IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B.A.PATIL M.F.A.No.4645 of 2010 (MV) BETWEEN D.R.VENKATESH BABU S/O D.V.RAMAKRISHNA SHETTY MERCHANT, AGED 45 YEARS R/O BANAVARA TOWN ARSIKERE TALUK HASSAN DISTRICT. …APPELLANT (BY SRI NARENDRA PATGAR, FOR SRI LOKESH KUMAR K S, ADVOCATE) AND 1. PRASHANTHA KUMAR S/O M.S UPADYA, CATERER R/O NEAR RAMA MANDIR BANAVARA, ARSIKERE TALUK HASSAN DISTRICT (DRIVER OF T.V.S. VEHICLE BEARING No.KA-13-Q-3661) 2. S.R NAGARAJU S/O RANGAPPA R/O SARVEKOPPALU GRAMA BANAVARA HOBLI ARSIKERE TALUK HASSAN DISTRICT (DRIVER OF T.V.S. VEHICLE BEARING No.KA-13-Q-3661) 3. BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD., P.B.No.112, SRI MANJUNATHESHWARA COMPLEX BUS-STAND ROAD, HASSAN.
…RESPONDENTS (BY SRI G.V.NARASIMHA MURTHY, ADVOCATE FOR R1 NOTICE TO R2 DISPENSED WITH V/O DATED 26.11.2014, SRI K.R.NAGRAJU, FOR SMT.GOWHAR UNNISA, ADVOCATE FOR R3) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 12.03.2009 PASSED IN MVC No.20/2008 ON THE FILE OF THE CIVIL JUDGE (SR.DN), AND ACJM AND MACT, ARASIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard. The appeal is admitted.
With the consent of the learned counsel appearing for the parties, the appeal is taken up for Final Disposal.
This appeal is filed by the appellant/claimant assailing the judgment and award dated 12.3.2009 passed in MVC No.20/2008 by the Senior Civil Judge and ACJM and MACT, Arasikere, for enhancement of compensation.
2. The brief facts of the case leading to filing of the petition are that on 4-11-2007 at about 7.45 p.m. petitioner-D.R. Venkatesh Babu, was proceeding on his bicycle to his home on Banavara-Arasikere road, at that time, TVS Victor Motor Cycle bearing Registration No.KA.13.Q.3661 belonging to respondent No.2, driven by respondent No.1 came in a rash and negligent manner and dashed to the bicycle on which the petitioner was proceeding. As a result, petitioner fell down and sustained fracture to his right leg and he also sustained abrasion and other injuries. Immediately, he was shifted to Banavara Hospital and thereafter, he was shifted to Government Hospital, Arasikere, where he took treatment as an inpatient for the said injuries and he spent huge amount for treatment. It is further contended that at the time of accident, petitioner was running a Provision Store and earning more than Rs.10,000/- per month and as such, he filed the claim petition claiming compensation of Rs.6.00 Lakhs.
3. After issuance of notice, respondent No.2 remained absent and he was placed exparte. Respondent Nos. 1 and 3 appeared and filed their written statement.
4. Respondent No.1 in his written statement has contended that petitioner was proceeding on his bicycle by carrying excess load, immediately he came across the road and he himself caused the accident and as such, he is not liable to pay any compensation. Further, he contended that the said vehicle was insured with the respondent No.3 and respondent No.3 has to indemnify the compensation. On these grounds he prayed for dismissal of the petition.
5. Respondent No.3 filed its written statement denying the contentions of the petition. Further, it is contended that the liability of the company is subject to the terms and conditions of the policy and the said accident has taken place because of the fault on the part of the petitioner himself. It is further contended that petitioner has also contributed to the said accident and as such, he is also liable to the extent of 50%. On these grounds he prayed for dismissal of the said petition.
6. On the basis of the above pleadings, the Tribunal has framed the following issues as under:
1. Whether the petitioner proves that on 4/11/2007 at about evening 7.45 p.m. in front of Manjunatha Welding shop, Arasikere road, petitioner suffered injuries due to the rash and negligent driving of the driver of the TVS Victor Vehicle bearing Reg. No. KA.13.Q.3661?
2. Whether the petitioner is entitled for compensation?
3. If so, what amount and from which respondent/s?
4. What order or award?
7. In order to prove the case, petitioner got examined himself as PW1, examined one more witness, Dr. K.P.Hebbar as PW2 and also got marked Exs.P1 to P12. On behalf of the respondents, no evidence had been let in.
8. After considering the facts and materials on record, the Tribunal passed the judgment where under the claim petition came to be allowed in part, awarding the compensation of Rs.65,000/- with interest at the rate of 6% p.a. from the date of petition till its payment. By assailing the said judgment, the appellant-claimant is before this Court.
9. I have heard the learned counsel for the appellant and the learned counsel appearing on behalf of respondents and perused the records.
10. The main ground urged by the learned counsel for the appellant is, that the income of the petitioner taken by the Tribunal is on the lower side though the petitioner was running Provision Store and was earning Rs.10,000/- per month. He further contended that the petitioner has also suffered permanent disability, but the said aspect has not been considered and appreciated by the Tribunal. He further contended that the compensation awarded towards pain and sufferings, loss of income, loss of amenities, towards traveling expenses, food nourishment and attendant charges is also on the lower side. On these grounds, he prays for allowing the appeal by enhancing the compensation.
11. Per contra, learned counsel appearing on behalf of the respondent No.3/Insurance Company vehemently contended that the compensation awarded by the Tribunal is just and proper and therefore, he prays to dismiss the appeal by confirming the judgment and award passed by the Tribunal.
12. The accident in question so also the offending vehicle insured with the respondent No.3/Insurance Company is not in dispute. As could be seen from the judgment and award passed by the Tribunal, claimant had contended that he was running a Provision Store by investing huge amount and was earning Rs.10,000/- per month, but the Tribunal has taken his income at Rs.100/- per day and at Rs.3,000/- per month and awarded an amount of Rs.9,000/- towards loss of income for three months. Though the learned counsel for the appellant contended that, appellant/petitioner was running a Provision Store, but in order to substantiate the said fact, he has not produced any documents. Under such circumstances, the Tribunal by taking notional income of Rs.3,000/- per month has awarded Rs.9,000/- towards loss of income during the laid up period. But the said compensation awarded by the Tribunal appears to be on the lower side. Even in the absence of any material to show that the appellant/petitioner was earning Rs.10,000/- per month from his business, the Tribunal ought to have taken Rs.4,000/- per month as his income, which is the yardstick which would be applied under the normal circumstances, even in the settlement at Lok Adalath and if the same is taken into consideration in this case, it would be just and proper. Therefore, it is just and proper to take Rs.4,000/- per month as the income of the appellant/petitioner and award an amount of Rs.12,000/- towards loss of income during laid up period for three months as against Rs.9,000/- per month awarded by the Tribunal and accordingly, it is awarded.
13. Even as could be seen from the judgment and award, by considering the fracture and other injuries sustained by the petitioner, the Tribunal ought to have awarded an amount of Rs.20,000/- towards loss of amenities, as it is the case of the appellant/claimant that he was running a Provision Store by investing huge amount. If he is running a Provisional Store, definitely, he has to lift heavy luggage and move around. Hence, Rs.20,000/- is awarded towards loss of amenities as against Rs.5,000/- awarded by the Tribunal.
14. Insofar as an amount of Rs.40,000/- awarded towards pain and suffering appears to be just and proper and there is no good grounds to enhance any amount under the said head, as the Doctor who has been examined as PW2 has categorically deposed that fracture has been healed and it has been completely united and there is no deformity as on the date when he has examined the petitioner. Under such circumstances, there is no question of enhancement of any amount under this head.
15. Insofar as compensation awarded under the head medical expenses is concerned, the Tribunal after considering the medical bills has calculated the total amount to the extent o Rs.4,305/- and it has been rounded to Rs.5,000/- towards medical expenses and whatever expenses he has incurred has been awarded and the same appears to be just and proper.
16. Further, the Tribunal has awarded Rs.2,000/- towards traveling expenses during his treatment period. But as could be seen from the records, he has attended follow up treatment and plaster was also removed. Under such circumstances, appellant is entitled to Rs.4,000/- towards traveling expenses as against Rs.2,000/- awarded by the Tribunal.
17. Since the appellant/petitioner has sustained fracture to his right leg and he has taken treatment for a period of three months and during the said period he might have taken some assistance of an attendant. But the Tribunal has not awarded any amount under the said head. Even he might have taken assistance of an attendant for the purpose of running his Provision Store. In that light of the matter, if an amount of Rs.10,000/- is awarded towards attendant and other charges, it appears to be just and proper and accordingly, it is awarded.
18. Insofar as compensation awarded towards food and nourishment is concerned, whatever the amount awarded by the Tribunal appears to be just and proper.
Thus, the petitioner is entitled for modified compensation as under:
Injury, pain and suffering Rs.40,000/-
Loss of income during laid up period Rs.12,000/-
Loss of amenities Rs.20,000/-
Traveling expenses Rs.04,000/-
Medical expenses Rs.05,000/-
Food and nourishment Rs.04,000/-
Attendant and other incidental charges Rs.10,000/-
Total Rs.95,000/-
19. Keeping in view the above facts and circumstances, after deducting a sum of Rs.65,000/- which has been awarded by the Tribunal from Rs.95,000/-, the appellant is entitled to an additional compensation of Rs.30,000/- with interest at the rate of 6% p.a. from the date of petition till its payment.
20. Accordingly, the appeal is partly allowed and the impugned judgment and award dated 12th March 2009 passed in MVC No.20/2008 by the Tribunal is modified as indicated above.
Respondent No.3/Insurance Company is directed to deposit the enhanced compensation with interest within six weeks from the date of receipt of a copy of this judgment.
Registry is directed to draw the award accordingly.
tsn* Sd/- JUDGE