IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 1791 OF 2015 (MV) BETWEEN C. SHADAKSHARI S/O CHITTANNA AGED ABOUT 42 YEARS AGRICULTURIST R/O. KARIOBANEHALLI, HIRIYUR TQ, CHITRADURGA DIST. – 572143 NOW R/O. CHIKKAPURA VILLAGE CHITRADURGA TQ. & DIST. - 577501 ... APPELLANT (BY SRI. SPOORTHY HEDGE NAGARAJ - ADVOCATE) AND 1. M/S. THE RELIANCE INSURANCE CO. LTD., BY ITS BRANCH MANAGER, BRANCH OFFICE P.B. ROAD, CHITRADURGA – 577501.
2. CHIDANANDAREDDY S/O. SREENIVASAREDDY, MAJOR OWNER OF THE BUS NO. KA-16-A-3913 R/O. SRE TRAVELS HEAD POST OFFICE ROAD CHITRADURGA – 577501. ... RESPONDENTS (BY SRI. H. C. BETSUR – ADVOCATE FOR R-1; NOTICE TO R-2 DISPENSED WITH VIDE COURT ORDER DATED 28.06.2017.) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 1.12.2014 PASSED IN MVC NO. 706/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, C.J.M & MACT – III, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellant - claimant and the learned counsel for the Insurance Company - Respondent no.1 and perused the records. Notice to the owner – Respondent No.2 has been dispensed with vide order dated 28.6.2017.
2. The injured-claimant has preferred this appeal, being not satisfied with the quantum of compensation awarded by the Tribunal in its impugned judgment dated 01.12.2014 in MVC No.706/2013, seeking enhancement of compensation.
3. The factual matrix is that on 31.07.2013 at about 1.30 p.m., when the appellant was proceeding as a pillion rider on a motor cycle bearing Regn. No.KA-06-
EF-8486 ridden by one Chikkanna in moderate speed, when they neared Gannayakanahalli, the driver of a bus bearing Regn. No.KA-16-A-3913 came in a rash and negligent manner and dashed against their motor cycle as a result of which the appellant and the rider fell down and sustained injuries. The appellant sustained fracture of tibia and fibula of right leg and 1/3rd of right radius bone and was provided first aid in Government Hospital, Chitradurga and thereafter he had taken treatment as an in-patient in Guru Shree Hi-Tech Hospital at Bengaluru for about 15 days. Hence, he filed a claim petition before the Tribunal seeking compensation.
4. After service of notice, the owner of the offending vehicle – Respondent No.2 did not appear and was placed exparte. However, the Insurer – Respondent No.1 appeared before the tribunal and filed its written statement and contested the claim petition. During the enquiry before the tribunal, the claimant has established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer.
5. The Tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the driver of the offending vehicle and consequently awarded total compensation of Rs.4,08,000/- with interest at 6% per annum from the date of petition till the date of realization.
6. The learned counsel for the appellant - claimant vehemently contended that it is evident from the Wound Certificate at Exhibit P6, medical certificates and X-rays that the appellant had sustained fracture of right tibia and fibula and 1/3rd of right radios bone and other bodily injuries. Though the Doctor had assessed his limb disability at 34% to the right leg and 17% to the right forearm, the Tribunal has arbitrarily fixed the disability at 15%. Further, though he was an agriculturist aged 40 years and was earning Rs.5,00,000/- annually, the Tribunal has taken his income at 7,150/- which is very meagre for an accident of the year 2013. Moreover, the appellant could not attend to his work for a minimum period of five months.
Further, as far as ‘Conveyance and Incidental expenses’, the Tribunal has just awarded a sum of Rs.10,000/- which is very much on the lower side, since the appellant had taken treatment as an in-patient for 15 days and as an outpatient for several months.
Hence, he contends that the compensation under the said head should be enhanced suitably. Further, the Tribunal has erred in not awarding any compensation towards ‘amenities’. Since he had undergone surgery for insertion of implants and required surgery for removal of the same, he has to be awarded compensation towards future medical expenses and future happiness and comforts.
7. The learned counsel further contends that the Tribunal was wrong in making denouncing observations regarding the appellant’s character that though the appellant did not hold a Driving licence, he created a false story stating that his friend Chikkanna was riding the motorcycle, just to claim compensation. The Tribunal thus holding that the appellant himself must have contributed his negligence to the extent of 25% for the occurrence of the accident, requires to be set aside and he prays that entire liability be fastened on the Insurance Company.
On all these grounds, the learned counsel contends that the compensation may be suitably enhanced by this court, having regard to the nature of injuries suffered by the appellant.
8. Per contra, the learned counsel appearing for the insurer 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, and has rightly held 25% contributory negligence on the part of the appellant himself, which does not call for interference and prays for dismissal of the appeal.
9. On careful evaluation of the material on record, it is seen that the injured claimant had sustained fracture of right tibia and fibula and 1/3rd of right radios bone and other injuries. He was treated as an in-patient for 15 days and also had taken treatment as an outpatient. But however, it is seen from the record that there was a malunion of fractures and hence his treatment period has been extended even longer. It is due to the said fact that the Doctor had assessed the limb disability at 34% to the right leg and 17% to the right forearm. However, the Tribunal has taken the whole body disability at 15%, which I find is slightly on the lower side. Hence, the disability to the whole body is hereby assessed at 16%. Further, the Tribunal taking the notional income of the deceased at Rs.5,500/- and adding 30% towards future prospects has arrived at an income of Rs.7,150/-, which also I find is on the lower side. Since the accident is of the year 2013, I hereby consider his income at Rs.8,000/- as per the settled norms. Hence, taking Rs.8,000/- as the income and 16% permanent disability and with ‘14’ multiplier, the compensation towards ‘Permanent disability’ comes to Rs.2,15,040/- (8000 x 12 x 14 x 16/100) as against Rs.1,80,264/- awarded by the Tribunal.
Further, since the appellant must have suffered great pain and suffering due to fractures and malunion of fractures, I hereby enhance the compensation towards ‘Pain and suffering’ by an additional sum of Rs.10,000/-.
Further, in view of taking the monthly income at Rs.8,000/-, compensation towards ‘Loss of income during treatment and laid up period’ comes to Rs.40,000/- as against Rs.27,500/- awarded by the Tribunal.
Further, I find that the compensation awarded by the Tribunal towards ‘Conveyance and incidental charges’ is also on the lower side and it is hereby enhanced to another Rs.15,000/- in addition to Rs.10,000/- granted by the Tribunal.
As regards compensation towards ‘Loss of amenities’, the Tribunal has not granted any compensation. Since the appellant had suffered great discomfort and inconvenience due to the fractures, I hereby award a sum of Rs.40,000/- towards ‘Loss of amenities’. However, the compensation awarded by the tribunal under other heads is just and reasonable and does not call for interference.
The total enhanced compensation would come to Rs.1,12,040/-. Thus, in all, the claimant is entitled to a total enhanced compensation of Rs.5,20,040/- as against Rs.4,08,000/-awarded by the tribunal.
10. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Attendant charges Conveyance and incidental charges Loss of amenities
Nil 40,000 40,000 4,08,000 Total (rounded figure) 1,12,040 5,20,040 11. The Tribunal by its judgment had attributed 25% contributory negligence to the appellant herein. As regards the said aspect is concerned, the Tribunal in its judgment has passed general remarks that nowadays fake cases have been increased just to claim compensation from the Insurance Companies by suppressing the real facts. Without even any evidence either oral or documentary to prove the allegation that the accident had occurred due to the negligence of the appellant, the Tribunal has proceeded to hold that the appellant must have contributed his negligence to the extent of at least 25% for the occurrence of the accident. I feel that the said view of the Tribunal needs to be deprecated, since the said view of the Tribunal is based on assumptions and presumptions. Accordingly, the Tribunal fixing 25% contributory negligence on the appellant is hereby set aside. The entire liability is hereby fastened on the Respondent No.1 - Insurance Company. Hence, I proceed to pass the following:
O R D E R The appeal is allowed in part. In modification of the impugned judgment and award dated 01.12.2014 passed by the Tribunal in MVC No.706/2013, the compensation payable to the claimant is enhanced from Rs.4,08,000/- to Rs.5,20,040/-. The enhanced compensation would come to Rs.1,12,040/-. The first respondent-insurer shall deposit the enhanced compensation with interest in addition to the compensation already awarded, before the tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimant, in terms of the award, 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 KS