunal has not awarded any compensation under the head ‘loss of income during laid up period’. Considering the period of treatment and also the injuries sustained by the claimant, the cost of litigation expenses awarded by the Tribunal i.e., a sum of Rs.25,000/- is adjusted towards the loss of income during laid up period.
12. The compensation awarded by the Tribunal towards loss of amenities is just and proper. However, the Tribunal has awarded a sum of Rs.39,000/- towards future prospects. The claimant is not entitled for the said amount in the facts and circumstances of the case. The same is awarded without any justifiable reason. Further, a sum of Rs.50,000/- awarded towards ‘future expenses’ is excessive. A sum of Rs.30,000/- is awarded under the said head. Hence, in all, the claimant is entitled for a total compensation of Rs.2,94,200/- as against Rs.3,73,200/- awarded by the Tribunal.
13. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 07.03.2015 passed by the I Addl. Senior Civil Judge, Chitradurga in MVC No.575/2013 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.2,94,200/- as against Rs.3,73,200/- with interest as ordered by the Tribunal.
Out of the compensation awarded in favour of the claimant, 50% with interest shall be released in his favour and remaining amount shall be kept in fixed deposit in any nationalized bank in his name for three years with liberty to draw periodical interest accrued thereon.
The amount in deposit shall be transmitted to the Tribunal.
Sd/- JUDGE snc