IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR MISCELLANEOUS FIRST APPEAL NO.1509 OF 2016 C/W.
MISCELLANEOUS FIRST APPEAL NO.754 OF 2016 IN MFA NO.1509 OF 2016 BETWEEN:
SMT. DURUGAMMA W/O. SHIVANNA AGED ABOUT 52 YEARS AGRICULTURIST RESIDENT OF KODAGAVALLI NOW RESIDING AT CHIKKABENNUR CHITRADURGA TALUK & DISTRICT - 577 501 (BY SHRI SIDDESWARA N.K., ADVOCATE) AND:
1. M.D.ABUBAKAR SIDDIQ S/O. K. IBRAHIM MAJOR, OWNER OF BUS BEARING REG. NO.KA-16/A-2820 R/O. OPP. CANARA BANK NAYAKANAHATTY CHALLAKERE TALUK CHITRADURGA DISTRICT - 577 522 .APPELLANT 2. CHOLAMANDALAM M.S. GENERAL INSURANCE CO., BRANCH OFFICE HUBLI-580 020, REPRESENTED BY ITS MANAGER .RESPONDENTS (BY SHRI O. MAHESH, ADVOCATE FOR R2; R1 IS SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.11.2015 PASSED IN MVC NO.386/14 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE AND IVTH MACT AT CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.754 OF 2016 BETWEEN:
THE BRANCH MANAGER CHOLAMANDALAM M.S. GENERAL INSURANCE CO., BRANCH OFFICE HUBLI-580 020 BY THE CLAIMS MANAGER CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED UNIT NO.04, NINETH FLOOR (LEVEL - 06) "GOLDEN HEIGHTS" COMPLEX 59TH 'C' CROSS INDUSTRIAL SUBURB RAJAJINAGAR, 4TH 'M' BLOCK BENGALURU - 560 010 BY ITS SENIOR MANAGER - CLAIMS (BY SHRI O. MAHESH, ADVOCATE) .APPELLANT AND:
1. DURUGAMMA, AGED ABOUT 52 YEARS W/O. SHIVANNA RESIDENT OF KODAGAVALLI NEW RESIDING AT CHIKKABENNUR CHITRADURGA TALUK & DISTRICT - 577 501 2. M.D.ABUBAKAR SIDDIQ MAJOR, S/O. K. IBRAHIM R/O. OPP: CANARA BANK NAYAKANAHATTY, CHALLAKERE TALUK, CHITRADURGA DISTRICT - 577 501 .RESPONDENTS (BY SHRI SIDDESWARA N.K., ADVOCATE FOR R1 R2-SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.11.2015 PASSED IN MVC NO.386/14 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE AND IVTH MACT, CHITRADURGA, AWARDING COMPENSATION OF RS.2,60,000/- WITH INTEREST @ 8% P.A., FROM THE DATE OF PETITION TILL DATE OF DEPOSIT.
THESE MFAs' COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT Heard Shri Siddeshwara N.K., learned advocate for the claimant and Shri O.Mahesh, learned advocate for the Insurance Company.
2. Though, these appeals are listed for admission, with the consent of learned Advocates on both sides, the same are heard on merits for final disposal.
3. MFA No.1509/2016 is filed by the claimant/injured and MFA No.754/2016 is filed by the insurance company.
4. The claimant was traveling as a passenger in a bus which met with an accident due to bursting of a tyre, as a result of which, she sustained fracture to her left leg. She filed a petition claiming compensation contending that she had suffered 44% permanent disability to the lower limb. The tribunal has recorded that the medical prescriptions as per Exs.P10(1) to (3) are undated and do not support the claim. The claimant has approached the Doctor to get a disability certificate after one year four months after she was discharged from the hospital. It is mentioned in the certificate that the claimant has suffered 44% permanent disability to lower limb. Based on these findings, the tribunal has come to the right conclusion that if claimant had suffered 44% disability, she would have approached the doctor regularly for her further treatment after discharge.
5. Insurer has challenged the award passed by the Tribunal on the ground that the compensation of Rs.1,00,000/- awarded towards 'pain and sufferings' and Rs.25,000/- towards 'Future expenses' is not supported by any reasons. Shri O.Mahesh, learned advocate for the insurer seeks modification of the award under the above heads.
6. I have carefully considered the rival contentions and perused the records.
7. EX.P6 is the wound certificate. Ex.P8 and Ex.P9(1) show that claimant was inpatient from 11.02.2014 to 27.02.2014. She has undergone surgery for reduction of fracture in her left leg. As per the medical bills, claimant has incurred medical expenditure of Rs.1,08,386/-.
8. It is not in dispute that the claimant was treated as an inpatient for a period of 17 days. She has suffered fracture of left leg. In the circumstances, it would be appropriate to award a sum of Rs.40,000/- towards 'pain and suffering'.
9. Shri O.Mahesh, is right in his submission that in the absence of any evidence, compensation towards future expenses cannot be granted. However, compensation awarded under the head 'loss of amenities' is less and same requires to be enhanced to Rs.40,000/- as against Rs.25,000/- awarded by the tribunal. The tribunal has not awarded any compensation towards transportation, diet nourishment and attendant charges. Hence, same is quantified at Rs.10,000/-
10. In the circumstances, the quantum of compensation is re-computed as follows:
LLLLLLLLLLLL TOTAL : Rs.2,28,386/- LLLLLLLLLLLL 11. Shri O.Mahesh, also submitted that the bus did not have permit to ply between Chitradurga to Nayakanahatti via Belagatta Hayakal route, where the accident has taken place. Therefore, the insurer is not liable to indemnify the *owner.
12. Learned advocate for the appellant opposed this contention placing reliance on the decision of Amrit Paul Singh & Anr Vs. TATA AIG General Insurance Co. Ltd. & Ors., reported in 2018 (7) SCC 558. The Hon'ble Supreme Court in the said case has directed payment of compensation with liberty to recover the same from the owner and the driver of the vehicle. In the circumstances, ends of justice would be met by passing similar direction.
Hence, the following:
ORDER (i) Appeal filed by insurer in MFA No.*754/2016 is allowed-in- part;*Appeal filed by the claimant in MFA No.1509/2016 is dismissed.
(ii) Claimant shall be entitled to a total compensation of Rs.2,28,386/- payable with interest at 8% from the date of claim till the date of realization.
* Corrections carried out vide Court order dated 14.10.2020.
(iii) The insurer shall deposit the amount within four weeks from the date of receipt of a copy of this order.
(iv) Insurer shall be at liberty to recover the amount from the driver *and the owner of the bus.
(v) The registry shall send the amount in deposit to the tribunal for disbursement in accordance with law.
No costs.
Sd/-
JUDGE HJ *Corrections carried out vide Court order dated 14.10.2020.